Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. KA079698, Bruce F. Marrs, Judge.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Bobby Miguel Perez.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Joseph Carrion.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Joseph P. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendants Bobby Miguel Perez (Perez) and Jonathan Joseph Carrion (Carrion) appeal from judgments of conviction entered after a jury rendered verdicts of guilty on all counts. Perez and Carrion were convicted of the attempted murders (Pen. Code, §§ 187, subd. (a), 664) of Halston Kearney (Kearney) and Craig Smith (Smith), and the jury found true the allegations that Carrion personally used a deadly weapon, a knife, and inflicted great bodily injury on the victims (§§ 12022, subd. (b)(2), 12022.7, subd. (a)). Perez and Carrion were convicted of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) on Jaime Ceron (Ceron) and of battery (§ 242) on Robert Johnson (Johnson). The jury found true the allegations that each of the crimes was committed for the benefit of a criminal street gang (§186.22, subd. (b)(1)). The jury also found true the allegations that the offenses against Kearney, Smith and Ceron were hate crimes committed in concert with others (§§ 422.7, 422.75, subd. (b)) and that the crime against Johnson was committed because of Johnson’s status or perceived status as African American (§ 422.7). Each defendant admitted the truth of the allegation that he had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code, unless otherwise identified.
The trial court sentenced Perez to a total term of 44 years and four months to life in state prison, as follows: an indeterminate term of 38 years to life for the attempted murder of Kearney; a concurrent term for the attempted murder of Smith; a term of four years for the aggravated assault on Ceron; and a term of two years and four months for the battery on Johnson.
The trial court sentenced Carrion to a total term of 76 years and eight months to life in state prison, as follows: an indeterminate term of 38 years to life for the attempted murder of Kearney; a consecutive term of 32 years and four months to life for the attempted murder of Smith; a term of four years for the aggravated assault on Ceron; and a term of 16 months for the battery on Johnson.
Perez and Carrion contend there was insufficient evidence to support their attempted premeditated murder convictions. Defendants claim violations of their due process and fair trial rights due to jury tampering, admission of the gang expert’s testimony usurping the jury’s function, and admission of two items of evidence resulting in denial of the right to confront witnesses against them—Ceron’s preliminary hearing testimony and a recording of a telephone call made to the police approximately 40 minutes after the incident. Defendants also contend the evidence was insufficient to support a finding that each offense was a hate crime and that the trial court erred in admitting statements by Kearney which had been disclosed to the defense only one day prior to their admission. Perez contends there was insufficient evidence to support the jury’s finding that he personally inflicted great bodily injury on Kearney.
FACTS
A. Prosecution
The Bridges Care Home (Bridges) was a board-and-care facility for dual-diagnosis clients being treated for both mental illness and substance abuse. Bridges was located in El Monte. Facility staff warned African American clients that Hispanic gang members were assaulting some African American clients who visited the surrounding community.
On June 16, 2007, Kearney, Smith, Johnson and Ceron were clients at Bridges (collectively Kearney’s group). Kearney and Smith are African American, Johnson is Caucasian, and Ceron is Hispanic. They walked to a nearby restaurant.
While they were walking back to Bridges, a black sport utility vehicle (SUV) with chrome rims drove past them and then stopped. The Hispanic male occupants of the SUV began yelling and gesturing at Kearney’s group. The occupants threw gang signs and announced their gang’s name as “El Monte Flores.” They yelled a racial epithet toward Kearney’s group and threatened to kill them unless they left the city. The SUV drove away, made a U-turn, came back toward Kearney’s group and stopped.
Perez and Carrion were identified as two of the SUV’s occupants. Together with other occupants, Perez and Carrion jumped out of the SUV. Some of them used a racial epithet and told the Kearney group, “get out of our town, you don’t belong here. We’re going to kill you.” Carrion threw a can of beer at Ceron. Carrion yelled “El Monte Flores” and directed his companions to attack Kearney’s group. During the attack, Perez and several cohorts struck Ceron after he was knocked to the ground. Two others hit and kicked Johnson. Ceron believed Perez was in front of him during the entire attack.
In the course of the attack, Carrion stabbed Kearney twice. Smith saw Carrion stab Kearney in the back. Johnson also saw Carrion stab Kearney. Promptly thereafter, Perez stabbed Smith in the back two times.
After the stabbings, Carrion and Perez cleaned off their weapons. Together with their cohorts, Perez and Carrion returned to the SUV. While the SUV drove away, the occupants threw some additional gang signs and repeatedly said that El Monte Flores made the attack.
Reseda Parish (Parish), a mental health worker at Bridges, observed a portion of the attack from a distance. Kearney and Smith ran to Parish. They were bleeding, and each reported having been stabbed. Parish yelled for someone to call 911.
The El Monte Police Department received three calls regarding the attack. A Bridges employee reported that two Bridges clients had just been stabbed by Hispanic gangsters. An unidentified caller reported having seen a group of men get out of a black SUV, attack some other men, and then drive away. Another unidentified caller later reported having seen the attack by seven Hispanic gang members who had been riding in a black SUV, with a license plate number of 5XWC178. Department of Motor Vehicles records showed that the vehicle with that license plate was registered to Perez.
In response to the first call, El Monte Police Officer Damian Ortega arrived on the scene and interviewed Kearney, who was in pain and bleeding from his shoulder and lower back. Kearney told Officer Ortega that approximately six Hispanic men attacked Kearney’s group, calling them by a racial epithet and yelling “we’re going to kill you..., this is Flores, E.M.F., we’re going to kill you, get... out of our city.”
Detective Ralph Batres arrived on the scene and took photographs of the stab wounds suffered by Kearney and Smith. He also photographed the injuries sustained by Ceron and Johnson.
Perez and Carrion were members of the El Monte Flores gang and had previously admitted to one or more law enforcement officers that they belonged to the gang. They each had tattoos showing their gang affiliation.
Detective Batres, a gang expert, testified that El Monte Flores was a violent street gang involved in violent crimes, drug sales, and hate crimes against African Americans. Hispanic gang members in El Monte sometimes targeted African Americans because they did not want African Americans in El Monte.
Based upon a hypothetical incident, Detective Batres opined that the crimes were committed for the benefit of the El Monte Flores gang. He opined that the gang attacked the Kearney group to send a message that they will deal with African Americans and those who associate with them. Detective Batres noted that the only victims who were stabbed were African Americans.
Smith identified Perez and Carrion from photographic lineups. Ceron also identified Perez and Carrion from photographic lineups.
B. Defense
Carrion presented the testimony of two African American witnesses. Both witnesses testified that they were friends with Carrion.
DISCUSSION
A. Insufficiency of the Evidence for Premeditated Attempted Murder Convictions
Defendants contend evidence presented at trial was not sufficient to support their convictions of premeditated attempted murder and they must be reversed. In particular, Carrion contends that substantial evidence did not show that he, or anyone with him, specifically intended to kill any of the four victims or that any such intent was a result of premeditation and deliberation, as required for a conviction of premeditated attempted murder pursuant to sections 187 and 664. We disagree.
“Murder” is defined in section 187, subdivision (a), as “the unlawful killing of a human being, or a fetus, with malice aforethought.” The requisite malice, or intent, may be express or implied. (People v. Smith (2005) 37 Cal.4th 733, 739.) Attempted murder, however, requires express malice, i.e., the specific intent to kill a fellow human being and a direct but ineffectual act toward committing the killing. (Ibid.; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) It is well settled that malice, or intent to kill, may be inferred from a defendant’s actions and other circumstances surrounding the crime. (Smith, supra, at p. 741.) If a defendant purposely uses a lethal weapon with lethal force against a victim, such circumstances give rise to an inference of an intent to kill. (Id. at p. 742.)
In order to determine the sufficiency of the evidence in a criminal case, we examine the record to determine if, viewed in the light most favorable to the judgment, there is substantial evidence such that any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) The issue is not whether we are convinced beyond a reasonable doubt that the crime was committed. (People v. Sanchez (1995) 12 Cal.4th 1, 31-32.) We consider the entire record, including reasonable inferences drawn from it, and must determine that the evidence of each required element of the crime is substantial—i.e., reasonable, credible and of solid value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Assessing credibility of a witness and weighing the evidence, however, are within “the exclusive province” of the trier of fact. (Ochoa, supra, at p. 1206.) “Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder.” (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
Defendants cite a number of factors that they claim show that they did not have the specific intent to kill Kearney and Smith and that they did not take deliberate or premeditated action to kill either of them. First, the attack on the victims was very brief, upon defendants’ chance encounter with them. In addition, the victims “were not stabbed in a manner that was likely to kill them,” but rather they suffered only relatively superficial wounds and none of them involved any vital organ. The fact that they left the area rather than continue the attack showed that they intended no more than to injure Kearney and Smith. According to defendants, the evidence may show an assault with a deadly weapon, but it is insufficient to support findings of premeditated and deliberate attempted murder as to either Kearney or Smith. We disagree.
1. Specific Intent
Each of defendants’ arguments regarding the absence of evidence of specific intent fails when we examine and apply the principles previously discussed and those articulated by the court in People v. Lashley, supra, 1 Cal.App.4th 938 for determining whether the evidence was sufficient to find a defendant guilty of attempted murder. (Id. at pp. 945-946; accord, People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) According to the Lashley court, the requisite specific intent usually must be inferred from all the circumstances of the attempt, including the defendant’s actions. (Lashley, supra, at p. 946.) In Lashley, for example, the evidence of intent was sufficient even though the defendant only fired toward the victim, rather than at point blank range, and defendant fired only one shot, in that the victim may have escaped death only because of the defendant’s poor marksmanship. (Id. at p. 945.)
In the instant case, each defendant’s use of a lethal weapon with lethal force against a victim is evidence of the specific intent required for conviction of attempted murder. (People v. Smith, supra, 37 Cal.4th at p. 742.) It is reasonable to assume defendants knew that the stabbings could have resulted in the death of each victim. (Id. at pp. 741-742.) There is no merit to defendants’ argument that the wounds inflicted were superficial and did not injure any vital organs, showing that, at most, defendants intended to frighten and intimidate the victim, not to kill them. The fact that the knife wounds did not injure any vital organs is not determinative. (Smith, supra, at p. 741; People v. Lashley, supra, 1 Cal.App.4th at p. 945.) It may mean no more than that defendants were not proficient in delivering lethal knife blows. (Lashley, supra, at p. 945.) That defendants left quickly without inflicting fatal wounds also does not negate their intent to kill. (Ibid.)
Defendants’ argument that the attack was only upon a chance meeting of Kearney and Smith and was completed in seconds appears to imply that defendants had no motive specifically to kill Kearney and Smith. Although “with few exceptions, motive itself is not an element of a criminal offense,” such as attempted murder, “evidence of motive is often probative of intent to kill.” (People v. Smith, supra, 37 Cal.4th at pp. 740-741.) There is substantial evidence that defendants had an express motive—to keep African Americans out of their neighborhood by threatening to kill them or killing them if they were in defendants’ neighborhood. Their motive, combined with the fact that the only victims stabbed, Kearney and Smith, were African American, is also probative of defendants’ specific intent to kill the two victims. (Ibid.)
2. Premeditation
To support a finding that an attempted murder was premeditated and deliberate, the evidence must show that the defendant’s actions were “the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed.’” (People v. Anderson (1968) 70 Cal.2d 15, 27.) In determining the sufficiency of the evidence of premeditation and deliberation, there are three factors to consider: motive, planning activity, and the manner of killing. (Id. at pp. 26-27.) These factors are “‘descriptive, not normative’” as to premeditation and deliberation. (People v. Young (2005) 34 Cal.4th 1149, 1183.) They are not exclusive and no specific combination of them need be present to conclude there is substantial evidence to support findings of premeditation and deliberation. (People v. Stitely (2005) 35 Cal.4th 514, 543; People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
Defendants claim that the time involved was too brief for them to have time to reflect on killing the victims, weigh the consequences and, having done so, decide to kill the victims, as required to establish premeditation. Defendants point out that the attacks on Kearney and Smith were conducted, “from start to finish, in a matter of seconds, on a chance meeting” with the victims. There is no requisite minimum length of time, however, between the prior reflection on killing a person and taking action to commit the killing. (People v. Stitely, supra, 35 Cal.4th at p. 543.) “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” (People v. Thomas (1945) 25 Cal.2d 880, 900; accord, People v. Perez (1992) 2 Cal.4th 1117, 1127.)
Evidence of the defendants’ gang affiliation and the occurrence of the stabbings in the course of a gang attack, prior to which gang members had identified themselves as such and threatened to kill the victims, was sufficient to establish premeditation. As the People point out, the gang-related evidence is a strong indicator of premeditation and deliberation. A gang’s enmity toward individuals of a certain race may be sufficient to show the killing of a person of that race by gang members was deliberate and premeditated. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 849-850.) For example, in People v. Rand (1995) 37 Cal.App.4th 999, the court determined that a gang member’s killing of innocent bystanders whose clothing was the same color as a rival gang’s color was sufficient evidence of premeditation and deliberation. (Id. at pp. 1001-1002.) The Rand court explained: “A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation.” (Id. at p. 1001.)
In addition, the evidence supports a finding of motive and planning activity. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.) The fact that defendants brought weapons with them when they attacked Kearney and Smith shows planning activity. The manner of killing, defendants’ use of the weapons to deliver the potentially lethal blows to the victims, shows premeditation. (Ibid.; see also People v. Young, supra, 34 Cal.4th at p. 1182 [jury could infer premeditation and deliberation of the murder, as well as intent to kill, from the fact that the defendant “executed his planned entry into the house with a loaded gun in his hand”].) We conclude, therefore, that substantial evidence supports a finding that the attempted murders were premeditated and deliberate. (Young, supra, at p. 1182; People v. Sanchez, supra, 26 Cal.4th at p. 849; Anderson, supra, at pp. 26-27.)
In summary, there is substantial evidence upon which a rational trier of fact could find beyond a reasonable doubt that defendants had the requisite specific intent to, and acted with premeditation and deliberation to, commit attempted murder as to Kearney and Smith. (People v. Hatch, supra, 22 Cal.4th at p. 272.) Accordingly, we conclude that the evidence is sufficient to support defendants’ convictions of the premeditated attempted murders of Kearney and Smith. (People v. Smith, supra, 37 Cal.4th at pp. 741-742; People v. Sanchez, supra, 26 Cal.4th at pp. 849-851; People v. Anderson, supra, 70 Cal.2d at pp. 26-27.)
B. Right to an Impartial Jury
Defendants contend that jury tampering occurred and, therefore, they were deprived of their constitutional rights to a fair trial, including the right to have the charges against them determined by a fair and impartial jury. Specifically, they assert, five of the seated jurors admitted to inappropriate contact with someone claiming to be a defendant’s relative or to being subjected to inappropriate or intimidating looks from Carrion.
1. Factual Background
Out of the presence of the jury and defendants, the trial court informed counsel that there had been reports of jury tampering. According to the reports, a defendant’s family member had said something to the effect of “you better vote not guilty” to a juror in the elevator. Outside the courtroom, other jurors were approached by family members or overheard their conversations to the effect that the witnesses were lying, the truth was not coming out, and the defendants were not guilty. With counsel’s agreement and without defendants or public spectators being present, the trial court held individual hearings with each of the 12 jurors and one alternate juror.
Juror Nos. 4, 7, 8, 10 and 11 reported various incidents in which they felt that someone was attempting to influence them. Juror Nos. 4 and 10 reported concern about the manner in which Carrion looked at them during the trial. The three other jurors indicated that family members spoke to them and/or they overheard a family member’s comments about the trial. In response to the trial judge’s questions, each of the 12 jurors and the one alternate juror indicated that he or she could remain impartial and decide the case on the evidence. Defense counsel requested a mistrial. The trial court denied the request on the basis that it could find no grounds for a mistrial.
Juror No. 4 said that Carrion looked at her frequently, making “horrible faces.” Juror No. 7 stated that a female family member had approached her during a break and asked how she was doing, and then, in the restroom, she overheard a conversation in which a family member said, “[T]hey’re bringing up [stuff] from 2003, that was back in the day, and this is not right.” Juror No. 8 reported that she overheard several family members of defendants talking about the case and referring to it as “B.S.” Juror No. 10 said that Carrion looked at her more than he looked at other jurors. Juror No. 11 reported that in the elevator, a family member of one of the defendants told her not to find her cousin guilty.
2. Discussion
As defendants assert, a criminal defendant has a constitutional right to a fair trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722 [81 S.Ct. 1639, 6 L.Ed.2d 751].) An impartial jury is one in which every member is capable and willing to decide the case solely on the evidence presented to it. If only one juror has been improperly influenced, a conviction cannot stand. (People v. Harris (2008) 43 Cal.4th 1269, 1303.) A rebuttable presumption of prejudicial tampering arises when there is any direct or indirect private communication or contact with a juror outside the evidence presented at trial. (Remmer v. United States (1954) 347 U.S. 227, 229 [74 S.Ct. 450, 98 L.Ed. 654]; In re Hamilton (1999) 20 Cal.4th 273, 294-295.)
Whether a particular conviction must be overturned due to jury tampering is resolved by applying the objective substantial likelihood standard. (In re Hamilton, supra, 20 Cal.4th at p. 296.) “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (Ibid.) When the presumption of prejudice arises during the trial, the trial may proceed if, after holding a prompt hearing to assess the likelihood of prejudice, the court finds that each juror is capable of and willing to remain impartial and to render a verdict based solely on the evidence presented. (People v. Harris, supra, 43 Cal.4th at p. 1304.)
In the instant case, upon receiving the jury tampering reports, the trial court promptly held individual hearings with each juror and one alternate juror. In the course of the hearings, none of the jurors referred to any attempt to threaten to harm, otherwise overtly intimidate, or bribe any juror. Each of the jurors expressed to the court that he or she remained impartial as well as capable and willing to reach a decision solely on the evidence presented at trial. Thus, we conclude that substantial evidence supports the trial court’s determination that there was no substantial likelihood that one or more jurors were actually biased against either defendant, any presumption of prejudice was rebutted, and no mistrial was required. (People v. Harris, supra, 43 Cal.4th at pp. 1303-1304; In re Hamilton, supra, 20 Cal.4th at p. 296.)
Carrion argues that “[i]t is not possible to conclude in this case that jurors were not influenced by this personal fear of the defendants and their friends and relatives.” A reasonable inference, however, is that if the jurors were fearful of the defendants and their friends and relatives, the jurors would be likely to vote “not guilty.” Thus, rather than having any prejudicial effect on defendants, it would be beneficial to defendants in that they would not be convicted. Accordingly, under the circumstances in Carrion’s argument, the influence on each juror would not be prejudicial to defendants or detrimental to any of their due process rights; no mistrial would be required. (People v. Harris, supra, 43 Cal.4th at pp. 1303-1304; In re Hamilton, supra, 20 Cal.4th at p. 296.)
C. Gang Expert’s Testimony
Defendants contend that the gang expert’s testimony usurped the jury’s function, depriving defendants of their Fifth, Sixth and Fourteenth Amendment rights to trial by jury, a fair trial and due process of law. Defendants quote a portion of the transcript in which the prosecutor presented a hypothetical question to the gang expert, Detective Batres. Defendants omit, however, the prosecutor’s directive at the beginning of the question: “Detective Batres, I’d like you to assume the following facts.” Defendants begin their quotation with the next portion of the hypothetical: “Okay. Based upon the facts here as I present to you....”
We have chosen to quote only portions of the transcript of the hypothetical question and responses, given the length of the relevant portion of the transcript and its availability to all parties.
The facts the prosecutor asked the gang expert to assume paralleled the facts from the evidence presented prior to the questioning of the expert. In the hypothetical, Perez and Carrion were the names of two of the attackers. The prosecutor asked, for example: “Assume then that six to eight individuals got out of that vehicle, and that two of those individuals... were the defendant Mr. Perez and Mr. Carrion.” Also, in the hypothetical, Ceron and Johnson were the names of two victims. The names Kearney and Smith were not included, but the hypothetical included the following excerpt: “Assume... that two other individuals were stabbed.... [T]he two individuals... were African-American, [and] they were each stabbed twice in the back.”
The prosecutor ended the hypothetical question by asking the expert to assume that during the stabbing, the attackers were yelling racial epithets and threatening to kill African Americans, and they were yelling, “El Monte Flores.” He also asked the expert to “[a]ssume that during this period of time that... these eight individuals[] were attacking each of the victims, and they ultimately ran back in their car and fled. [¶] Detective Batres, based upon your training and experience and education, do you have an opinion whether or not this crime was committed to benefit the El Monte Flores gang?” Detective Batres responded “Yes” and used the same assumed facts in explaining the basis for his opinion.
Detective Batres’s responses differed from the hypothetical facts only in that he used the full names of all of the victims in response to the prosecutor’s question: “Can you please explain to the jury why [the attack was done for the benefit of EMF]?” Detective Batres testified: “They went after four people, the Hispanic guy,... Jaime Ceron, the White guy, Robert Johnson, but then they stabbed the two African-Americans, Halston Kearney and Craig Smith. Then they tried to kill them. You stab someone, you’re going to try to kill them.” Counsel for defendants did not object.
Defendants contend that the gang expert’s testimony was highly prejudicial, in that the expert testified as to ultimate facts at issue in the case “under the guise of ‘hypothetical questions,’” and thus conducted “the same analytical determination of the facts as the jury.” Defendants assert that Detective Batres rendered an opinion of the ultimate crime that was committed, in that he testified that Perez and Carrion tried to kill Kearney and Smith because “you stab someone, you’re going to try to kill them.” They claim that the use of the same names and locations in the hypothetical question rendered it more than “hypothetical.”
Defendants’ arguments fail to recognize the distinction between a hypothetical question posed to an expert and a direct question to the expert referring to the truth or reliability of the facts in the case. A hypothetical question asks the expert to assume the truth of the facts given in the question. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) When the expert gives an opinion based upon the hypothetical, therefore, the expert is not testifying to the truth of the facts. (People v. Phillips (1981) 122 Cal.App.3d 69, 82-83.)
Using the names of the people involved in the case being tried in a hypothetical question has been found not to be prejudicial, especially, where proper jury instructions about hypothetical questions are given. (People v. Phillips, supra, 122 Cal.App.3d at pp. 82-83.) Before deliberating, the jurors were given CALJIC No. 2.82 concerning hypothetical questions given to an expert witness. The instruction explained that a hypothetical question is one in which the expert “is asked to assume the truth of a set of facts, and to give an opinion based on that assumption. [¶]... It is for you to decide from all the evidence whether or not the facts assumed in a hypothetical question have been proved.” While the names and locations coincided with the facts established by prior evidence and appeared in Detective Batres’s answers, that did not alter their status as “assumed” facts or convert the detective’s answers into direct testimony about defendants or the incident at issue. (Phillips, supra, at pp. 82-83.)
Defendants compare the gang expert’s testimony in the instant case to that under consideration by the California Supreme Court in People v. Gardeley (1996) 14 Cal.4th 605. In Gardeley, the court held that the trial court properly admitted the gang expert’s opinions rendered in response to a hypothetical question based on the facts in evidence in the case being tried, in that the testimony provided a basis for determining whether the group of individuals involved were part of a “criminal street gang” as defined in section 186.22, subdivision (f). (Gardeley, supra, at pp. 619-620.) In arriving at its holding, the court acknowledged that a gang expert properly may give testimony on the culture and habits of criminal street gangs and may render an opinion in response to a hypothetical question based upon facts the expert was asked to assume. (Id. at pp. 617-618.)
Similarly to the gang expert in People v.Gardeley, supra, 14 Cal.4th 605, Detective Batres testified about gang activity and rendered an opinion in response to a hypothetical question utilizing assumed facts that were based on facts in evidence. Defendants cite specific excerpts from the detective’s testimony as examples of his improperly rendering opinions as to the ultimate issues. When placed in the context of the testimony as a whole, however, Detective Batres’s testimony was consistent with the applicable principles and holding in Gardeley. (Id. at pp. 617-620.) Nothing suggests that the jurors failed to recognize the difference between Detective Batres’s answers couched in terms of the “assumed” facts and their duty to decide the ultimate issues regarding each defendant based upon the findings they made from the “actual” facts in evidence.
As support for their claim that Detective Batres improperly testified as to the defendants’ specific intent, defendants misguidedly rely on People v. Killebrew (2002) 103 Cal.App.4th 644. The court in Killebrew held that the gang expert’s opinion 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” was improper in that, under the facts of the case, the testimony amounted to an opinion as to the defendants’ subjective knowledge and intent with respect to the guns involved. (Id. at pp. 652, fn. omitted, 658.) A key fact was that the gang expert’s testimony was the only evidence of the elements of the crime charged. (Id. at p. 658.) The Killebrew holding is to be read narrowly “as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.]” (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. omitted.)
As previously discussed, Detective Batres did not give an opinion as to the knowledge or intent of either defendant, but rather simply responded using the assumed facts in the prosecutor’s properly crafted hypothetical question. (People v. Gardeley, supra, 14 Cal.4th at p. 618; People v. Phillips, supra, 122 Cal.App.3d at pp. 82-83.) Furthermore, the detective’s testimony was not the sole evidence proffered; rather, significant factual evidence from multiple sources was admitted from which the jury could draw conclusions regarding the knowledge or intent of each defendant. For the foregoing reasons, we conclude that the trial court properly admitted the testimony of Detective Batres.
Having resolved the issue on this basis, we decline to consider defendants’ contention that, although they raised no objection to Detective Batres’s testimony at trial, the issue was not forfeited, in that the failure to object was due to ineffective assistance of counsel.
D. Admission of Preliminary Hearing Testimony and Telephone Recording
Prior to jury selection, the People filed a motion for admission of Ceron’s preliminary hearing testimony as prior testimony of an unavailable witness under Evidence Code section 240, subdivision (a)(3). They presented evidence that Ceron was unavailable due to mental illness. The People also filed a motion for admission of statements in a telephone call made by an anonymous caller to the El Monte Police on an administrative line at 5:45, about 40 minutes after the incident. After a hearing, the trial court granted the motions. Defendants contend that the trial court erred in admitting Ceron’s preliminary hearing testimony and a recording of the telephone call. We disagree.
Under this subdivision, a person is “unavailable as a witness” if the person is “[d]ead or unable... to testify at the hearing because of then existing physical or mental illness or infirmity.”
Throughout the briefs and the appellate record, the anonymous call at 5:45 is referred to as the anonymous 911 call. The police witness who took the call testified, however, that “[a]ctually it’s not a 911 call. It came in through our admin line... at 1745 hours.” We refer to it hereafter simply as “the telephone call.”
1. Ceron’s Preliminary Hearing Testimony
At trial, Ceron’s preliminary hearing testimony was read into the record. Ceron gave a detailed description of the incident substantively similar to descriptions given by witnesses at trial. However, Ceron also testified that he saw the knives as men were cleaning blood off of them shortly before leaving the area. In addition, according to Ceron, Perez was hitting him in the face during the entire attack. Ceron also confirmed his photographic identifications of defendants and identified them in the courtroom.
Ceron was asked to step down and return on a future date to continue his testimony. When Ceron resumed, he testified that he had been on medication for his mental health condition during his previous testimony, had been hospitalized and given new medications in the interim, and had been diagnosed as paranoid schizophrenic, suffering from hallucinations and delusions occasionally.
Defendants do not challenge the trial court’s ruling that Ceron was unavailable as a witness. Rather, defendants claim that the trial court erred in admitting Ceron’s preliminary hearing testimony, in that defendants were not afforded adequate opportunity for cross-examination at the hearing and the interests and motives for cross-examination at the hearing were neither similar nor the same as they were at trial.
The confrontation clause of the Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant to confront and cross-examine witnesses who testify against him. (Crawford v. Washington (2004) 541 U.S. 36, 42 [124 S.Ct. 1354, 158 L.Ed.2d 177].) It allows admission of testimonial statements of a witness unavailable at trial “only where the defendant has had a prior opportunity to cross-examine.” (Id. at p. 59, fn. omitted.) Pursuant to Evidence Code section 1291, the prior testimony of a witness is admissible only when the witness is unavailable and the defendant had the right and opportunity to cross-examine the witness in the prior proceeding with a similar interest and motive as the defendant has in the current proceeding. (People v. Carter (2005) 36 Cal.4th 1114, 1172.) This principle may apply to admission of the preliminary hearing testimony of an unavailable witness. (Id. at pp. 1172-1173; see People v. Samayoa (1997) 15 Cal.4th 795, 850.)
Evidence Code section 1291, subdivision (a), provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
It is undisputed that defendants had the opportunity to cross-examine Ceron at the preliminary hearing and, therefore, the threshhold criterion for admissibility of his prior testimony was met. (Crawford v. Washington, supra, 541 U.S. at p. 59; People v. Carter, supra, 36 Cal.4th at p. 1172.) Defendants argue, however, that their opportunity for cross-examination of Ceron was inadequate because it was too brief and defendants were facing less severe charges than those on which they were tried. Defendants point out that, at the time of the preliminary hearing, they were only charged with assault with a deadly weapon, not attempted premeditated murder, as to Kearney and Smith, there were no charges against them as to Ceron or Johnson, and there was no potential for the lengthier sentences they faced at trial. Defendants’ argument is without merit.
The cross-examination conducted at the prior hearing need not be an exact substitute for cross-examination that would be conducted at trial if the witness were present. (People v. Zapien (1993) 4 Cal.4th 929, 975.) “Frequently, a defendant’s motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only ‘similar.’ [Citation.] Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions—not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution. [Citations.].” (Ibid.; cf. People v. Carter, supra, 36 Cal.4th at pp. 1172-1173.)
Generally, at a preliminary hearing and at trial, a defendant’s underlying interest and motive for cross-examination of a witness for the prosecution are similar, that is, to discredit the witness’s account of the criminal activity. (People v. Wharton (1991) 53 Cal.3d 522, 590.) Admissibility does not hinge simply on whether the charges against the defendant were changed after the preliminary hearing. (Ibid.)
In this case, the subsequent changes in the charges did not render the cross-examination of Ceron of little or no meaningful value. The facts on which the subsequent charges were based also formed the basis for the charges against the defendants at the preliminary hearing. At defendants’ preliminary hearing, defense counsel argued the issues of, for example, sufficiency of the evidence to sustain the charges of assault with a deadly weapon, personal use of a deadly weapon, gang activity, and a racially motivated hate crime. Nothing in the preliminary hearing record suggests there was any impediment to defense counsel’s freedom to attempt to discredit the account of the facts by Ceron to the fullest extent permitted by law. (People v. Wharton, supra, 53 Cal.3d at p. 590.) We conclude that defendants’ interests and motives at the preliminary hearing were sufficiently similar to those at trial to satisfy the requirements of similar interest and motive demanded by the confrontation clause, as well as Evidence Code section 1291, subdivision (a). (People v. Carter, supra, 36 Cal.4th at pp. 1172-1173; People v. Zapien, supra, 4 Cal.4th at p. 975.)
Lastly, Ceron’s preliminary hearing testimony was not brief and, in fact, was given on two days, with a break between them during which defense counsel had an opportunity to reconsider the adequacy of their cross-examination. Whether, as defendants claim, the cross-examination of Ceron may have been lengthier at trial than at the preliminary hearing misses the mark. “‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’ [Citations.]” (United States v. Owens (1988) 484 U.S. 554, 559 [108 S.Ct. 838, 98 L.Ed.2d 951].) While Ceron’s cross-examination may not have been to the extent defendants would wish, we conclude that it comports with the confrontation clause’s guarantee of an opportunity for effective cross-examination. (Ibid.)
2. Telephone Call
A recording of the telephone call was played for the jury. The caller reported he had seen the stabbing, gave the license plate number of the black SUV he said contained the seven Hispanic men present at the incident, and described the weapon as a kitchen knife. The police operator asked about the direction in which the SUV left the scene and for a description of the SUV. The operator also asked the caller if he knew the men in the SUV and to describe the race of the SUV driver, and the clothing of the man with the knife.
Defendants contend the caller’s statements to the police operator were testimonial hearsay and thus inadmissible under Crawford v. Washington, supra, 541 U.S. 36 in violation of defendants’ right to confrontation under the Sixth Amendment. They also claim that the statements did not qualify for admission under the hearsay exception as excited utterances under Evidence Code section 1240, in that the telephone call was made at least 40 minutes after the incident. We disagree.
Under Crawford, the threshold issue is whether the telephone call statements were testimonial in nature, in that only testimonial hearsay implicates Sixth Amendment concerns. (Crawford v. Washington, supra, 541 U.S. at p. 51; People v. Gutierrez (2009) 45 Cal.4th 789, 812.) The Crawford court did not establish a definition for “testimonial” statements, but it noted that testimony “is typically ‘[a] solemn declaration... made for the purpose of establishing or proving some fact.’ [Citation.]” (Crawford, supra, at p. 51.)
Under Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224], admission of statements made in response to police interrogations implicates confrontation clause rights, and a police operator’s questions to a caller may qualify as a police interrogation. (Id. at pp. 827-828.) When a police operator’s questions to a caller are to elicit information for use by police in responding to an ongoing emergency (e.g., identification of assailants, potential danger they pose to police seeking to apprehend them), the caller’s responses are nontestimonial statements to which Sixth Amendment rights do not apply. (Id. at p. 822.) The caller’s responses are testimonial, however, if the primary purpose of the operator’s questions is “to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822, fn. omitted; see People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.) With respect to the 911 call at issue in Davis, “the nature of what was asked and answered,” when “viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn... what had happened in the past,” and, thus, the caller “was not acting as a witness,” that is, the caller “was not testifying.” (Davis, supra, at p. 827.)
Defendants argue that the facts of this case are distinguishable in that, unlike Davis, the telephone call was not made to the 911 line or by a victim under attack at the time of the call. In our view, these factual distinctions are not significant for the purposes of applying the Davis principles. The El Monte police operator’s questions to the anonymous caller sought to elicit information that would assist police officers in apprehending the men and putting the officers on alert to look out for their own safety with regard to the man with a knife. The 40-minute time lapse between the occurrence of the event and the telephone call does not preclude the call from pertaining to an ongoing emergency. The SUV and the men were still at large and possibly still in the neighborhood where the caller was, and the police were seeking to apprehend them. Accordingly, we conclude that the statements from the telephone caller were not testimonial and, therefore, their admission did not violate defendants’ rights under the confrontation clause. (Davis v. Washington, supra, 547 U.S. at pp. 822, 827-828; Crawford v. Washington, supra, 541 U.S. at p. 51.)
Defendants also argue that due to the passage of time between the event and the telephone call, the caller’s statements were not admissible under the hearsay exception for excited utterances. Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” For the same previously discussed reasons, the 40-minute time lapse did not preclude a finding that the call pertained to an ongoing emergency. (Davis v. Washington, supra, 547 U.S. at p. 827.) Defendants’ argument that the statements did not qualify as excited utterances under Evidence Code section 1240 is therefore without merit. In sum, we conclude that admission of the telephone call did not constitute a constitutional rights violation or an evidentiary error.
E. Admission of Officer’s Testimony as to Kearney’s Statements
Defendants contend that the trial court erred in admitting the testimony of Officer Ortega regarding statements made to him by Kearney when Officer Ortega arrived at the scene as the first responder. Defendants claim that the People committed a discovery violation by not disclosing the statements until one day prior to Officer Ortega’s testimony, thus depriving defendants of their Fifth, Sixth and Fourteenth Amendment rights. Officer Ortega had made no written report of Kearney’s statements. Defendants acknowledge that their trial counsel initially made a hearsay objection when they became aware Officer Ortega was being asked by the People what Kearney had told him. After conferring with the prosecutor and Officer Ortega at the trial court’s suggestion, however, counsel did not renew the objection when Officer Ortega resumed his testimony. Defendants claim that their failure to object does not constitute a forfeiture of the issue on appeal, in that the failure was due to ineffective assistance of counsel.
Officer Ortega testified that Kearney told him that as he walked back from the corner, he heard a racial epithet, followed by “get out of our city.” Kearney also related that a black SUV stopped in front of Bridges and that six Hispanic men jumped out and attacked him and his friends. Officer Ortega further testified that Kearney said he was hearing racial epithets and “We’re going to kill you.... This is Flores, E.M.F. We’re going to kill you. Get... out of our city.” According to Officer Ortega, Kearney said that then he started feeling sharp pain in his back and realized he was being stabbed. Kearney told Officer Ortega that he then saw his friend collapse onto the ground and the attackers run away to their car, yelling a racial epithet and saying “This is Flores. Get out of our city,” and drive away.
As the basis for their claim that the trial court erred in admitting Officer Ortega’s testimony about Kearney’s statements, defendants do not raise the same evidentiary objection—inadmissible hearsay—on appeal as they raised at trial. Rather, the issue they raise is the claimed violation of defendants’ rights under the Fifth, Sixth, and Fourteenth Amendments, based on the prosecution’s disclosure of the statements that was prejudicially untimely, occurring only the day before Officer Ortega was to testify. We disagree that there was any error by the trial court requiring reversal.
A criminal defendant does not have a general constitutional right to discovery. (Weatherford v. Bursey (1977) 429 U.S. 545, 559 [97 S.Ct. 837, 51 L.Ed.2d 30]; accord, People v. Gonzalez (1990) 51 Cal.3d 1179, 1258.) A prosecutor’s failure to disclose evidence violates the federal Constitution only when the undisclosed material is exculpatory evidence. (Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194, 10 L.Ed.2d 215]; Gonzalez, supra, 51 Cal.3d at pp. 1260-1261; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314.) In the instant case, the evidence—Kearney’s statements—was disclosed and was inculpatory, not exculpatory. Accordingly, we conclude that admission of Officer Ortega’s testimony did not constitute a constitutional violation.
Defendants also tangentially argue that the prosecutor’s allegedly untimely disclosure violated the California criminal discovery statutes and, accordingly, Officer Ortega’s testimony should have been excluded. Specifically, defendants assert it violated section 1054.1, subdivision (f), which requires the prosecutor to disclose all “[r]elevant written or recorded statements of witnesses or reports” of such statements, “if [the information] is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.”
We review a trial court’s ruling on discovery matters under the abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.) If a prosecutor has not complied with section 1054.1 and the defendant shows that he or she has complied with the disclosure obligations under section 1054.3, the court may make any order necessary to enforce the statutory duty of disclosure, including an order excluding the testimony of a witness. (§ 1054.5, subd. (b).) Other sanctions include, but are not limited to, delaying the testimony or continuance of the matter to minimize potential prejudice to the defendant. (Ibid.) Exclusion of testimony is permissible only if all other sanctions have been exhausted and there has been a showing of significant prejudice to the defendant and willful conduct by the prosecutor. (Id., subd. (c); People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.)
At trial, defendants did not request the court to exclude the officer’s testimony or impose any other sanction on the basis of a violation of section 1054.1. Nevertheless, the trial court delayed the proceedings briefly in order to allow defense counsel to confer with the prosecutor and learn the nature of Officer Ortega’s proposed testimony. When the trial resumed and the officer began his testimony about Kearney’s statements, defense counsel made no objection or request for exclusion on the basis of any discovery violation and made no showing of significant prejudice to defendants or willful misconduct by the prosecutor. In the absence of such a showing, the trial court did not abuse its discretion in permitting Officer Ortega’s testimony, notwithstanding that the prosecutor disclosed the nature of the testimony only one day prior to the direct examination of Officer Ortega. (§ 1054.5, subd. (c); People v. Gonzales, supra, 22 Cal.App.4th at p. 1758.)
In any event, if admission of Officer Ortega’s testimony had been error under the California criminal discovery statutes, the error would be harmless and reversal would not be required unless “‘“it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.”’ [Citations.]” (People v. Gutierrez, supra, 45 Cal.4th at p. 813; accord, People v. Watson (1956) 46 Cal.2d 818, 836.)
Contrary to defendants’ claim, Kearney’s statements are not the sole evidence of the information contained in them. In the record, there is testimony by the other three victims—Smith, Ceron and Johnson—of substantially the same information Kearney gave to Officer Ortega. Thus, it is not reasonably probable that the verdict would have been more favorable to defendants had there been no error. We conclude if any such error as claimed by defendants was made, it was harmless and, therefore, not cause for reversal of the judgments. (People v. Gutierrez, supra, 45 Cal.4th at p. 813; People v. Watson, supra, 46 Cal.2d at p. 836.)
In light of our conclusion, we need not address the forfeiture issue or the related issue of ineffective assistance of counsel which were raised by defendants.
F. Hate Crime Finding as to the Convictions for Battery on Johnson
Defendants contend that the evidence is insufficient to support the jury’s hate crime finding under section 422.7 that the battery on Johnson was committed “because of the victim’s status and perceived status as African-American.” Throughout the record, Johnson is described as Caucasian or White. The People do not dispute defendants’ claim there was no proof that Johnson was African American.
Section 422.7 provides that a hate crime which would otherwise be punishable as a misdemeanor shall be punishable as a felony “if the crime is committed against [a victim] for the purpose of intimidating or interfering with [the victim’s] free exercise or enjoyment of any right” he holds under the federal or state Constitution or other laws. (See, e.g., People v. Wallace (2003) 109 Cal.App.4th 1699, 1701, fn. omitted.) Section 422.7 elevates a misdemeanor to a felony and, accordingly, is a penalty provision, not a sentence enhancement or a substantive offense. (Wallace, supra, at pp. 1700-1702.) Section 422.55, subdivision (a), defines a “hate crime” as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: [¶] (1) Disability. [¶] (2) Gender. [¶] (3) Nationality. [¶] (4) Race or ethnicity. [¶] (5) Religion. [¶] (6) Sexual orientation. [¶] (7) Association with a person or group with one or more of these actual or perceived characteristics.”
Section 422.7 provides, in pertinent part: “Except in the case of a person punished under Section 422.6, any hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States under any of the following circumstances, which shall be charged in the accusatory pleading: [¶] (a) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury.”
In the battery provision in all the relevant documents, the actual or perceived characteristic on which the hate crime component was based was “[r]ace or ethnicity.” (§ 422.55, subd. (a)(4).) In the information, the section 422.7 allegation was that defendants committed a battery on Johnson “because of [Johnson’s] status and perceived status as African-American.” In a modified version of CALJIC No. 17.24.5, the jury was instructed that an element required to be proved was that the defendants committed the crime “because of the alleged victim’s race.” The verdict forms expressed the section 422.7 finding as that defendants committed the battery “because of Robert Johnson’s perceived status as African-American,” a finding which the jury marked as “true.”
The section 422.7 allegation, in pertinent part, provided: “It is further alleged pursuant to... Section 422.7 that the offense is a felony in that it was committed against the... victim ROBERT JOHNSON for the purpose of intimidating and interfering with the victim’s free exercise and enjoyment of a right secured by the laws and Constitution of California and the United States because of the victim’s status and perceived status as African-American.” (Italics added.)
The modified version of CALJIC No. 17.24.5 that instructed the jurors that “[i]n order to prove this allegation, each of the following elements must be proved: [¶]... [¶] 4. The perpetrator committed the crime because of the alleged victim’s race, color, ancestry or national origin, or because the perpetrator perceived that the alleged victim had one or more of those characteristics....” (Italics added.)
The verdict form given to the jury read as follows: “We, the Jury... find the Defendant... GUILTY of the crime of BATTERY.... [¶] We further find the allegation that the above offense is a Felony in that it was committed... because of Robert Johnson’s perceived status as African-American, within the meaning of PENAL CODE SECTION 422.7...” to be: [insert ‘true’ or ‘not true’].” (Italics added.)
The People acknowledge that the hate crime characteristic in section 422.55, subdivision(a)(4), “[r]ace or ethnicity,” is different from the subdivision (a)(7) characteristic, “[a]ssociation with a person or group with one or more of these actual or perceived characteristics.” The People argue, however, that the absence of the “association” language in the information, the jury instruction and the verdict forms was not prejudicial to defendants, in that the phrase used in the information provided adequate notice to defendants of the charges against them, and that, accordingly, it should not affect our analysis of the sufficiency of the evidence issue.
That is not the issue, however; the issue is whether defendants’ constitutional rights to a fair trial and due process were violated because the evidence was insufficient for the jury unanimously to find, beyond a reasonable doubt, that defendants committed battery on Johnson because of his race or his perceived race. Jurors “are bound... to receive as law what is laid down as such by the court.” (§ 1126.) In our review of the sufficiency of the evidence, therefore, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” where one of the essential elements was that Johnson was or was perceived to be African American. (Jackson v. Virginia, supra, 443 U.S. at p. 319.) Our review of the record revealed no evidence that Johnson was African American or was perceived as African American, or, alternatively, that defendants attacked Johnson because of his race or perceived race, i.e., because he was Caucasian. In the absence of such evidence, we conclude that no rational trier of fact could have found the essential element which the jury was charged to find here.
We agree that the evidence was insufficient to support the jury’s finding under section 422.7 that the battery committed on Johnson was a hate crime. Thus, as to each defendant, the section 422.7 finding on count 6 and the sentence imposed based upon the finding must be reversed.
In a footnote in the reply brief, the People asserted that defendants have forfeited the sufficiency of the evidence issue on this point, in that defendants made no objection to the section 422.7 instruction given to the jury. Defendants had no reason or obligation to object to the jury instruction, the allegation in the information, or the verdict form with respect to section 422.7 applicability to the battery on Johnson, in that it presumably would benefit defendants since they knew Johnson was not African American. After the jury found the allegation to be “true,” however, defendants had incentive to object to the findings. They did so at the sentencing hearing and requested dismissal of the allegation.
G. Sufficiency of the Evidence that Perez Personally Inflicted Great Bodily Injury on Kearney
Perez contends that the evidence was insufficient to support the jury’s finding that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) on Kearney. We agree.
In the instant case, the trial court instructed the jury with CALJIC No. 17.20, regarding the section 12022.7, subdivision (a), allegation as to Perez. The instruction incorporates the “group beating exception,” which allows a true finding on a section 12022.7 enhancement where a defendant participates in a group beating and it is not possible to determine which assailant inflicted a particular injury on the victim. (People v. Modiri (2006) 39 Cal.4th 481, 494-497.) As Perez maintains, however, Modiri confirms that there also must be proof that the defendant directly inflicted an injury on the victim, whether or not it was the particular injury in question. (Id. at pp. 485-486.) “For 20 years, courts have upheld personal-infliction findings where the defendant physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm.” (Id. at p. 486, italics added; see People v. Cole (1982) 31 Cal.3d 568, 572.)
In the instant case, the CALJIC No. 17.20 instruction stated, in pertinent part: “When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if 1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or 2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.”
Perez asserts that the evidence is insufficient to support a finding of infliction of great bodily harm on Kearney, given the absence of evidence that he personally inflicted any harm on Kearney. As Perez asserts, Smith and Johnson identified Carrion as the person who stabbed Kearney. However, no evidence showed that Perez applied any physical force to Kearney or was in the vicinity of Kearney at the time he was beaten or stabbed. Rather, the evidence connects Perez to only the attacks on Ceron and Smith.
Ceron identified Perez as the person beating him and testified that Perez stood in front of him the entire time of the attack. Also, Smith identified Perez as the person who stabbed him.
The People do not point to any direct evidence that Perez inflicted harm on Kearney. The People’s sole assertion is that the jury may have inferred that Perez participated in the attack on Kearney, based upon Ceron’s testimony that some of the people who attacked him moved on to attack Smith and Kearney and Smith’s testimony that Kearney was standing between three to five feet from Smith when he saw Kearney get stabbed. In the face of the evidence Perez did not participate in the attack on Kearney, this possible inference does not rise to the level of substantial evidence.
Based upon our review of the record, we conclude that there was no substantial evidence upon which any rational trier of fact could have made, beyond a reasonable doubt, the same finding made by the jury on the section 12022.7, subdivision (a), allegation as to Perez. (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319; People v. Hatch, supra, 22 Cal.4th at p. 272.) Thus, the jury’s finding was not supported by sufficient evidence, and the jury’s finding must be reversed. (Hatch, supra, at p. 272.)
H. Cumulative Error Claim
Defendants finally contend that cumulative error requires reversal of their convictions. As they correctly assert, reversal may be based on grounds of cumulative error, even where no single error standing alone would necessitate such a result. (People v. Ramos (1982) 30 Cal.3d 553, 581.) We have found no merit to any of defendants’ claims other than the section 422.7 findings regarding the battery committed on Johnson, and we have otherwise dealt with those findings. Accordingly, there is no cumulative error requiring reversal of defendants’ convictions.
DISPOSITION
As to each defendant, the section 422.7 finding as to the battery on Johnson (count 6) and the sentence imposed based upon the finding are reversed. The section 12022.7, subdivision (a), finding as to Perez with respect to Kearney is reversed. The clerk of the court is directed to prepare a corrected abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: WOODS, Acting P. J., ZELON, J.