Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR5440
NEEDHAM, J.
Appellant Edward J. Munoz was tried before a jury and convicted of first degree murder with a criminal street gang special circumstance and an enhancement for personal use of a dangerous or deadly weapon. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22), 12022, subd. (b)(1).) He contends: (1) the prosecution used its peremptory challenges to exclude three Native Americans on the jury panel, and the trial court erred in denying the defense motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the prosecution’s special instruction on aiding and abetting misstated the intent necessary for a conviction under that theory; (3) the trial court improperly rejected a defense instruction on third party culpability; (4) the criminal street gang special circumstance must be reversed because there was no corpus delicti apart from appellant’s out of court statements; and (5) the special circumstance was not supported by the evidence. We affirm.
Further statutory references are to the Penal Code.
I. FACTS
Leah Leister lived in the Clearlake Apartments with her five-year-old son. She was a daily methamphetamine user and other people often used the drug in her apartment. On the morning of March 11, 2002, Nichole McGall found Leister dead in her bedroom having received a total of 17 stab wounds in her neck, torso and extremities. McGall was a friend who had spent the night at Leister’s and had fallen into a deep sleep on her living room couch after using methamphetamine for two days. A plastic bag was partially draped over Leister’s head and her hands and feet were bound with duct tape. A glass methamphetamine pipe lay next to her body. There was a substantial amount of blood on the bed and floor where the body was lying.
Appellant, who had been romantically involved with Leister, often stayed with his current girlfriend Desiree Lopez at her apartment in the same complex. Both appellant and Lopez were methamphetamine users and appellant sometimes went to Leister’s apartment to socialize and smoke methamphetamine. John Jackson, who was on parole at the time, frequently stayed with his girlfriend Kathaleen McDaniel at the Clearlake Apartments. Jackson and McDaniel were also methamphetamine users. Jackson had met appellant about a month before Leister’s murder and they occasionally used methamphetamine together. The day after the murder, Jackson went to the town of Gerber to find a new home, and about a week later, appellant helped him move there.
Detective Hermann of the Clearlake Police Department conducted an initial interview with appellant about the murder on March 22, 2002. Appellant said Leister’s death was drug-related and she had “pissed people off,” but denied that he was involved. He claimed to have been at his girlfriend’s apartment on the night Leister was killed.
Jackson was also interviewed by police after his arrest on a parole violation. He was reluctant to speak because he feared retaliation. Jackson was told he would not be appointed an attorney because he was in custody on a parole violation only. He was advised his statements would not be used against him. No promises were made that he would not be prosecuted, although he was promised that he could serve the sentence for his parole violation in county jail instead of prison due to his safety concerns. Jackson told the officers his version of events and was visibly upset and shaken when he described what had happened.
Detective Hermann interviewed appellant again on April 15, 2002, after Jackson spoke to them. Appellant said he knew who had killed Leister but was afraid to talk. He told police that Jackson had killed Leister because she was “screwing over too many people” and a lot of the “dope” she sold belonged to “Northern.” On the night of the murder, Jackson had met appellant at Lopez’s apartment and told him that “they” wanted everyone in Leister’s apartment killed, including Leister, her son and her guest McGall. Appellant protested that he was not going to have Leister’s son killed. Jackson told him to talk to the “homies” and soon after “the homies” called. They acquiesced to appellant’s request to spare the boy, but said appellant would have to be punished for failing to follow orders.
As will be explained in greater detail later in this opinion, “Northern” appears to be a reference to the Nuesta Familia prison gang, the affiliated Norteños street gang, and the associates of these organizations.
According to appellant, Jackson left and came back at about 3:00 a.m. He had a bulge in his pocket that appellant assumed to be duct tape. They went to Leister’s apartment and met her at the front door. She let them in and Jackson asked to buy some drugs. McGall was sleeping in the living room. Jackson went into Leister’s bedroom while appellant went to the bathroom. When appellant came out of the bathroom and went into Leister’s bedroom, she had already been killed and Jackson was putting a bag over her head. Jackson said he had stabbed her once to get the “air hole.” Appellant was not sure why McGall, who was asleep on the couch, was not killed as well; it might have been because appellant was telling Jackson to hurry up and leave.
Appellant told Detective Hermann that after the killing, Jackson told him to get rid of their clothes. They went back to their apartments to change and Jackson handed him his clothing in a white trash bag. Appellant got blood on his own clothes from handling Jackson’s clothing. He put his own clothes in a separate bag, put both bags in a laundry basket, and hid the clothes on the reservation. He agreed to show the police where he had dumped the clothing.
At appellant’s direction, Detective Hermann and other officers went to a wooded area on the Elem Indian Colony about seven or eight miles from the Clearlake Apartments where the murder was committed. They found appellant’s clothes, including a pair of jeans and a sweatshirt, scattered on the ground. Inside the pockets of the jeans was a roll of duct tape that had almost been used up and was smeared with blood. Under the jeans was a folded buck knife with blood stains on the handle and blade, as well as a torn photograph of appellant. Jackson’s clothes, including his nylon jogging pants and a hooded sweatshirt, were inside a plastic bag.
Detective Hermann examined the clothing at the station and found wet blood stains on the crotch and leg area of appellant’s jeans. A large amount of blood was on the front of appellant’s sweatshirt and on the ends of its sleeves, and a few spots of blood were on appellant’s white belt. The only blood found on Jackson’s clothing was a spot about the size of a dime on his nylon jogging pants.
After the clothing was recovered, appellant agreed to continue the interview with Detective Hermann. He told him Leister’s apartment was a halfway house used by Northerners for drugs. Leister had been “pinching” people’s bags by mixing the drugs with baking powder or baking soda, and she had “burned” some Northerners for about a quarter ounce of methamphetamine. For this reason, an order to kill her had issued from Pelican Bay prison. Appellant did not know who made the order, but he received a phone call from Northern homies who told him to go with Jackson and help him. Jackson was supposed to kill Leister and her friend McGall, and appellant was supposed to kill Leister’s son, but he protested. Appellant said he had no choice but to go with Jackson because he would have been killed if he had refused.
Appellant told Detective Hermann that he went to the bathroom after they arrived at Leister’s apartment and when he came out, Leister was lying on the floor with her legs taped together and Jackson was putting a bag over her head. He did not help Jackson or come in contact with the body. Appellant explained that he got blood on his clothing when he threw his clothes in the same bag as Jackson’s. Appellant also described a second version of events to Detective Herman, in which he saw Jackson approach Leister from behind and slit her throat. Leister tried to walk toward appellant but fell, and he got blood on his clothing when he caught her. Appellant gave her a hug because he didn’t know what else to do.
Appellant was charged with murder accompanied by a criminal street gang special circumstance and an allegation that he had personally used a knife in the commission of the offense. (§§ 187, subd. (a), 190.2, subd. (a)(22), 12022, subd. (b)(1).) The case proceeded to a jury trial at which the following evidence (in addition to that already described) was presented:
Dewey Barnes, Jr. was visiting Desiree Lopez’s apartment on the night of the murder. He noticed that appellant had a large roll of duct tape and a knife and was acting paranoid. According to Lopez, appellant left the apartment and later returned, telling Lopez to go to bed as he walked into the bathroom. Lopez initially told police that she saw blood on appellant when he returned, but testified that at trial that she did not see any blood.
Kathaleen McDaniel reported that on the night of the murder, appellant came to see Jackson at her apartment. Appellant and Jackson left and when Jackson returned 20 or 30 minutes later, McDaniel saw him go into the bedroom to change his clothes. He put the clothes in a plastic bag and handed them to appellant outside the apartment.
Jackson testified that when appellant came to his apartment on the night of Leister’s murder, he told Jackson he was going to Leister’s to beat up a man named Gilly or Gilberto. Appellant wanted Jackson to watch his back, and Jackson agreed because they were both affiliated with the Northerners. Jackson had associated with Northerners in prison but not on the streets, and he knew appellant was a Northerner because of his tattoos and because appellant had told him so.
Gilberto Lopez was a friend of Leister’s and visited her apartment on the day of the murder. Gilberto Lopez testified at trial that he did not know appellant or Jackson.
Jackson met up with appellant in front of Leister’s apartment as appellant was knocking at her door. Leister came up behind them and let them in. McGall was sleeping on the couch. Leister, appellant and Jackson went into Leister’s bedroom and closed the door, and she started to pack a pipe with methamphetamine. Appellant removed a knife from behind his leg, walked over to Leister, grabbed her by the hair, pulled her head back, whispered something in her ear, and ran the knife across her throat. Leister fell back on the bed and appellant repeatedly stabbed her upper body as she begged him to stop and reminded him she had a son. Appellant told her, “Shut up. If not, the boy dies too.” Jackson left the bedroom because he was scared and did not want to be involved. He heard the struggle continue inside the bedroom. Thinking that someone was knocking at the front door, he returned to the bedroom where appellant was still stabbing Leister.
Appellant held Leister’s head and made a jerking motion as if to break her neck and told Jackson, “She won’t die.” He handed the knife to Jackson and Jackson stabbed Leister’s neck because he believed that appellant wanted him involved to “keep the secret safe.” Appellant grabbed Leister’s feet and Jackson taped them and gave appellant back the roll of tape. He told Jackson, “That’s the way they want it.”
As they were leaving the apartment, appellant pointed to McGall where she lay on the couch and said she should also be killed, but Jackson told him, “Let’s just go.” Appellant was covered in blood and they went back to their apartments and changed clothes. Jackson gave his clothes to appellant in a plastic bag.
The clothing that appellant and Jackson were wearing on the night of the murder (which, as discussed earlier, was recovered by police with appellant’s assistance) was analyzed by a forensic DNA analyst who concluded that the blood found on appellant’s sweater and jeans and Jackson’s sweatpants was Leister’s. A forensic criminalist concluded that whoever was wearing the sweater and jeans had closer contact with the victim than the person who wore the nylon sweatpants. The forensic criminalist concluded that the blood on the crotch and thigh area of appellant’s jeans were consistent with straddling the victim during the stabbing, and it was unlikely the person who committed the crime would have only a few drops of blood on his clothing. Hairs found on the blade of the knife recovered with the clothing matched Leister’s and appellant’s right thumb print was found on the knife.
Steven Kinney had been incarcerated with appellant in the Lake County Jail in March or April of 2004. They had a number of conversations in which appellant said he had killed the “bitch” or “fucking bitch” by stabbing her in the bedroom. Appellant seemed to enjoy what he had done and said he planned to put the blame on his crime partner, who had been in another room at the time of the killing. Kinney was soon to be released, and appellant offered him $5,000 plus some methamphetamine to kill his girlfriend (Lopez) because she was “a rat” who had told police he returned home covered with blood on the night of the murder. Asked about the child appellant had with his girlfriend, appellant told Kinney, “Kill the kid, too.”
A special agent from the Department of Corrections and Rehabilitation testified as a gang expert and offered an opinion that appellant was an active participant in the Norteños gang and that the murder of Leister was committed to further the activities of the Norteños.
Appellant testified at trial and claimed that on the day of the murder, he decided to go to Leister’s apartment to beat up Gilberto Lopez. Jackson accompanied him at his request and they ended up in Leister’s bedroom preparing to smoke methamphetamine. To appellant’s surprise, Jackson drew a knife across Leister’s throat. Appellant held Leister and told her he was sorry and didn’t know that would happen. Jackson directed him to discard their clothing. Appellant lied to the police when he told them that Leister was killed over drugs and was related to the Norteños. He made up that information because he wanted Jackson to be punished more severely. Appellant acknowledged that he became friends with Jackson in part because of their gang affiliation, although he denied being an actual Northerner or committing crimes for the Norteños. He denied asking Kinney to kill his girlfriend.
II. DISCUSSION
A. Batson/Wheeler
Appellant, who is Native American, argues that he was denied a fair trial because the prosecution used its peremptory challenges to exclude three of the five Native American prospective jurors on the panel and no Native Americans were seated on the jury. We disagree.
In addition to the three jurors excused by peremptory challenge, the court excused for hardship reasons prospective juror R.B., the tribal chairperson for the Elem Indian Colony. After the jury was sworn, but before opening statements, the court excused for cause an alternate juror described by defense counsel as “the only Native American juror that we have” after it came to light that the juror had failed to disclose information about his prior arrests and convictions. Appellant does not challenge the court’s decision as to either of those two jurors.
Both the state and federal Constitutions prohibit the use of peremptory challenges during voir dire to remove prospective jurors due to their presumed group bias based on membership in a racial, ethnic or other cognizable group. (J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129; Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Claims of discrimination are evaluated using a three-step analysis. First, a party objecting to a peremptory challenge on this basis must establish a prima facie case of group bias “ ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129.) Second, the party making the allegedly discriminatory peremptory challenge must offer a justification for excusing the juror. (Ibid.) Third, the trial court must decide whether the party objecting to the challenge has shown that it was motivated by group bias. (Ibid.)
1. Proceedings Below
The prosecutor in this case exercised his third and fourth peremptory challenges against prospective jurors B.L. and J.L. B.L., a 58-year-old computer programmer with two grandchildren, stated on her written questionnaire that she was Native American. In response to questioning by the prosecutor during voir dire, she indicated that she had sat on a jury in an armed robbery case in 1990 that was unable to reach a verdict. When the prosecutor noted that she had not answered some of the questions on the questionnaire, including one asking whether she had had any positive or negative experiences with police officers, she stated she hadn’t “had any contact either way.” She thought she recognized defense counsel from a case in Clearlake in which she had been called for jury duty, but that case was dismissed and she did not think it would affect her ability to serve on the jury in appellant’s case.
Juror J.L. was only briefly questioned during voir dire about the effect of medication he had mentioned in his questionnaire (which he stated he was no longer taking), but he provided detailed answers on many other subjects in his written questionnaire. A 66-year-old retired delivery truck driver with a history of other blue collar employment and some training in computers or business, he indicated, among other things, that he had been discharged from the military as “undesirable” in 1960 (though that status was “cleared” in 1972); that he had been prosecuted for auto theft in 1957 and was incarcerated for nine months; that he had been released from the army so the civilian authorities could pursue this case; that he had been a victim of domestic violence and did not believe he had been treated fairly when it was reported; and that he had been treated “quite badly” by Fremont police officers who apparently suspected him of some offense.
Defense counsel made a motion under Wheeler/Batson to challenge the dismissal of these two jurors, arguing that the prosecution had excused them because they were Native Americans. The prosecutor responded that he did not believe J.L. was Native American, but the trial court determined that a prima facie case had been made by the defense and called upon the prosecutor to state his reasons for the peremptory challenges.
The prosecutor explained that as to B.L., “She has a couple of prior marriages. She indicated that she had... been a juror in [a] previous criminal case and they were unable to come to a verdict. I don’t know if she was the hangup or if it was numerous people or what the problem was, but it causes me to have some concern. [¶] She did not answer the questions about whether—on her questionnaire about whether or not her prior jury service would influence the way she looks at the criminal justice system or whether or not it affected her desire to serve as a juror. [¶] She did not indicate with respect to question No. 35 whether or not that prior jury service experience, she would be able to set that aside and decide the evidence presented at the trial in this case solely on the evidence presented. [¶] She also, on question 55, did not indicate whether or not she’d had any positive or negative experiences with police officers. [¶] With respect to whether or not she watches any programs related to police activities or investigation, she indicated that she does not watch any of those programs, which indicates to me that she does not have any interest in—at all in law enforcement, or at least causes me to have some concern that she might not, in combination with her failure to answer the questions about whether or not she’d had any positive or negative experiences with law enforcement officers. [¶] She indicated to me that she believed she met [defense counsel] before in Clearlake. I question whether or not—or she’d seen him in Clearlake.... I don’t know if [defense counsel] has ever practiced law down in Clearlake. [¶] And then she also—I believe she had been in the county for some period of time, five years. She did not indicate that she knew any potential witnesses at all in this case. [¶] So the combination just causes me to have some doubts as to whether or not she would be a decent juror for the People in this case. And that, based on we’ve gone through I think 92 juror questionnaires, I had to make a list of people that I think would be the best jurors and those that wouldn’t. And she was somewhat lower on the list than the people I would prefer to keep on the jury.”
As to J.L., the prosecutor gave the following reasons: “Well, overall, I was just very uncomfortable—would be uncomfortable with him as a juror. I notice in his—different factors. He’s been twice divorced. His reading—or his writing, I can’t hardly read. He was discharged from the military as an undesirable. He indicates that it was since cleared in 1972, but I don’t know what that means. He was at least initially in 1960 discharged from the military service as an undesirable. [¶] He has no experience serving as a juror in a criminal case. He has in the past been accused... of auto theft. That was back in 1957. And he did admit that the was treated fairly in those cases, but that’s just one other factor to consider. [¶] He indicated that he had previously been a victim of domestic violence and he doesn’t—believes he wasn’t treated fairly by law enforcement when it was reported, so I had some concern about whether or not he might be biased toward law enforcement because of that. [¶] He indicated, question no. 55, that he has had negative experiences with law enforcement. He didn’t indicate that he had any positive experiences with law enforcement. [¶] And then the last thing would be that he’s lived in this county six and a half years... and he didn’t indicate that he knew any potential witnesses in this case. This causes me to have some concern about whether or not he does any socializing or he’s a loner or what. So it’s that combination of things is the reason that I felt he would not be an appropriate juror for us.”
After hearing the prosecutor’s explanation, the court denied the Batson/Wheeler motion, concluding that B.L. and J.L. had been excused for race-neutral reasons stated by the prosecutor rather than because of their status as Native Americans. Voir dire continued, and included the questioning of prospective juror C.G.
On his questionnaire, C.G. indicated he would not be able to assess the testimony of a police officer using the same standards used to test the credibility of other witnesses. He noted that cops had a “budy code” [sic]. He could not be completely open minded and impartial because “wuder [sic] is he framed or did he do it?” He had seen the prosecutor before “on my cort [sic] case.” Under questioning by counsel, C.G. stated that while he would not prejudge the case, he had strong feelings about the gang allegations and would have a hard time being impartial if the case involved a gang member attacking someone who was not part of the gang.
The prosecutor used a peremptory challenge to excuse C.G. and defense counsel made a second Batson/Wheeler motion, stating that he believed C.G. was Native American based on his physical appearance and his membership in the California Indian Basket Weavers Association. Additionally, when asked whether he was a citizen of the United States in his questionnaire, he responded, “yes Y/Native.” The prosecutor disputed that C.G. was Native American. He explained, however, that he had excused C.G. because of his limited intelligence, as evidenced by the responses to the questionnaire as well as the prosecutor’s personal knowledge of him as a member of the community. The court concluded there was no prima facie showing that C.G. was Native American and denied the Batson/Wheeler motion on that basis.
2. Analysis
As a threshold mater, a party who objects to a peremptory challenge on Batson/Wheeler grounds must raise the issue in a timely fashion, make as complete a record as feasible, and establish that the juror at issue is a member of a cognizable class. (People v. Gray (2005) 37 Cal.4th 168, 186.) Because the trial court is in the best position to observe a prospective juror, its factual findings on a Batson/Wheeler motion are accorded great deference. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
Turning first to the prosecutor’s peremptory challenge made to C.G., we consider whether substantial evidence supports trial court’s conclusion that there was no prima facie case of discrimination because the defense did not demonstrate C.G. was in fact Native American. (People v. Smith (2005) 35 Cal.4th 334, 346-347.) The defense pointed to three circumstances suggesting C.G. was a Native American: his physical appearance, his membership in an Indian Basket Weavers group and his description of his American citizenship as “Native.” The trial court was in the best position to assess C.G.’s physical appearance, and we defer to its implicit conclusion that C.G. was not obviously a Native American. There was no showing that membership in the basket weaving association required tribal membership or Native American heritage. Finally, the reference to “Native” citizenship appears more likely to be an indication that C.G. acquired his United States citizenship at birth rather than through naturalization. Substantial evidence supports the court’s conclusion that the defense failed to demonstrate the juror’s membership in a cognizable class.
Although we need not reach the issue, we note that the jury questionnaire submitted by C.G. was replete with grammar and spelling errors. The overall tenor of the questionnaire responses tends to support the prosecutor’s explanation that he excused C.G. because he believed he did not have the intellectual sophistication desirable in a juror hearing a complex murder trial.
Turning next to the dismissal of J.L. from the jury, we consider whether substantial evidence supports the trial court’s determination that, in light of the neutral reasons offered, the prosecutor did not engage in purposeful discrimination. (People v. Jurado (2006) 38 Cal.4th 72, 104-105 (Jurado);.) “[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339.) The credibility of a prosecutor’s stated reasons “can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” (Id. at p. 339.) The plausibility of those reasons will be reviewed, but not reweighed, in light of the entire record. (People v. Hamilton (2009) 45 Cal.4th 863, 907.)
Comparative juror analysis is one tool for reviewing claims of discriminatory intent at the third stage of a Batson/Wheeler motion. (Snyder v. Louisiana (2008) 552 U.S. ___ [170 L.Ed.2d 175, 128 S.Ct. 1203, 1211] (Snyder); Miller-El v. Dretke (2005) 545 U.S. 231, 241-252 (Miller-El II); People v. Lenix (2008) 44 Cal.4th 602, 607, 621-622 (Lenix). When the defendant relies on a comparative analysis and the record is adequate to permit the comparisons, the analysis must be performed on appeal even when it was not conducted below. (Lenix, supra, at p. 607.)
Several race-neutral reasons suggest that J.L. would not have been a desirable juror for the prosecution. He had been dishonorably discharged from the military, charged with and apparently convicted of theft (his questionnaire indicated that he had served time in the Deuel Vocational Institute), and he had had negative experiences with law enforcement. Additionally, while the trial court had found a prima facie case necessitating an explanation from the prosecutor, it was entitled to credit the prosecutor’s explanation that he did not believe J.L. was a Native American. From these circumstances, the court could reasonably conclude the peremptory challenge of J.L. was not motivated by presumed group bias based on his (possible) Native American heritage.
Appellant offers a number of arguments as to why the reasons relied upon to dismiss J.L. were pretextual: (1) J.L.’s status as someone who had been twice divorced could not have been a valid reason when the prosecutor accepted two jurors who had been twice divorced and four jurors who had been once divorced; (2) the prosecutor’s claim that J.L.’s handwriting on his questionnaire was illegible was not supported by the record; (3) the prosecutor did not ask J.L. for clarification about his discharge from the military, even though he relied on this as a reason to dismiss J.L. from jury service; (4) J.L.’s lack of experience in serving on a criminal trial could not have been a valid reason when a number of jurors accepted by the prosecution had no criminal jury experience either; (5) it was “implausible” the prosecutor would rely on a 50-year-old theft accusation to excuse a juror; (6) one juror accepted by the prosecution also reported a negative experience with law enforcement; (7) J.L.’s noted unfamiliarity with any of the witnesses in the case, despite his residency in Lake County, was not a legitimate reason when nine of the fourteen jurors and alternates who were seated similarly did not know any witnesses and in any event, knowing a witness was a circumstance that would just as easily trigger a challenge.
Appellant’s use of a comparative juror analysis does not persuade us that the trial court erred in denying the Batson/Wheeler motion. It is clear from the prosecutor’s explanation that he did not rely on any single circumstance when he excused J.L. It is equally clear that while some of the reasons given by the prosecutor for excusing J.L. applied to other jurors who were ultimately seated, none of the seated jurors had the same combination of characteristics as J.L. “While an advocate may be concerned about a particular answer, another answer may provide a reason to have greater confidence in the overall thinking and experience of the panelist. Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.” (People v. Lenix, supra, 44 Cal.4th at p. 631; see also People v. Cruz (2008) 44 Cal.4th 636, 660.)
We finally consider the prosecutor’s challenge to B.L. The court could reasonably conclude that the prosecutor excused B.L. for the nondiscriminatory reasons stated: among other things, that she had previously sat on a criminal jury that had not reached a verdict, that she did not watch television shows about the police, suggesting a lack of interest in law enforcement, and that she had not given answers on the questionnaire about positive or negative experiences with law enforcement. It is true that unlike J.L. and C.G., B.L. did not describe experiences or express views suggesting an overt antipathy toward law enforcement or the authorities. But the prosecutor’s explanation shows that while he did not necessarily believe B.L. was unsuitable as a juror, he had concluded that there were others on the panel of 92 people who would make better jurors from the prosecution’s perspective. This was a plausible explanation in light of her responses when they are viewed as a whole.
As with J.L., appellant argues that a number of circumstances suggest the reasons offered to exclude B.L. were pretextual: (1) the fact she had “a couple” of prior marriages was not a valid reason when two alternate jurors had been divorced twice and other jurors had been divorced once; (2) the prosecution could not have reasonably relied on her prior jury experience on a criminal case where no verdict was reached when two other jurors whom he accepted had served on juries that did not return a verdict; (3) the prosecutor’s observation that B.L. had not answered some questions on the questionnaire was equally true of other jurors, and could not have been an actual reason for excusing B.L. when he did not follow up on voir dire by asking her about the omitted responses; (4) though the prosecutor noted that B.L. had not answered a question on the questionnaire as to whether she had had any positive or negative experiences with law enforcement, six seated jurors had not answered the same question and the prosecutor failed to ask B.L. any follow-up questions on the subject; (5) other jurors who were accepted did not watch television police shows; (6) the record did not support the prosecution’s stated assumption that B.L. was untruthful or mistaken about seeing defense counsel in the Clearlake courthouse; (7) it was anomalous to rely on B.L.’s indication that she did not know any potential witnesses when a number of the jurors seated also did not know any witnesses and there was no reason “a law-abiding 58-year old grandmother would know any witnesses here.”
The ultimate question is not whether the prosecutor was correct in his assessment of B.L.’s desirability as a juror, but whether he excused her for a discriminatory reason. The prosecutor is presumed to use peremptory challenges in a constitutional manner and deference is given to the court’s ability to distinguish “bona fide reasons” from “sham excuses.” (People v. Avila (2006) 38 Cal.4th 491, 541.) Though it is possible to parse the individual reasons given by the prosecution and conclude many of those reasons applied to other jurors, appellant acknowledges that none of the seated jurors shared the particular combination of traits that the prosecutor found worrisome. “[P]otential jurors are not products of a set of cookie cutters.” (Miller-El II, supra, 545 U.S. at p. 247, fn. 6.) “Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (Lenix, supra, at p. 624; see also Jurado, supra, 38 Cal.4th at p. 105.)
Finally, we reject appellant’s suggestion that under Snyder, we should not accord any deference to the trial court’s ruling because it failed to specify which of the prosecution’s proffered reasons it found credible. (See Snyder, supra, 552 U.S. at p. ___ [128 S.Ct. at p. 1209].) In Snyder, the Supreme Court declined to presume that the trial court had accepted the prosecutor’s explanation that he had exercised a peremptory challenge based in part on the juror’s nervousness when the trial court did not comment on this reason in its ruling. (Ibid.) Here, the trial court specifically found that the challenges were made for the race-neutral reasons given by the prosecutor. Moreover, those challenges were not related to juror demeanor, which cannot be effectively evaluated based solely on the appellate record absent factual findings by the trial court. (See Lenix, supra, 44 Cal.4th at p. 634 [conc. opn. of Moreno, J.].) We accord the customary appellate deference to the trial court’s factual finding that the prosecutor exercised his peremptory challenges for the race-neutral reasons stated, and conclude that the trial court’s denial of the Batson/Wheeler motion was supported by substantial evidence. (Lenix, supra, at pp. 613-614.)
B. Special Instruction on Aiding and Abetting
The case was tried on the theory that appellant was guilty either as the person who actually stabbed Leah Leister or as an aider and abettor to the killing. The trial court gave the prosecution’s special instruction on aiding and abetting, which, among other things, stated: “A person may aid and abet a criminal offense without having agreed to do so prior to the act. It is not necessary that the perpetrator of the crime expressly communicate his criminal purpose to the aider and abettor since that purpose may be apparent from the circumstances. [¶] Factors which may be considered in making the determination of aiding and abetting include: presence at the scene of the crime, companionship, conduct before and after the offense, and any other relevant factors. [¶] Aiding and abetting does not require participation in a[n] agreement to commit an offense, but merely assisting in committing the offense. [¶] Serving as a lookout for the perpetrator knowing that the perpetrator intended to commit the crime can be sufficient to constitute aiding and abetting.”
Appellant argues that the special instruction misstated the law by suggesting an aider and abettor need not have the specific intent to commit the charged offense. He also claims that the factors listed in the instruction as indicia of aiding and abetting are misleading because they do not themselves establish the necessary knowledge and intent. The people respond that the instructions as a whole were not misleading, because CALCRIM No. 401 properly advised the jurors that to convict appellant under an aiding and abetting theory, they must find that he “knew that the perpetrator intended to commit the crime,” and “intended to aid and abet the perpetrator in committing the crime.” (See People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.)
The special instruction cannot be read in isolation, but must be considered as part of the instructions as a whole to determine whether there is any reasonable likelihood the jury interpreted it in an impermissible manner. (See People v. Smithey (1999) 20 Cal.4th 936, 963-964.) We agree with the People that CALCRIM No. 401 described the knowledge and intent necessary for a conviction under an aiding and abetting theory, and nothing in the special instruction suggested these elements need not be proven.
In any event, we need not decide whether the special instruction had the potential to be misleading. The presentation of a legally inadequate theory of guilt does not require reversal when it is possible to determine from other portions of the verdict that the jury necessarily convicted the defendant based on a legally correct theory. (People v. Chavez (2004) 118 Cal.App.4th 379, 390; People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Here, the jury returned a true finding on the allegation that appellant personally used a deadly or dangerous weapon (a knife) under section 12022, subdivision (b)(1). In so doing, it necessarily and unanimously concluded that appellant was a direct perpetrator, and not merely an aider and abettor. Any error in the prosecution’s special instruction was harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 502-503 [instruction that misstates element of offense subject to review under harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24].)
Although the instruction on the knife use allegation stated that a person “uses a deadly or dangerous weapon” if he or she “displays the weapon in a menacing manner” or “stabs someone with the weapon,” there was no evidence from which a rational jury could have concluded that appellant merely displayed a knife in a menacing manner for the purpose of aiding and abetting the killing. In finding the knife use allegation true, the jury determined that appellant stabbed Leister.
C. Instruction on Third-Party Culpability
Appellant argues that the trial court erred when it rejected his request for the following jury instruction on third party culpability: “Evidence has been offered that a third party, John Jackson, is the perpetrator of the charged offense. It is not required that the defendant prove that fact beyond a reasonable doubt. In order to be entitled to a verdict of not guilty, it is only required that such evidence raise a reasonable doubt in your mind of the defendant’s guilt.” The court concluded the instruction was potentially misleading because a finding that Jackson was the perpetrator did not raise a reasonable doubt as to appellant’s guilt under an aiding and abetting theory.
We agree with the trial court that under the circumstances of this case, evidence that Jackson was the perpetrator would not raise a reasonable doubt as to appellant’s guilt under an aiding and abetting theory unless the jury also had a reasonable doubt that appellant had aided and abetted Jackson’s conduct. But even if we assume the trial court should have given a modified version of the proposed instruction, reversal is not required because it is not reasonably probable the jury would have reached a verdict more favorable to appellant if the instruction had been given. (See People v. Earp (1999) 20 Cal.4th 826, 887 [applying standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 to failure to give similar third-party culpability instruction].) The court correctly instructed the jury on the presumption of innocence, the necessity of proof beyond a reasonable doubt, and the mental state required for first degree murder as either a direct perpetrator or an aider and abettor. These instructions were sufficient to inform the jury that it must find appellant not guilty if it believed Jackson was the perpetrator and appellant was neither a co-perpetrator nor an aider and abettor.
D. Corpus Delicti on Criminal Street Gang Special Circumstance
Appellant argues that the criminal street gang special circumstance must be reversed because his out-of-court statements were the only evidence showing that he was an active gang member and that the murder was committed for a gang-related purpose. We disagree.
The corpus delicti or “body” of a crime consists of two elements: (1) the fact of the injury, loss or harm and (2) the existence of criminal agency as its cause. (People v. Hamilton (1989) 48 Cal.3d 1142, 1175 (Hamilton).) Under the so-called corpus delicti rule, it cannot be proved exclusively by the defendant’s out-of-court statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1178 (Alvarez); People v. Ray (1996) 13 Cal.4th 313, 341.) “There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss or harm by a criminal agency.” (Alvarez, supra, at p. 1171, quoting People v. Jones (1998) 17 Cal.4th 279, 303.)
A number of cases have concluded that the corpus delicti rule does not apply to non-felony murder special circumstances. (People v. Morales (1989) 48 Cal.3d 527, 559 (Morales) [lying-in-wait special circumstance]; Hamilton, supra, 48 Cal.3d at p. 1178 [financial gain special circumstance ]; People v. Howard (1988) 44 Cal.3d 375, 413-415 (Howard) [killing for hire special circumstance]; Newberry v. Superior Court (1985) 167 Cal.App.3d 238, 241 [torture murder special circumstance]; People v. McDermand (1984) 162 Cal.App.3d 770, 797-798 [lying-in-wait special circumstance]; see also People v. Shoemake (1993) 16 Cal.App.4th 243, 253-254 [corpus delicti rule applies to crimes not enhancements].) “The corpus delicti rule originated in the judicial perception of the unreliability of extrajudicial confessions, and in the fear that a defendant, perhaps coerced or mentally deranged (since he has confessed to a crime he did not commit) would be executed for a homicide which never occurred. (See Perkins, Criminal Law (3d ed. 1982) pp. 142-144.) Before reaching the issue of special circumstances, however, the jury has not only determined that a crime has occurred, but that the defendant is the perpetrator. The danger of a conviction when there was no crime cannot arise in this context. We accordingly conclude that the corpus delicti doctrine does not bar proof of the special circumstances charged in this case.” (Hamilton, supra, 48 Cal.3d at p. 1176.)
In People v. Mattson (1984) 37 Cal.3d 85, 93-94, which predated Hamilton, Howard and Morales, the Supreme Court held that the prosecution must prove the corpus delicti of the underlying felony in a felony-murder special circumstance. Mattson was abrogated by section 190.41 (enacted in 1990 as part of Proposition 115), which provides that the corpus delicti of a felony-based special circumstance “need not be proved independently of a defendant’s extrajudicial statement.”
Here, the trial court instructed the jury with a modified version of CALCRIM 359 that extended the corpus delicti rule to both the charged murder and the criminal street gang special circumstance. This imposed a greater burden on the prosecution than the law requires. Appellant cannot complain that the corpus delicti rule rendered the evidence of his gang participation insufficient, because the prosecution was not required to prove the corpus delicti of the special circumstance using evidence other than his out-of-court statements.
“The defendant may not be convicted of any crime or the special circumstance of murder to further the activities of a criminal street gang based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime and special circumstance was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime or special circumstance was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statements alone.”
Even if the corpus delicti rule applied to the special circumstance allegation, it was not violated in this case. Only “slight” independent evidence is required to satisfy the corpus delicti rule. (Alvarez, supra, 27 Cal.4th at p. 1171.) The criminal street gang special circumstance required proof that (1) the murder was carried out to further the activities of a criminal street gang; and (2) the killing occurred while appellant was an active participant in that gang. (§ 190.2, subd. (a)(22).) In addition to his out-of-court statements, appellant testified at trial that he associated with Northerners at CYA, that he had “14” tattooed on his arms, and that he became friends with Jackson due in part to their gang affiliation. (See People v. Ditson (1962) 57 Cal.2d 415, 445-446 [defendant who testifies is as competent to establish the corpus delicti of a crime as any other witness].) Jackson testified appellant asked him to go with him to Leister’s apartment to “watch his back,” and that he agreed to go because both Jackson and appellant ran with Northerners. This amounts to at least slight corroborating evidence that appellant was active in a gang and murdered Leister to further the gang’s activities.
E. Sufficiency of the Evidence to Support Special Circumstance
Appellant alternatively argues that the criminal street gang special circumstance must be reversed as unsupported by substantial evidence. He claims that (1) two of the three predicate crimes did not in fact qualify as such; (2) there was no proof he knew that his gang’s members engaged in a pattern of criminal activity; and (3) evidence of crimes occurring in Sacramento failed to established a pattern of gang activity in Lake County, where Leister was killed. We are not persuaded.
The criminal street gang special circumstance applies when “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (§190.2, subd. (a)(22).) Section 186.22, subdivision (f) defines 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 offenses including murder and attempted murder], 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 “pattern of criminal gang activity” is statutorily defined as “the commission of, attempted commission of, conspiracy to commit, or solicitation of... two or more” enumerated offenses. (§ 186.22, subd. (e).) “Active participation” in a gang requires involvement that is “more than nominal or passive.” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Matthew Buechner, a special agent for the California Department of Corrections and Rehabilitation, testified as the prosecution’s gang expert. His unit was in charge of validating gang members in prison and he was familiar with the structure of prison gangs and their street gang counterparts. The Nuestra Familia is a highly organized Northern California prison gang that developed in response to the Mexican Mafia. It controlled the Norteños, a statewide criminal street gang whose members act as soldiers for Nuestra Familia outside of prison, as well as so-called “Northerners,” associates who were sympathetic to the cause of Nuestra Familia but were not necessarily gang members. Norteños provide income to Nuestra Familia through drug sales and carried out violent acts on its behalf. There are over 10,000 Norteños, who are divided into various territorial subsets but operate under the umbrella of Nuestra Familia. Norteños are associated with the number “14” because “N” is the 14th letter of the alphabet, whereas Sureños, associated with the Mexican Mafia, are associated with the number “13.”
Prison packets were introduced through Buechner’s testimony that described three crimes qualifying as the predicate acts necessary to establish that members of the Norteños had engaged in a pattern of criminal gang activity, i.e., had committed two or more enumerated offenses. Rodolpho Torrez, a validated Norteño, was convicted of murder with a gang enhancement based on his killing of another Norteño during a party after a high school prom in Sacramento in 2000. Justin Howe, a validated member of the Oakpark Norteño gang, was convicted of attempted murder after he challenged another man at a gas station in Sacramento and stabbed him three times. Rocky Gonzales, a validated Norteño, was convicted of murder with a gang enhancement after he and some companions approached two men in a convenience store in Sacramento in 2001 and called them “scraps,” a derogatory reference to Sureños. A fistfight ensued and the two victims were shot, one of them fatally.
Buechner opined that appellant was a member of the Norteños based on a number of circumstances: appellant had tattoos that included the number “14,” he had admitted being a Norteño in 1999 and 2002 when interviewed by law enforcement, he had admitted membership during a classification intake interview in 2002, and he had acknowledged participating in the discipline of other Norteño gang members when he was incarcerated at the California Youth Authority.
Appellant argues that the 2000 Torrez murder did not qualify as a predicate offense because both the perpetrator and the victim were Norteños and it was not committed for the benefit of the Norteños. We reject this claim because there is no requirement that a predicate offense be committed for the benefit of the gang. (People v. Gardeley (1996) 14 Cal.4th 605, 620-621 (Gardeley).) Nor does the victim’s membership in the same gang render a crime ineligible for treatment as a predicate offense.
Appellant also challenges the use of the Torrez murder as a predicate offense on the ground that Torrez belonged to the Vario Centro Sacta Norteño gang while appellant did not. We disagree. Buechner testified that Torrez was a validated Norteño; it does not matter that appellant and Torrez were not members of the same subset. (See People v. Ortega (2006) 145 Cal.App.4th 1344, 1357 [prosecution adequately proved that Norteños was criminal street gang with thousands of members and 20 to 25 subsets; it did not need to prove the specific subset to which the defendant belonged].) We similarly reject appellant’s claim that the Torrez murder cannot be a predicate act when there was no proof appellant knew of that crime. A defendant need not have knowledge of the particular predicate acts to prove the existence of a criminal street gang. (See People v. Loeun (1997) 17 Cal.4th 1, 10.)
Turning to the Howe attempted murder in 2001, appellant complains that Buechner got several of the details wrong when he described the offense: he testified that a gang enhancement had been found true when it was not admitted in the plea agreement; he indicated that the term “scrappa,” used by Howe during the confrontation, was a term used by Sureños toward Norteños when in fact it is the other way around; and he described the attack as a stabbing rather than a shooting. But these circumstances do not alter the fact that the Howe crime was an attempted murder and was committed by a validated Norteño. As we have already noted, there is no requirement that the prosecution prove a predicate offense was for the benefit of the gang. (Gardeley, supra, 14 Cal.4th at p. 620.)
When describing the third predicate offense, the Gonzales murder, Buechner correctly stated that “scraps” is slang for Sureños.
In any event, “a pattern of criminal gang activity” requires proof of only “two or more” predicate offenses. (§ 186.22, subd. (e).) We have already concluded that the Torrez murder qualified as a predicate offense, and appellant has not challenged use of the Gonzales murder for that purpose. Moreover, the charged murder was itself a predicate offense. The prosecution adequately proved that the Norteños had engaged in a pattern of criminal gang activity.
Appellant argues that the prosecution failed to prove that when he killed Leister, he knew members of the Norteños engaged in criminal gang activity. Assuming without deciding that such knowledge is an element of the criminal street gang special circumstance (compare §186.22, subd. (a) [“knowledge that its members engage in or have engaged in a pattern of criminal gang activity” is an element of the substantive offense of gang participation] with § 190.2, subd. (a)(22) [no separate element of knowledge so long as crime is committed for benefit of gang]), substantial evidence was presented that appellant knew the Norteños had engaged in a pattern of criminal gang activity. He admitted to Detective Hermann during his interrogation in this case that he was a Northerner, that Northern “homies” from Pelican Bay prison had ordered Leister’s killing, and that he feared he would be killed if he did not do what they asked him to do, thus demonstrating his awareness of their criminal acts.
Finally, appellant argues that none of the predicate offenses should be considered such because they occurred in Sacramento and the current crime was committed in Lake County. The evidence showed that the Norteños is a statewide gang that operates in different areas. It does not matter that appellant committed his offense in a different area than crimes committed by his fellow gang members so long as that offense was committed for the purpose of furthering the activities of the gang.
F. Motion to Bifurcate Evidence of Predicate Offenses for Gang Special Circumstance
Appellant contends the trial court should have granted his motion to bifurcate evidence of the predicate gang offenses as unduly prejudicial. We disagree.
A court’s ruling denying bifurcation of a gang enhancement is reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1044, 1048 (Hernandez).) “[L]ess need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation” because the former is “attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Id. at p. 1048.) “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) However, a court may deny bifurcation even when some of the evidence on the gang enhancement would have been excluded in a trial on the substantive offense alone. (Id. at p. 1050.) These principles apply with equal force to a criminal street gang special circumstance.
The trial court did not abuse its discretion in allowing the prosecution to prove the elements of the special circumstance allegation during the trial on the substantive offense. Much of the gang evidence was relevant to the charged offense itself because it supplied a motive for the killing. Evidence about the predicate offenses, which were not factually related to the charged offense, was not particularly inflammatory. Buechner’s testimony about the predicate offenses was relatively brief and omitted gruesome details. Moreover, it was clear appellant was not involved in those prior crimes and there was little danger the jury would confuse the issues or believe appellant had escaped punishment for a prior criminal act. Any evidence admitted solely to prove the special circumstance “was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of appellant’s actual guilt.” (Hernandez, supra, 33 Cal.4th, at p. 1051.)
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.