Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, Terrence R. Boren, Judge. Affirmed in part and reversed in part, with directions.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Joe Martin Rodriguez.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Angel Lopez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
In a joint trial with Daniel Angel Lopez and Julian Mendez, a jury convicted Joe Martin Rodriguez of premeditated first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code unless noted) for aiding and abetting the shooting death of 14-year-old Jessica Salazar and found true the special circumstance Rodriguez killed Salazar to prevent her testimony because she witnessed the slaying of her 16-year-old friend, Michael Faria (§ 190.2, subd. (a)(10)). The jury also found to be true the allegations Rodriguez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)) and he was vicariously armed as a principal in the slaying (§ 12022, subd. (a)(1)), but found he did not personally discharge the weapon (§ 12022.53, subd. (d)). The jury could not reach a verdict concerning Rodriguez’s participation in Faria’s killing, acquitted Lopez of Faria’s murder, and could not reach a verdict concerning Lopez’s role in Salazar’s death.
A separate jury convicted Mendez, the gunman, of both murders, each with special circumstances, and sentenced him to death. His appeal is, by operation of law, both automatic and direct to the Supreme Court. (§ 1239, subd. (b).)
In a second joint trial with Lopez, the jury convicted Rodriguez of premeditated first degree murder for aiding and abetting Faria’s shooting death, and found true the gang allegation (§ 186.22, subd. (b)) and multiple firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subds. (d) & (e)(1)). Rodriguez waived a jury trial on a special circumstance for multiple murder convictions (§ 190.2, subd. (a)(3)) and, after the jury’s verdict, Rodriguez admitted the truth of the special circumstance.
The jury convicted Lopez of premeditated first degree murder (§ 187, subd. (a)) for aiding and abetting Salazar’s death, found true the special circumstance of slaying a witness to prevent her testimony (§ 190.2, subd. (a)(10)), and also found gang and firearm enhancement allegations to be true (§§ 186.22, subd. (b), 12022, subd. (a)(1), 12022.53, subds. (d) & (e)(1)).
Rodriguez and Lopez raise 12 issues on appeal, and join in each other’s arguments where relevant. They raise two constitutional issues concerning jury selection and the failure to swear an alternate juror who became a regular juror. Specifically, they assert the prosecutor discriminated against Hispanic women in exercising her peremptory strikes (see Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 278-282 (Wheeler)), and they argue the failure to swear the alternate as a regular juror violated their right to an impartial jury and rendered the second trial a nullity.
Defendants raise six issues pertinent to the evidence presented at the respective trials, including: (1) the sufficiency of the evidence to support the conclusion Rodriguez intended to kill Salazar; (2) the sufficiency of the evidence Rodriguez should have known the natural and probable consequences of assaulting Faria included his shooting death; (3) the validity of Rodriguez’s plea to the multiple murder special circumstance; (4) the sufficiency of the evidence Lopez intended to kill Salazar; (5) whether the trial court permitted overbroad gang expert testimony (see People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew)); and (6) whether sufficient evidence supported the jury’s findings on the gang allegations.
Defendants raise four issues concerning verdict and postverdict matters, including: (1) whether the trial court in the first trial properly allowed the jury to address an inconsistency in its verdict concerning the allegation Rodriguez was armed; (2) whether the trial court properly imposed a firearm enhancement under section 12022.53 on Rodriguez despite the jury’s finding he did not personally discharge the weapon; (3) whether imposition of the firearm enhancement under section 12022.53 based on a murder conviction violates double jeopardy principles; and (4) whether Rodriguez was entitled to custody credits for four years of jail time between the first and second trials.
As we explain, based on the prosecutor’s decision to identify and present only a narrow class of crimes (murder) as evidence of a pattern of criminal gang activity, the gang enhancements on Rodriguez’s conviction in the second trial for murdering Faria must be stricken, but his sentence of life in prison without the possibility of parole remains undisturbed. Thus, we direct the trial court to strike the gang allegations on count 1, and we affirm the judgment in all other respects
I
FACTUAL AND PROCEDURAL BACKGROUND
As Salazar, Faria, 13-year-old David Flores, 17-year-old Sergio Lizarraga and a few others walked along a street in Colton around 10:00 p.m. on February 4, 2000, a black SUV pulled up nearby. The driver, Samuel Redmond, left the vehicle but did not engage Lizarraga’s group. Salazar spoke briefly with two men in the SUV until Lizarraga prompted her, “Let’s go, ” but she turned back to the SUV when one of the occupants, Rodriguez, said, “I think I know you.” No one in Lizarraga’s group belonged to a gang, but Faria asked Rodriguez “where he was from.”
Although underage, the group had been drinking beer at Lizarraga’s house until his mother returned and ordered them to leave.
Rodriguez turned the challenge back on Faria and, when Faria answered that he “backed up” Westside Verdugo Rodriguez jeered, “Fuck the West” and announced his allegiance to a rival gang, Northside Colton. Aware that gang members carry guns, Lizarraga believed it was “common knowledge” “someone could get shot” as a result of the brewing confrontation. He tried to defuse matters even when Rodriguez punched him in the jaw, responding, “It’s cool, ” “chill, ” “We don’t want no trouble.”
But a red car had pulled up earlier, and several men exited it and joined Rodriguez and Mendez in chasing Lizarraga’s group down the street. The pursuers “jumped” Faria, knocked him to the ground, and began punching, kicking, and stomping on him. Faria could not defend himself. Within 35 seconds, Lizarraga heard two or three gunshots. He had tried to run to Faria’s aid, but someone grabbed his shirt and started to punch him until Salazar interjected that Lizarraga was “cool” and “not from nowhere.” Lizarraga found Faria unconscious, but breathing loudly. He had a spot of blood in the center of his shirt. He died at a hospital 14 hours later from gunshot wounds to the head and abdomen. Lizarraga could not find Salazar after the paramedics left.
Redmond testified as a prosecution witness at both trials, having entered a plea agreement to testify truthfully in exchange for two life sentences without the possibility of parole. He explained he and Lopez had stepped out of the SUV and crossed the street to speak with some friends, but when the fight erupted, someone retrieved a gun from a nearby house and, accompanied by Lopez, headed towards the fracas. But Lopez ran back towards Redmond, telling him to hurry to pick up Mendez. Redmond and Lopez jumped into the SUV, soon joined by Rodriguez and Mendez, who held a gun in his hand.
Salazar stood alone on the sidewalk, hysterical and crying. Mendez ordered Rodriguez to get her into the car. Rodriguez opened the door, Salazar climbed in, and Redmond sped away to some nearby apartments, where he told everyone to leave the vehicle, but Mendez overruled him, ordering him onto the freeway. While Salazar cried hysterically and repeatedly asked, “Why did you do that, ” Redmond drove for about 25 minutes until he stopped for gas. Lopez pumped the gas while Mendez met with Rodriguez and Redmond in the restroom, where Mendez voiced, “She’s gotta die.”
Back in the SUV, Redmond drove another 20 to 30 minutes into a hilly area, turning onto a dirt byway, Pigeon Pass Road. He pulled over when someone claimed a need to relieve himself, and all four men met at the back of the car. Again pronouncing that Salazar had to die, Mendez wanted Rodriguez to shoot her. When Rodriguez refused, Mendez told him to force Salazar out of the car. Rodriguez returned to one side of the car, and Lopez the other, and after Rodriguez dragged Salazar out of the vehicle — as she cried, resisted, and screamed, “Don’t” — he reentered the back seat. Shaking, Salazar tripped, fell to the ground, held her hands up, crying and pleading, “[N]o, ” “Don’t” and “Why are you doing this, ” but Mendez shot her. He tried to shoot her again, but the gun jammed. Mendez and his cohorts departed, but Redmond’s later arrest led to apprehension of the others.
In a police interview, Rodriguez admitted he threw the first punch at each of two males in the initial confrontation at the SUV. He chased and caught the second male, beating him down to the ground. When the victim lost consciousness, Rodriguez turned to walk back to the car. He knew Mendez had a gun. He spotted Mendez standing over the victim, and then he heard four gunshots. According to Rodriguez, he told Mendez in the restroom on the way to Pigeon Pass Road, “I will not be involved in the killing of a girl.” When Mendez ordered him to get Salazar out of the vehicle at Pigeon Pass Road, “I told her to get out. I told her just to get out. Then I pushed her out of the car.”
After the first trial, the trial court sentenced Rodriguez to life in prison without the possibility of parole (LWOP) for Salazar’s slaying, and imposed a firearm enhancement of 25 years to life. After the second trial, the court sentenced Rodriguez to another LWOP term for Faria’s murder, plus a 25-years-to-life firearm enhancement, and imposed an LWOP term and identical enhancement on Lopez for Salazar’s murder. Rodriguez and Lopez now appeal.
II
DISCUSSION
A. Contentions Concerning Jury Matters
1. No Batson/Wheeler Error during Jury Selection
Defendants contend the prosecutor tainted jury selection in the second trial by deploying her peremptory strikes in a discriminatory manner. “‘Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.’” (People v. Cleveland (2004) 32 Cal.4th 704, 732; see Batson, supra, 476 U.S. at p. 88; Wheeler, supra, 22 Cal.3d at pp. 278-282.) Subject to rebuttal, the prosecutor is presumed to have acted properly, and the burden rests on the challenger to demonstrate impermissible discrimination. (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) To do so, a defendant must first “make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] [Fn. omitted.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial [or gender] exclusion’ by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168.)
Lopez and Rodriguez asserted below that the prosecutor improperly exercised peremptory strikes against three female Hispanic jurors “because of their race and possibly even because of their gender.” The trial court first addressed the issue informally with the parties in an unreported hallway conference and then, having reviewed its notes, the trial court concluded defendants failed to make the requisite prima facie showing. The court noted the 12 jurors accepted by both the prosecution and defense included seven women and, “by my discernment, ” two or three of the 12 jurors were Hispanic, including a female Hispanic juror.
Despite the prima facie ruling in her favor, the prosecutor, “in an abundance of caution, ” explained her reasons for striking the three jurors, including that one spoke emotionally of her experience in a gang beginning at age 14. Of the other two, the prosecutor explained one seemed “easily led” in an unfavorable manner and the other seemed similarly susceptible, since she appeared “a bit naïve and inexperienced.” Specifically, the prosecutor explained: “As to Miss Ramos, [she] indicated that even though her boyfriend was soon to become a Department of Corrections officer, she seemed to be pretty easily led into and easily agreed with the notion that there are law enforcement officers who are untruthful, despite the relationship that she had with her boyfriend, which made me uncomfortable in terms of keeping her as a juror. [¶] And then finally with Miss Camacho[:] Miss Camacho indicated she lived in Moreno Valley yet had not really seen graffiti, was not aware of gangs in her area or gangs out and about in the city. Having worked that area myself as the lead prosecutor for the Moreno Valley in the gang unit, I find that to be very difficult to believe, which leads me to believe that she may be a bit naïve and inexperienced with gangs, coupled with the fact that she had never sat on a jury before.”
Defense counsel disputed the jurors’ voir dire answers supported the prosecutor’s belief Miss Ramos was easily led or that Miss Camacho was naïve. Counsel explained Miss Ramos “simply agreed with the notion that all witnesses, ” including those from law enforcement, “should be judged the same, ” and complained the prosecutor called Miss Camacho “a liar” about whether “she has in fact seen gang graffiti and was naïve in not recognizing what it was.” The trial court concluded, “Well, I still believe there was not a prima facie showing in any event. So the motion is denied.”
On appeal, defendants do not suggest a discriminatory animus motivated the prosecutor to strike the prospective juror who had been in a gang. Accordingly, they assert they established the requisite prima facie inference of discrimination based on the following: (1) the prosecutor exercised two of her seven strikes with bias against Hispanic females, a high percentage resulting in the exclusion of most of the members of this class; (2) the two excluded jurors shared nothing in common except their race and gender, supporting the hypothesis these factors motivated the prosecutor to dismiss them; and (3) the prosecutor asked no questions of Miss Ramos, supporting the inference she decided to excuse Miss Ramos based on unlawful bias. (See Wheeler, supra, 22 Cal.3d at pp. 280-281 [desultory questions and disproportionate use of peremptories against prospective jurors similar only in their race or group membership are among factors for court to evaluate].)
When a trial court denies a Batson/Wheeler motion based on the challenger’s failure to make a prima facie case of discrimination, we review the voir dire record to determine if substantial evidence supports the trial court’s ruling. (People v. Yeoman (2003) 31 Cal.4th 93, 116.) If the record suggests reasonable grounds for the prosecutor’s decision to strike the prospective jurors, we must affirm. (Ibid.)
We conclude the trial court did not err in determining defendants failed to establish the requisite prima facie inference of bias to support their Batson/Wheeler claim. Two problems prevent an inference of discrimination from defendants’ statistical reliance on the number of strikes — two of seven total — allegedly aimed with bias at Hispanic women. First, “‘“the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’” (Bonilla, supra, 41 Cal.4th at p. 343, original italics.) A pattern of exclusion may suggest an inference of discrimination (ibid.), but “[s]uch a pattern will be difficult to discern when the number of challenges is extremely small” (id. at p. 343, fn. 12). In Bonilla, there were only two African-Americans among 78 total prospective jurors, but striking both did not trigger a prima facie case because “‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible....’” (Id. at p. 343.) So it is here.
Second, in asserting a prima facie case, the defendant must “make as complete a record as feasible” (People v. Boyette (2002) 29 Cal.4th 381, 422 (Boyette)), but here defendants provide no information about the size or composition of the prospective jury pool. If the venire included numerous Hispanic females, then striking one or two, only to have them likely be replaced by members of the same class, diminished the likelihood a prohibited reason motivated the prosecutor’s strikes. On the present record, for instance, the Hispanic female who served as a juror may have entered the jury box when the prosecutor exercised one of her peremptory strikes. In any event, the prosecutor did not excuse this juror with her remaining strikes, further undermining any inference of bias against Hispanic females. In sum, the trial court reasonably could conclude defendants’ attempt to marshal percentages drawn from a small sample size of two strikes did not establish a pattern warranting an inference of discriminatory intent, and the absence of any data about the venire on appeal undercuts defendants’ claim of bias.
The other reasons defendants assert to support their prima facie case similarly do not bear up under scrutiny. Contrary to defendants’ argument, the record at the time of their motion did not indicate the only characteristics Miss Ramos and Miss Camacho shared were their race and gender. As the prosecutor later explained, their voir dire answers suggested they were “easily led, ” as the prosecutor described Miss Ramos, and she described Miss Camacho as similarly “a bit naïve and inexperienced.” Although phrased slightly differently, these observations could inform a prosecutor’s hunch or concern that neither juror had gained resolve and judgment from their limited life experiences, at least in a manner she considered favorable. (See People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [“Limited life experience is a race-neutral explanation”]; see also People v. Lenix (2008) 44 Cal.4th 602, 613 [prospective jurors may be excused based on “hunches, and even for arbitrary or idiosyncratic reasons”].)
Defense counsel may have had a different view of the pair’s desirability as jurors, but the issue was bias and “‘[w]e give great deference to the trial court in distinguishing bona fide reasons from sham excuses.’” (Boyette, supra, 29 Cal.4th at p. 422.) And since defense counsel had elicited during voir dire that, in the prosecutor’s view, Miss Ramos was “easily led” concerning untruthful law enforcement officers, there was no need for the prosecutor to pose additional questions to her. Thus, none of the reasons defendants insist demonstrate a prima facie showing of bias persuade us to conclude the trial court erred in determining otherwise. Contrary to defendants’ argument, the fact that the prosecutor gave her reasons “did not moot the question of whether defendant had established a prima facie showing.” (Ibid.) Put another way, because defendants did not and do not advance beyond the first step of the Batson/Wheeler inquiry, we need not evaluate the prosecutor’s stated rationales for pretext or otherwise engage in a comparative analysis of the jurors the prosecutor did not strike. (Bonilla, supra, 41 Cal.4th at p. 350.)
2. Harmless Error to Fail to Swear One Juror
Defendants assert their convictions in the second trial must be reversed because the record does not show the court clerk swore in the alternate juror who replaced a juror excused for hardship reasons. We conclude any error in failing to obtain an express oath from the alternate was harmless in the circumstances of this case.
Section 1093 governs the order of procedure in a criminal case and provides that the jury must be “impaneled and sworn” before opening statements and, in a felony case, before the accusatory pleading is read to the jury. Section 1093 does not specify a particular form of oath but, as occurred here, the examples given in Code of Civil Procedure section 232 are commonly used. (All statutory references in this discussion subpart are to the Code of Civil Procedure, unless noted.)
Subdivision (a) of section 232 requires jurors under penalty of perjury to provide truthful answers during voir dire of their qualifications. This serves to impress the entire jury pool with the solemnity of the proceedings and the importance of impartiality. The subdivision provides: “(a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.’”
Because defendants do not suggest otherwise, we presume the alternate juror received and assented to the oath administered before voir dire. (See ante, fn. 3; Evid. Code, § 664.) The record reflects that after jury selection the court clerk administered to the initial 12 jurors, in the presence of the alternate jurors, the oath provided in section 232, subdivision (b). (See ante, fn. 3.) The clerk then turned to the alternate jurors and administered the following oath: “Do you and each of you understand and agree that you will well and truly serve as alternate jurors in the matter now pending before this court, and if called upon, will take the oath to serve as a regular juror, so help you God? [¶] If you do so, say, ‘I do.’” The alternate jurors, including the alternate whom defendants now challenge (Alternate No. 1), responded affirmatively.
Early in the prosecution’s case, during Redmond’s testimony, the trial court excused a juror for hardship with all parties’ consent. The court did so during a break in the proceedings when the rest of the jury waited outside the courtroom. The record does not specify that when the jury returned to the courtroom the clerk administered an oath to Alternate No. 1 to serve as a regular juror. Conceivably, the clerk may have administered the oath outside defendants’ presence. (See State v. Hyder (Wash.Ct.App. 2011) 244 P.3d 454, 464-465; Evid. Code, § 664.)
But assuming that did not happen, defendants forfeited their appellate challenge by failing to object below, when the oversight easily could have been cured. (See generally People v. Saunders (1993) 5 Cal.4th 580, 589-590 [forfeiture principles]; see also People v. Hill (1992) 3 Cal.4th 959, 985-986 [failure to object to juror’s incompetency forfeits the issue, there based on juror vicinage], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13); 47 Am.Jur.2d (2010) Jury, § 195, p. __ [forfeiture applies where no objection made].)
Nevertheless, we reach the merits of defendants’ claim because they assert their trial attorneys’ failure to object constituted ineffective assistance of counsel (IAC). The familiar standard governing review of IAC claims is whether a more favorable result was reasonably probable absent counsel’s alleged misstep. (Strickland v. Washington (1984) 466 U.S. 668, 698.) We need not determine whether counsel’s performance was deficient if the defendant suffered no prejudice under the reasonable probability standard. (Ibid.; accord, People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Defendants insist a more exacting standard of review applies because of the constitutional dimension to their argument. Specifically, they assert trial counsels’ failure to object to substitution with an unsworn juror prejudiced their right to an impartial jury and therefore constituted structural error. We are not persuaded a different standard than IAC review applies. The constitutional aspect to defendants’ claim does not change the fact that “‘a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to... timely assert[]’” it. (United States v. Olano (1993) 507 U.S. 725, 731.) In any event, the reasons to require a juror’s oath do not suggest omitting the oath for a single alternate rises to the level of structural error here, as we explain.
In People v. Pelton (1931) 116 Cal.App.Supp. 789, 791 (Pelton), the court concluded the failure to swear the entire jury to hear a petty theft complaint rendered the jury’s verdict a nullity. Since Pelton was decided in 1931, no California case has addressed the issue, highlighting the rarity of the oversight. More recent out-of-state cases provide a three-fold rationale for automatic reversal of an unsworn jury’s verdict. First, swearing the jury marks the moment at which jeopardy attaches, ensuring the defendant may not be tried again in violation of double jeopardy principles. (Spencer v. State (Ga. 2007) 640 S.E.2d 267, 534.) But an interest in safeguarding against double jeopardy does not arise here where only an alternate was left unsworn. Jeopardy attaches at the outset of trial when, as here, the regular jurors are impaneled and sworn. (Crist v. Brest (1978) 437 U.S. 28, 35.) Discharging and replacing one of those jurors for good cause does not dilute the defendant’s protection; jeopardy still applies. (In re Mendes (1979) 23 Cal.3d 847, 853.) Additionally, forfeiture rules also apply to the prosecution, so the prosecutor’s failure to object to an unsworn juror would preclude the state from later raising the issue to thwart double jeopardy protection. (Ex Parte Benford (Ala. 2006) 935 So.2d 421, 425-427.)
Other reasons for a juror’s oath, and for automatic reversal where no juror has been sworn, are to impress upon the jury the solemnity of their task and to ensure an impartial tribunal. (Harris v. State (Md. 2008) 956 A.2d 204, __; 406 Md. 115, 126.) Of course, in light of the First Amendment, swearing an oath is not an inexorable requirement for jury service. (See, e.g., Society of Separationists, Inc. v. Herman (5th Cir. 1991) 939 F.2d 1207, 1219.) For instance, a serious public commitment to answer voir dire questions truthfully suffices to substitute for the usual oath obtained from prospective jurors. (Ibid.) There is no reason to conclude the same would not be true for the oath administered to jurors impaneled to try the case. Thus, it is incorrect to say an unsworn jury requires reversal, since a panel composed of individuals conscientiously objecting to oath-swearing is constitutionally sound.
In any event, we are here concerned only with one unsworn juror. The record reflects neither an individual unimpressed with the solemnity of his task as a juror, nor have defendants met their burden (In re Lucas (2004) 33 Cal.4th 682, 696-697 (Lucas) to show he was biased or partial. As to solemnity, Alternate No. 1 swore not one, but two oaths. The first oath marked the solemn nature of the proceedings with an acknowledgment the juror gave his voir dire answers under penalty of perjury. (Ante, fn. 3.) The juror swore a second solemn oath to take the regular jurors’ oath if called upon to replace one of them. (See ibid.) The repeated oathtaking here by this juror and the other jurors differentiates this case from those in which none of the jurors were sworn.
Here, all the jurors were sworn and, notably, the alternate, having witnessed the regular jurors taking their oath, knew its terms and solemnly subscribed to take the same oath on the same terms. Those terms, to render a verdict based only on the evidence presented and according to the trial court’s instructions, were repeated in the court’s instructions, which we presume the jury followed with due regard. (People v. Clair (1992) 2 Cal.4th 629, 663.) Additionally, the juror’s prior service on a jury — in a rape case in which the jury reached a verdict — presumably impressed the juror with the solemnity of the jury’s task. The weighty charges here also necessarily imbued the proceedings with appropriate gravity. In light of all these factors, there is simply no basis to conclude Alternate No. 1 lacked an appreciation for the solemnity of his duties. Consequently, his participation does not undermine our confidence in the verdict, or suggest a reasonable probability of a more favorable outcome for defendants had counsel objected, or in any manner hint that defendants did not receive a fair trial or due process.
The presence of a biased juror constitutes structural error, which requires a new trial regardless of prejudice. (Estrada v. Scribner (9th Cir. 2008) 512 F.3d 1227, 1240.) Bias, however, is not presumed, but rather must be shown to a “‘demonstrable reality’” in the record. (People v. Martinez (2010) 47 Cal.4th 911, 943.) The appellant bears the burden of demonstrating juror partiality. (Lucas, supra, 33 Cal.4th at pp. 696-697.) Here, defendants make no effort to show Alternate No. 1 was biased or partial in the least, except to point to the clerk’s failure to administer to him the regular jurors’ oath. But the same factors that demonstrate the juror held a due regard for the solemnity of the proceedings, as discussed, lead us to conclude defendants fail to meet their burden to show, as a demonstrable reality, that he harbored bias. Moreover, defendants posed no questions during voir dire to Alternate No. 1 as a prospective juror. The trial court conducted its own voir dire examination of this juror, confirming he heard the questions asked of the other prospective jurors and that none required disclosures on his part. He volunteered he golfed with a friend who was a retired sheriff and another friend who was a personal injury attorney, but confirmed those friendships did not make him “feel aligned with any party here.” The juror, assuming he might later speak with these friends about his jury service, nevertheless stated he would have no difficulty acquitting defendants “based on the evidence and the law.”
In sum, we conclude none of the reasons that might support reversal in a case where no juror is sworn are present here. Nor is it probable defendants would have received a more favorable result if counsel had objected to the single juror left unsworn in the circumstances here, or to support the conclusion structural error analysis should apply. Defendants’ argument for reversal therefore fails.
B. Contentions Concerning the Sufficiency of the Evidence to Support the Verdicts and to Support Rodriguez’s Multiple Murder Special Circumstance Plea
1. Sufficient Evidence of Rodriguez’s Intent to Kill Salazar
Rodriguez challenges the sufficiency of the evidence to support the jury’s conclusion he intended to kill Salazar. An aider and abettor must act with “the intent or purpose of committing, encouraging, or facilitating the commission of the offense” (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman)), and the special circumstance for killing a witness to a crime (§ 190.2, subd. (a)(10)) specifically requires that the aider and abettor must intend to kill the victim (§ 190.2, subd. (c), italics added [providing for death penalty or LWOP for “[e]very person, not the actual killer, who, with the intent to kill, aids [or] abets” a special circumstance murder]).
Rodriguez highlights that he twice rejected Mendez’s attempts to designate him as the shooter, stating at the gas station and at Pigeon Pass Road that he would not kill a girl. He argues that even though he forced Salazar out of the vehicle at Mendez’s request after Mendez reiterated Salazar’s “gotta die, ” his actions demonstrated an “abandoned and malignant heart or antisocial indifference” or “reckless indifference to whether she was killed, ” but not that he “wanted to take Salazar’s life.” The jury, however, reasonably could conclude Rodriguez agreed Salazar had to die because she witnessed Faria’s murder and therefore, while he did not want to pull the trigger himself, he shared Mendez’s intent to kill when he dragged Salazar out of the vehicle to face her executioner. Because an aider and abettor’s intent may be proven circumstantially from his “volitional acts with knowledge of their probable consequences” (Beeman, supra, 35 Cal.3d at p. 560), there is no basis for us to second-guess the jury’s conclusion concerning Rodriguez’s intent (People v. Earp (1999) 20 Cal.4th 826, 887-888 [fact that circumstantial evidence may be reconciled with a contrary finding “does not render the evidence insubstantial”]).
Resisting this conclusion and reasserting his claim he harbored at most an indifference to Salazar’s fate and not an intent to kill her, Rodriguez insists the jury’s finding he committed a special circumstance murder is constitutionally infirm. Rodriguez asserts the Eighth Amendment requires an aider and abettor must harbor an actual intent to kill the victim before a special circumstance provision may be found true. There are three problems with Rodriguez’s argument. First, as noted, the evidence supports the conclusion Rodriguez intended to kill Salazar. Thus, the predicate is missing for his constitutional claim that anything less than an intent to kill bars a special circumstance finding. Second, the trial court instructed the jury that intent to kill was a prerequisite for the special circumstance finding, even if a defendant was not the actual killer. (Judicial Council of Cal. Crim. Jury Instns. CALCRIM Nos. 702, 725.) Third, a reckless indifference to life may warrant imposition of the death penalty in certain circumstances (Tison v. Arizona (1987) 481 U.S. 137, 146-158; Zant v. Stephens (1983) 462 U.S. 862, 877), undercutting Rodriguez’s assertion an intent to kill is a constitutional necessity (cf. People v. Letner (2010) 50 Cal.4th 99, 163, fn. 20, original italics [Proposition 115 modified aider-and-abettor liability under the felony-murder special circumstance to authorize death or LWOP if the person was a “‘major participant... and either intended to kill or acted with reckless indifference to human life’”]). In any event, as discussed, the evidence supports the jury’s conclusion here that Rodriguez intended to kill Salazar. His challenge therefore fails.
2. Natural and Probable Consequences that Shooting Would Arise from Fight
In a supplemental opening brief, Rodriguez challenges the sufficiency of the evidence to support his conviction for Faria’s murder on a natural and probable consequences theory. Rodriguez asks us to conclude as a matter of law that Faria’s shooting was not a natural or probable consequence of the beating Rodriguez initiated when Faria asked him, “Where you from?” But it is the jury, not the reviewing court that must be convinced of the defendant’s guilt beyond a reasonable doubt; consequently, a plausible, contrary reading of the evidence does not suffice to reverse the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Rather, our appellate role requires that we review the record in the light most favorable to the trier of fact’s conclusions, we must draw every reasonable inference in favor of the jury’s verdict (ibid.), and we must affirm the judgment unless under “no hypothesis whatever is there sufficient substantial evidence to support it” (People v. Redmond (1969) 71 Cal.2d 745, 755). Thus, an appellant “bears an enormous burden” when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).)
People v. Medina (2009) 46 Cal.4th 913 (Medina) is instructive. There, the Supreme Court affirmed aider-and-abettor first degree murder verdicts on a natural and probable consequences theory where a gang member issued a verbal challenge (“where you from?”) to rival gang members, which escalated into a fistfight that spurred the codefendants’ fellow gang member to shoot an opposing gang member to death. (Id. at p. 922.) The high court explained: “‘[A]lthough variations in phrasing are found in decisions addressing the doctrine — “probable and natural, ” “natural and reasonable, ” and “reasonably foreseeable” — the ultimate factual question is one of foreseeability.’ [Citation.] Thus, ‘“[a] natural and probable consequence is a foreseeable consequence”....’ [Citation.] But ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough....” [Citation.]’” (Id. at p. 920.) The issue of foreseeability is a factual question for the jury to decide according to the circumstances of the case. (Ibid.)
Attempting to distinguish Medina, Rodriguez argues no reasonable factfinder could conclude Faria’s shooting death was a foreseeable occurrence. He notes that in Medina, the victim’s initial success in defending himself served to humiliate his attackers, rendering further escalation to gun violence foreseeable, a factor absent here where Rodriguez told police Faria had been beaten unconscious before Mendez approached and shot him to death.
But the jury was not required to view the shooting as an independent act disconnected from the beating; it followed close on the heels of Rodriguez’s and other Northside Colton members’ assault on Faria. Rodriguez had only stepped a few feet away when Mendez fired his gun. Moreover, the gang expert explained that incommensurably violent responses are a typical gang tactic to spread fear. Thus, even an innocuous act like looking at a gang member the wrong way can result in a stabbing or shooting, which the jury could infer Rodriguez knew as an active member of his gang. According to the expert, intruding into a rival gang’s territory is far from innocuous, requiring violent reprisal. Violence instills fear and, according to the expert, fear is synonymous with respect in the criminal street gang culture; a gang gains its power through fear, and individual gang members gain respect by committing violent acts.
Rodriguez also distinguishes Medina based on an assertedly “crucial difference”: there, a shout by one of the aggressors to “‘get the heat’” alerted the others that gun violence was foreseeable. (Medina, supra, 46 Cal.4th at p. 924.) But as the expert explained, guns are generally available to a gang in its territory; a fact Lopez demonstrated by quickly retrieving a gun from a nearby home.
The expert also explained why a seemingly innocuous question like “Where are you from” is viewed as a precursor to violence in the gang subculture. According to the expert, failure to react violently to perceived challenges would diminish respect for the gang and its members. Rodriguez demonstrated he subscribed to gang mores by not backing down when Faria posed this question. He answered Faria’s ill-advised challenge by asserting a counter-challenge to Faria to state where he “was from, ” by announcing his gang affiliation, and by punching, chasing, and beating Faria to unconsciousness when Faria responded that he “backed up, ” or supported, a rival gang. Even Lizarraga, a nongangmember, admitted it was “common knowledge” that “someone could get shot” if a fight ensues after posing the “where are you from” challenge to a gang member. Rodriguez labels Lizarraga’s testimony merely guesswork or speculation, but it was supported by expert testimony, which Rodriguez did not challenge as lacking foundation. In sum, the jury reasonably could conclude Rodriguez, an active gang member challenged in front of fellow gang members, knew of the life-and-death stakes in throwing the first punch at an apparent rival gang member intruding into their claimed territory. Substantial evidence supports the jury’s conclusion Faria’s shooting death was foreseeable.
3. Rodriguez’s Plea to Special Circumstance Multiple Murder Was Valid
Rodriguez challenges the validity of the plea he entered after the second trial to a special circumstance for murdering more than one victim. (§ 190.2, subd. (a)(3).) The record demonstrates Rodriguez’s challenge lacks merit, as we explain.
After the jury in Rodriguez’s first trial convicted him of murdering Salazar, but could not reach a verdict concerning his role in Faria’s killing, Rodriguez waived a jury trial on the multiple-murder special circumstance in the second trial (§ 190.2, subd. (a)(3)), but not on whether he aided and abetted Faria’s murder. After the second jury convicted Rodriguez of aiding and abetting Faria’s murder on a natural and probable consequences theory, as discussed, counsel alerted the trial court Rodriguez agreed to admit the multiple-murder special circumstance.
Counsel stated: “I’m just working off the Third Amended Information. Mr. Rodriguez is going to admit the truth of that allegation at this time. He has previously been advised. He understands he has a right to a court trial on that matter, and he’s willing to admit the truth of that allegation.” The trial court advised Rodriguez of his rights to trial, confrontation, silence, and to subpoena witnesses, which Rodriguez expressly waived. Rodriguez admitted he had been convicted of Salazar’s murder in the earlier trial. After confirming with Rodriguez and his counsel that they had enough time to discuss Rodriguez’s intention to admit the truth of the special circumstance allegation, the trial court asked Rodriguez, “And as to that allegation, then, you admit the truth of that? Is that correct, Mr. Rodriguez?” When Rodriguez answered, “Yes, ” the trial court, while addressing “a couple of other issues, ” informed Rodriguez that admitting the special circumstance carried “a possible sentence of life without possibility of parole....”
Rodriguez divides his attack on his plea into three prongs. First, he argues his plea was invalid because he did not receive the LWOP advisement before pleading guilty. (See People v. Walker (1991) 54 Cal.3d 1013, 1020 [“the defendant must be advised of the direct consequences of the plea”].) Defendant forfeited this challenge by failing to object once the trial court stated the consequence. (Id. at p. 1023.) Had the LWOP possibility “‘come as a genuine surprise’” to defendant after consultation with his attorney in deciding whether to plead guilty to the special circumstance, it would have been “‘a simple matter to bring the issue to the attention of the trial court’” to withdraw his plea. (Ibid.) Moreover, any sequencing error in the trial court’s advisement does not require reversal because the record shows no reasonable probability (ibid.) Rodriguez would not have entered the plea if the trial court had first advised him of the LWOP consequence. (Ibid.; accord, People v. Gurule (2002) 28 Cal.4th 557, 634-635, fn. 23 [“reversal is not justified unless the pleading defendant demonstrates prejudice”].) Here, Rodriguez had consulted with counsel before making his plea and, given two jury verdicts of murder and having stipulated to a court trial on the special circumstance, it is unlikely he would have perceived anything to gain in having the trial court that would sentence him review the evidence again to determine the truth of the multiple murder allegation. His challenge therefore fails for both lack of prejudice and forfeiture.
Second, Rodriguez contends his plea is invalid because he did not admit as a requisite element of the special circumstance allegation that he intended to kill either Salazar or Faria. (§ 190.2, subd. (c) [special circumstance findings require that the aider and abettor must have intended the victim’s death].) Focusing on a snippet of the plea colloquy in which he admitted he was convicted of Salazar’s murder in the earlier proceeding, Rodriguez emphasizes admission to a single conviction does not constitute admission to the special circumstance formultiple murder (§ 190.2, subd. (a)(3)), which requires an intent to kill (§ 190.2, subd. (c)). Rodriguez overlooks, however, that he faced two separate circumstance allegations: one in the first trial for murdering Salazar to prevent her testimony as a crime witness, and another in the second trial for multiple murder. The jury in the first trial determined he harbored the requisite intent to kill Salazar, obviating his claim that his later bare admission to a conviction for killing her did not include an admission of the requisite intent to kill. Specifically, his earlier conviction for murdering Salazar included the jury’s special circumstance finding that he aided and abetted Mendez in killing Salazar because she was a witness to a crime, demonstrating the requisite intent to take her life.
In any event, Rodriguez slices the plea proceeding too thin: it began with counsel’s statement that Rodriguez would plead guilty to the allegation in the third amended information and concluded with Rodriguez admitting not just to his conviction for Salazar’s murder, but specifically to the truth of the “allegation” to which he was pleading, i.e., the multiple-murder special circumstance. An unconditional plea admits the truth of all elements of the offense (People v. French (2008) 43 Cal.4th 36, 50), and therefore Rodriguez’s contention he only admitted a single conviction and not all the elements of the multiple-murder special circumstance, including intent, is without merit.
In the third prong of his tripartite attack on his admission to the multiple-murder special circumstance, Rodriguez asserts the admission was invalid because the trial court violated due process by not expressly placing on the record a factual basis for the plea. Our Supreme Court has explained, however, that there is “no federal constitutional requirement that a court, whether federal or state, inquire into the factual basis for a plea.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1183, original italics; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) Moreover, the purposes of recording a factual basis for a defendant’s plea include ensuring an innocent defendant has not been pressured to make a false plea and to ensure the defendant understands the nature of the charges and the plea. (Hoffard, at pp. 1183-1184.) Here, where the trial court presided over both of Rodriguez’s trials, and Rodriguez was present at each trial, the record contained more than an adequate factual basis for his plea to the multiple-murder special circumstance.
4. Sufficient Evidence that Lopez Aided and Abetted Salazar’s Murder
Like Rodriguez, Lopez challenges the sufficiency of the evidence to support the jury’s conclusion he aided and abetted Salazar’s killing. He emphasizes he was absent from the gas station restroom conference where Mendez first expressly stated Salazar had to die, nor did he declare his agreement when Mendez reiterated this at Pigeon Pass Road, and he insists he did nothing to aid the actual slaying. The jury, however, reasonably could infer from Lopez’s actions the requisite intent to kill as an aider and abettor. (§ 190.2, subd. (c); Beeman, supra, 35 Cal.3d at p. 561). In a pretrial police interview, Redmond told investigators that following the conference at the rear bumper where Mendez restated Salazar must die, Lopez returned to the passenger compartment and “push[ed] her to throw her out” of the SUV.
Lopez argues this account is not credible, focusing instead on Redmond’s trial testimony, made under a plea agreement conditioned on testifying truthfully, in which he only recalled Lopez reentering the back seat after the bumper conference, not that he shoved Salazar out. But it was for the jury to determine Redmond’s credibility in each of his accounts, not a reviewing court. (Sanchez, supra, 113 Cal.App.4th at p. 330.) There is no physical impossibility or manifest falsity in Redmond’s initial police statement that would enable an appellate court to substitute its judgment for the jury’s as a matter of law. (People v. Barnes (1986) 42 Cal.3d 284, 306.) Additionally, the jury could have decided to credit only Redmond’s trial testimony and not his earlier account that Lopez pushed Salazar out of the vehicle, yet nevertheless reasonably infer that, in returning to the back seat on the side opposite Rodriguez, Lopez demonstrated he shared the conclusion Salazar had to die by blocking her escape. Lopez’s evidentiary challenge is without merit.
5. Gang Expert Opinion Testimony
Relying on Killebrew, supra, 103 Cal.App.4th 644, defendants contend the prosecution’s gang expert in the second trial gave an improper opinion purporting to identify their state of mind as they rode, without discussion, from Faria’s shooting to the gas station and from the gas station to Pigeon Pass Road. Specifically, defendants assert the expert opined they each subjectively knew Salazar would be killed. A suspect’s “knowledge and intent on the night in question [are] issues properly reserved to the trier of fact.” (Killebrew, at p. 658 [gang expert testimony inadmissible to establish “that a specific individual had specific knowledge or possessed a specific intent”].) But the expert here gave his testimony in response to hypotheticals posed by the prosecutor and, as our Supreme Court has observed, “[T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 (Gonzalez).)
In People v. Vang (2010) 185 Cal.App.4th 309, 110 Cal.Rptr.3d 282, 291, the court held a “prosecutor may not circumvent [the proscription in Killebrew against opining about a specific individual’s intent] by asking the expert a hypothetical question that thinly disguises the defendants’ identity.” Our request that the parties address Vang in supplemental briefing became moot when, a week later, the Supreme Court granted review in Vang. (See id., review granted (Sept. 15, 2010, S184212).)
Additionally, defendants forfeited their Killebrew contention by failing to raise it below. (People v. Valdez (1997) 58 Cal.App.4th 494, 505.) They objected on grounds the expert’s testimony was speculative and lacked foundation, but they did not assert the testimony was improper based on Killebrew. (Evid. Code, § 353 [specific objection required]; see People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4.)
In any event, defendant’s challenge fails on the merits. The expert phrased his responses to the prosecutor’s hypotheticals in terms of typical gangmember motivations and expectations, which is permissible. (Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3; People v. Ward (2005) 36 Cal.4th 186, 210.) The expert identified, as part of the expected mentality in “sign[ing] on to [a] gang, your expectation is you back up your fellow members.” Phrased differently, the expert explained the price of admission to a gang includes a “continuous intent of a gang member to back up their fellow gang members.” When the prosecutor posed a hypothetical asking whether a lack of discussion among gang members as they drove from a murder scene to a gas station with another victim in tow “suggest[ed] that everyone in the [hypothetical] car knew what was going to happen to that girl, ” the expert responded by highlighting the gang “expectation that you’re going to be protecting your fellow gang members. Every one of the gang members is going to be expected to protect each other, and the way to do that is to get rid of the only witness that can testify against them.”
In other words, the expert suggested one could infer knowledge of a victim’s fate from the gang code of mutual protection, particularly given the expert’s earlier testimony describing a gang culture where gang members resort quickly to violence, including stabbing or shooting others perceived to pose a threat. According to the expert, the fact that no gang member expressed “dissension” when one member expressly stated the victim had to die was “significant” because it demonstrated the code of gang loyalty. The expert testified the lack of discussion about the victim’s fate after leaving the gas station was similarly a “significant” detail in the prosecutor’s hypothetical “because there was no need to discuss it. They knew already.” Where, as in these examples, “the ‘culture, habits, and psychology of gangs’” are “‘“sufficiently beyond common experience [such] that the opinion of an expert would assist the trier of fact, ”’” the expert’s testimony is properly admissible. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512; see also Killebrew, supra, 103 Cal.App.4th at p. 657 [“whether and how a crime was committed to benefit or promote a gang” is proper subject for gang expert].)
Moreover, any conceivable error in admitting the expert’s testimony concerning the victim’s fate was harmless. Simply put, it was obvious defendants knew Salazar had to die because Mendez twice expressly stated so. (See People v. Hernandez (1977) 70 Cal.App.3d 271, 281 [“error in admitting expert testimony where none is needed may be entirely harmless where the expert really adds nothing to what must be apparent to the jury’s common sense”].) Although Lopez was absent on the first occasion Mendez verbalized Salazar’s death sentence at the gas station, he was present the second time when all four men convened outside the car at Pigeon Pass Road. Apart from admission of the expert’s challenged testimony, defendants’ actions at the execution scene demonstrated they knew of and shared a mutual intent to permanently eliminate Salazar as a witness. We conclude it is not reasonably probable the jury would have reached a different conclusion if the expert’s challenged testimony had been excluded or stricken. Any error in admitting the testimony was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818.)
6. Sufficiency of the Evidence Concerning Defendants’ Gang’s Primary Activities and Pattern of Activities
Defendants challenge the sufficiency of the evidence to support the jury’s conclusion in the second trial that Northside Colton qualified as a criminal street gang, as defined in section 186.22, subdivision (f). “To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).) The criminal street gang finding is a predicate to the gang enhancements the jury found to be true. (§§ 186.22, subd. (b); 12022.53, subds. (d) & (e).)
Defendants do not contest the ongoing association element of the criminal street gang requirement. But they contend no substantial evidence supports the gang expert’s opinion Northside Colton’s primary activities included several of the crimes listed in section 186.22, subdivision (e), or that the gang’s members engaged in a pattern of criminal gang activity. Specifically, they complain Detective Jack Underhill’s testimony, which furnished the evidentiary basis supporting the primary activity and pattern of criminal conduct elements, was too vague to support either determination. We address these challenges in turn.
(a) Primary Activities of Defendants’ Gang
Underhill testified Northside Colton’s primary activities included car theft, shootings, stabbings, and witness intimidation. Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), defendants characterize Underhill’s testimony as vague and inadequate, requiring more specific proof. But in Alexander L., the gang expert simply stated in a conclusory fashion that he “‘kn[e]w’” the defendant’s gang had been involved in certain criminal activities. (Id. at p. 611.) The expert did not describe his background, training, experience, or contacts with gangmembers or the defendant’s gang.
In contrast, in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), the Supreme Court found the gang expert’s testimony sufficient to establish a gang’s primary activities included the sale of narcotics and witness intimidation, where the expert based his opinion “on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Id. at p. 620.) And in Gonzalez, supra, 38 Cal.4th 932, the Supreme Court rejected a challenge to the indirect nature of the expert’s knowledge, based on unreliable hearsay rather than the expert’s personal investigation of specific crimes. The high court explained, “A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable.” (Id. at p. 949.)
Defendants challenge fails at the outset because they forfeited the issue on review by failing to object to Underhill’s testimony concerning Northside Colton’s primary activities. (People v. Seaton (2001) 26 Cal.4th 598, 642-643; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 393, p. 484 [“Material and relevant evidence that is technically incompetent and inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, will be considered in support of the judgment”]; id. at p. 485 [citing cases applying rule to hearsay evidence]; 7 Cal. Law Revision Com. Rep. (1965) p. 143 [statutory definition of “evidence” makes it clear that “when inadmissible hearsay or opinion testimony is admitted without objection... it constitutes evidence that may be considered by the trier of fact”].)
On the merits, defendants’ challenge fails because Underhill provided ample foundation concerning the basis for his opinion. His testimony did not resemble the expert’s conclusory assertions in Alexander L. Rather, Underhill explained he investigated all gang crimes in Colton, including hundreds committed by Northside Colton members, and his familiarity with the gang dated back to its first documented contact with police in 1989. He had investigated thousands of gang cases and interviewed approximately 3, 000 gang members, including speaking personally with at least 75 Northside Colton members, which provided an informed perspective to assess the gang’s primary activities. He also reviewed patrol reports by other officers in addition to his own field work. This foundation surpassed what the Supreme Court has explained is adequate. (Gardeley, supra, 14 Cal.4th at p. 620.) Accordingly, there is no merit to defendants’ vagueness attack on the basis for Underhill’s primary activities testimony.
(b) Pattern of Criminal Gang Activities
Defendants also challenge the sufficiency of the evidence at the second trial to establish Northside Colton engaged in the requisite pattern of criminal gang activity. The district attorney relied only on murder as the sole pattern offense — not car theft, shootings, stabbings, witness intimidation, or any combination of these or other crimes committed by Northside Colton members. Thus, the second trial required the jury to determine whether Rodriguez murdered Faria and, if so, whether the prosecution established the requisite pattern of criminal street gang offenses necessary to impose criminal street gang enhancements. (§§ 186.22, subd. (b)(1); 12022.53, subds. (d) & (e).)
Consistent with the prosecutor’s choice, the trial court instructed the jury: “A pattern of criminal gang activity, as used here, means: [¶] “1. The commission of, or attempted commission of, or conspiracy to commit, or conviction of any combination of two or more of the following crimes, or two or more occurrences of one or more of the following crimes: murder [I] in violation of Penal Code § 187 [¶]...” (Italics added.)
By statute, “‘a pattern of criminal gang activity’” means the gang’s members have “engaged in ‘two or more’ acts of specified criminal conduct committed either on separate occasions or by two or more persons.” (Gardeley, supra, 14 Cal.4th at p. 623; see also People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) A charged offense can serve as a pattern offense. (Gardeley, at p. 625.) Two offenses committed by separate participants on the same occasion satisfy the pattern requirement. (People v. Loeun (1997) 17 Cal.4th 1, 5 [in a group beating, one attacker committed assault with a baseball bat, and another committed a separate assault with a tire iron].) In other words, contemporaneous offenses qualify to meet the pattern requirement. (Id. at pp. 5, 10-11, 14.) Offenses occurring after the charged offense, however, do not establish the requisite pattern existed at the time of the charged offense. (Duran, supra, 97 Cal.App.4th 1448, 1454 & 1457; People v. Godinez (1993) 17 Cal.App.4th 1363, 1370, disapproved on another ground in People v. Russo (2001) 25 Cal.4th 1124, 1134.) And convictions of a perpetrator and an aider and abettor result in a single predicate offense, not the two required to demonstrate a pattern. (People v. Zermeno (1999) 21 Cal.4th 927, 931-932.)
Given the prosecutor relied on murder alone, and consented to an instruction telling the jury only two or more murders — not any other crimes — sufficed to establish the requisite pattern, the evidence is insufficient to support the jury’s finding a pattern of murder existed at the time Rodriguez aided and abetted Faria’s killing. Thus, the gang enhancements must be stricken on this conviction. But neither the multiple murder special circumstance attached to this count, nor the special circumstance for killing Salazar to prevent her testimony as a witness, depended on establishing a pattern of criminal gang activity. Accordingly, we do not disturb Rodriguez’s sentence of life in prison without parole on either count. The pattern requirement does not aid Lopez at all because Faria’s murder preceded his aiding and abetting Salazar’s killing, and therefore the two murders established the necessary pattern.
C. Contentions Concerning Postverdict Matters
1. The Trial Court Properly Alerted the Jury to Its Inconsistent Verdict
Rodriguez contends the trial court violated his right to a jury trial when it coerced the jury into changing its verdict in the first trial. Specifically, Rodriguez asserts the trial court interfered with his jury trial right by directing the jury to reconsider its verdict when it returned a “not true” finding on a firearm enhancement allegation, finding Rodriguez “was not a principal armed with a firearm, within the meaning of Penal Code [s]ection 12022, [s]ubdivision (a), [s]ubsection (1).” The trial court pointed out to the jury the inconsistency of finding Rodriguez guilty of first degree murder for aiding and abetting Salazar’s killing, which made him a principal in the offense, while also finding he was an unarmed principal. The court explained the enhancement applies to all principals if any one of them was armed. The trial court did not err, as we explain.
The issue arose after the court clerk read the jury’s “not true” finding on the enhancement. The clerk asked the jury, “[I]s this your finding, ” the jury collectively answered, “Yes, ” and then the following colloquy occurred:
“THE COURT: All right. [Addressing the foreperson, Juror No. 8], everything makes sense on the verdict as to Mr. Rodriguez except the principal armed allegation. Clearly you[’re] finding that he was not the one... who fired the firearm, which is how the case was presented to you, which is that Mr. Mendez did it. If you found Mr. Rodriguez was an aider and abettor, he would be a principal because a principal is a person who actually does the offense or who aids and abets. [¶] So typically, the way the law is is that if any one of the principals has a firearm, they would all be guilty under arming, which is why we distinguish the use from arming. [¶] So let’s say we had the situation again with an armed robbery where one person goes and has the gun, that person would be the one that used the gun, but the other two persons would be principals armed because it involves vicarious arming. [¶] So that verdict is a little inconsistent. I was wondering if you recognize the inconsistency, or was there a misunderstanding where further deliberations might be appropriate? [¶] “JUROR No. 8: I’d have to recognize the inconsistency, that we did not understand the meaning of that particular charge. [¶] THE COURT: Okay. [¶] JUROR No. 8: That is an aider and abettor, even though he did not carry the firearm, he would be guilty of — [¶] THE COURT: That’s why it’s called ‘armed’ as opposed to ‘used.’ Would the jury like to go back and address that issue? [¶] JUROR No. 8: I think it probably would. I certainly misread it. [¶] THE COURT: We will go ahead and wait for you on that issue. I don’t think it will be very long, so I’ll keep everybody.”
Rodriguez objected to this procedure, but the trial court implicitly overruled the objection by accepting the jury’s conclusions when it returned to the court room. At the jury’s request, the trial court struck the “not true” finding on the armed enhancement as “incorrect, ” the clerk of the court read the jury’s corrected verdict form, finding true the allegation Rodriguez was armed as a principal in Salazar’s murder, and the jury affirmed this was its finding.
Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127 (Bigelow) is instructive. The court explained “a trial court may not coerce a jury by rejecting its verdict and requesting it to continue deliberating.” (Id. at p. 1134.) Put another way, “the court may not order reconsideration” of a “verdict of acquittal, ” but “rather must order that judgment be entered on the verdict.” (Ibid.; see §§ 1161 [“when there is a verdict of acquittal, the Court cannot require the jury to reconsider it”]; 1165 [mandatory duty to enter judgment on a verdict of acquittal].) Nevertheless, it remains the trial court’s “duty to test the verdict” if it is ambiguous. (Bigelow, at p. 1135.) But the trial court must proceed carefully: “Once it is clear that the jury’s intent is to acquit, the form of the verdict is not important; it is the intention to acquit that triggers the mandatory duty to receive and record the verdict and acquit the prisoner.” (Id. at p. 1134.) “The touchstone of a jury verdict of acquittal is the jury’s manifestation of a definite and final intent to acquit of the offense.” (Ibid.)
Faced with an inconsistent verdict, the trial court in Bigelow simply “gave the jury different verdict forms and sent them back to deliberate, over defense objection.” (Bigelow, supra, 208 Cal.App.3d at p. 1132.) Instead, Bigelow explained the trial court properly “could have either 1) granted the motion to record the verdict of acquittal, 2) polled the jury to determine if there were 12 votes for acquittal, or 3) informed the jury that the acquittal was not consistent with findings of special circumstances and asked it to clarify its verdict to show its true intent.” (Id. at p. 1136.) But the trial court in Bigelow erred because it did nothing more than require deliberation for a day and a half longer. The reviewing court lamented, “During all that time the jury was not told why its verdict was not acceptable.” (Ibid.)
Indeed, the trial court in Bigelow failed to directly address a jury note on the last day that asked, “‘Can we go with our original not guilty verdict?’” The trial court responded, “‘All the verdict forms to be used in this case are in your possession. You use what you have....’” (Bigelow, supra, 208 Cal.App.3d at p. 1132.) The appellate court observed: “This jury had already shown its confusion by filling out special circumstance verdicts after stating an acquittal. Given that confusion, it would be entirely unrealistic to expect that same jury, with no explanation, to deduce the reason why the trial court would not accept its verdict.” (Id. at p. 1137.) “Further, ” by parrying the jury’s interest in entering its original verdict, the trial court, in effect, “twice rejected the verdict. This conduct greatly increased the probability of the jury’s concluding that a verdict of acquittal was unacceptable and that it was under a mandate to convict.” (Ibid.)
There was no similar danger here. Instead, the trial court properly adhered to the authorized procedure of informing the jury of the inconsistency in its verdict and asking it to clarify the verdict “to show its true intent.” (Bigelow, supra, 208 Cal.App.3d at p. 1136.)
People v. Guerra (2009) 176 Cal.App.4th 933 (Guerra), on which Rodriguez relies, does not require a different result. There, the jury convicted the defendant of seven counts of sex offenses against his daughter and an eighth count involving another child, but found untrue an enhancement allegation that the defendant had committed offenses against more than one victim. (Id. at p. 936.) Advised of the inconsistency, the foreperson volunteered the jury had concluded the allegation only applied to offenses involving more than one victim at a time (id. at p. 938), which the reviewing court viewed as an intrusion into the “‘black box’” of jury decision-making (id. at p. 942).
In any event, it appears the trial court in Guerra went beyond advising the jury of an inconsistency, proceeding further to review in the jury’s presence the terms of the instructions and verdict forms concerning the enhancement before announcing “‘[t]he instructions and the verdict form would indicate to the court... that the answer to those allegation questions should be true....’” (Guerra, supra, 176 Cal.App.4th at p. 939-940, italics added; see also id. at p. 935 [noting the trial court suggested the outcome the jury “‘should’” find for the allegations].) Although the trial court in Guerra conditioned the answer it gave the jury on the predicate that there be “more than one victim that the defendant has been convicted of sexually assaulting” (id. at p. 939), the appellate court found the trial court erred by directing the jury to reach a particular, court-endorsed result.
There was no similar error here, however. The trial court explained the inconsistency without directing a particular outcome and left the jury to reach its own result. When the foreperson stated he “certainly misread” the allegation and that the jury “probably would” like to revisit the issue, the trial court answered, “We will go ahead and wait for you on that issue.” The trial court properly tested the jury’s ambiguous initial verdict, and did not coerce the jury to reach a particular verdict. There was no error.
2. Section 12022.53 Enhancement Valid Despite Finding of No Personal Discharge
Rodriguez argues the trial court erred after the first trial by imposing a firearm enhancement on his LWOP sentence for Salazar’s murder. Rodriguez asserts the enhanced term for a principal’s gun use in a gang crime (§ 12022.53, subds. (d) & (e)(1)) cannot stand because the jury acquitted him of the enhancement. The jury’s findings demonstrate otherwise.
Section 12022.53, subdivision (d), provides for a 25-years-to-life enhancement when a person is convicted of murder and in the commission of that offense “personally and intentionally discharges a firearm, ” “proximately caus[ing] great bodily injury... or death... to any person other than an accomplice....” Subdivision (e)(1) expands liability for this penalty to principals, not just the individual personally discharging the firearm, when the murder is committed for the benefit of a criminal street gang under section 186.22, subdivision (b).
Specifically, the relevant portions of section 12022.53 provide: “(d) Notwithstanding any other provision of law, any person who, in the commission of a [murder] personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in [s]ection 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. [¶] (e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of [s]ection 186.22.”
Relying on one among many of the verdict forms returned by the jury, Rodriguez insists the jury found the enhancement provided in section 12022.53 did not apply to him. Not so. The form Rodriguez focuses on states: “We, the jury in the above-entitled action, find the defendant, JOE MARTIN RODRIGUEZ, in the commission and attempted commission of the offense charged under count 2 of the second amended information [i.e., Salazar’s murder], did not personally and intentionally discharge a firearm and proximately caused great bodily injury or death to another person, not an accomplice, within the meaning of Penal Code sections 12022.53, subdivision (d), 12022.53, subdivision (e), and 186.22, subdivision (b), subsection (1).” (Italics added.)
The trial court concluded that while the jury in this particular form decided Rodriguez did not personally discharge a firearm killing Salazar, other verdict forms reflected true findings on the constituent elements of section 12022.53’s enhancement for a principal in a gang crime. Specifically, the jury convicted Rodriguez of murdering Salazar, found he committed the crime for the benefit of a criminal street gang and, as discussed above, concluded he was armed as a principal in Salazar’s killing. Rodriguez complains the trial court should not have “reconstitute[d] new verdicts from pieces of other verdicts.” But given the gang-benefit from murder-by-firearm enhancement in section 12022.53 is itself a patchwork of derivative findings, we discern no error.
3. Jeopardy Does Not Bar Sentencing on an Enhancement and Conviction
Both defendants contend the 25-years-to-life penalty enhancement under section 12022.53, subdivisions (d) & (e)(1), for a principal’s vicarious use of a gun resulting in death cannot apply to a murder conviction. They argue double jeopardy protects not just against multiple trials, but also “‘against multiple punishments for the same offense.’” (Schiro v. Farley (1994) 510 U.S. 222, 229.) In other words, defendants assert the gun use enhancement results in double punishment when the enhancement is applied to a murder conviction, which obviously also requires the victim’s death.
As defendants acknowledge, however, our Supreme Court has rejected this challenge. Enhancement allegations are not elements of an offense for purposes of triggering the rule against multiple convictions based on necessarily included offenses. (People v. Sloan (2007) 42 Cal.4th 110, 117-122.) Moreover, a true finding on an allegation neither results in an additional conviction nor constitutes another offense, and therefore does not implicate the bar to multiple convictions consisting of lesser included offenses. (People v. Izaguirre (2007) 42 Cal.4th 126, 134.) Specifically, firearm enhancements do not violate the bar against multiple punishment for double jeopardy purposes (ibid.), nor under section 654 (People v. Palacios (2007) 41 Cal.4th 720, 725). (See Sloan, at p. 121 [cumulative punishment under overlapping statutes permissible under federal and state law].) Defendants acknowledge these high court decisions are controlling (Auto Equity, supra, 57 Cal.2d at p. 455), but raise the issue now to preserve federal review. We do not consider the matter further.
4. No Custody Credit for Confinement Between the Two Trials
Rodriguez argues the trial court erred by failing to award him presentence custody credit (§ 2900.5) for his jail confinement between the two trials, while he had been sentenced for Salazar’s murder, but awaited retrial for Faria’s slaying. The trial court did not err. “Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (In re Rojas (1979) 23 Cal.3d 152, 156 (Rojas).) In other words, credit does not accrue unless the conduct underlying a conviction forms the sole basis for custody, which was not the case here. (See, e.g., People v. Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner) [defendant’s burden to show “he could have been free during... his presentence custody but for the same conduct that led to the instant conviction and sentence”].) Here, the trial court sentenced Rodriguez to life in prison without parole after the first trial for the special circumstance murder of Salazar, plus a 25-years-to-life enhancement; thus, he would not have been free but for the remaining allegations concerning Faria’s murder.
Rodriguez asserts equal protection requires he receive presentence custody credit based on a hypothetical in which a person is not sentenced on a conviction in a first trial until after he is convicted of another offense in a second trial. In Rodriguez’s hypothetical, the person receives presentence custody credit towards his sentence on the later conviction, and thus suffers lighter punishment than Rodriguez for identical conduct. The purpose of section 2900.5 presentence custody credit is to correct for unequal treatment arising from bail. (Bruner, supra, 9 Cal.4th at pp. 1183-1184.) Thus, a defendant unable to afford bail receives custody for presentence confinement because he or she should not serve “a longer overall period of confinement” than a wealthier defendant. (Id. at p. 1184.) But bail is not at issue here. A defendant facing a charge of special circumstance murder is not entitled to bail. (Maniscalco v. Superior Court (1993) 19 Cal.App.4th 60, 63.)
In any event, the hypothetical Rodriguez poses does not present any danger of an equal protection violation. His hypothetical person who avoids sentencing until after the second trial does not serve any less time by virtue of receiving presentence custody credit against both sentences imposed after the second trial. To the contrary, subdivision (b) of section 2900.5 expressly prohibits double-counting custody towards consecutive sentences imposed for multiple offenses. (§ 2900.5, subd. (b) [“Credit shall be given only once”]; Rojas, supra, 23 Cal.3d at p. 156.) Thus, time served by Rodriguez’s hypothetical defendant for a sentence on one conviction could not be credited towards a consecutive sentence on the later conviction, as here. Accordingly, Rodriguez’s challenge is without merit.
III
DISPOSITION
The trial court is directed to strike the gang enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)) on count 1 for Rodriguez’s conviction for the murder of Michael Faria, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.
Subdivision (b) of section 232 provides: “As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement ‘I do’: [¶] ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.’”
Rodriguez does not assert the prosecution failed to plead he violated section 12022.53, or that the gang enhancement (§ 186.22, subd. (b)) was neither pleaded nor proven. Rather, he asserts the jury acquitted him of violating section 12022.53.