Filed 12/9/13 P. v. Rodriguez CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT



THE PEOPLE,
                                                                                           F064483

         Plaintiff and Respondent,                                            (Super. Ct. No. 10CM0005 )
                v.

SALVADOR PARA RODRIGUEZ,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.
         A. M. Weisman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford
E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Defendant Salvador Para Rodriquez was convicted of first degree murder (Pen.
Code,1 § 187, subd. (a); count 1) and carrying a sharp instrument while confined in a
penal institution (§ 4502, subd. (a); count 2). As to count 1, the jury found true special
circumstance allegations of murder perpetrated by means of discharging a firearm from a
motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)), and murder
perpetrated by an active participant in a criminal street gang and carried out to further the
activities of the gang (id., subd. (a)(22)). The jury also found true gang enhancement
(§ 186.22, subd. (b)(1)) and firearm discharge enhancement (§ 12022.53, subd. (e)(1))
allegations; however, the jury found not true the allegation that defendant personally and
intentionally used or discharged a firearm causing death (§ 12022.53, subd. (d)).
Defendant was sentenced to life without the possibility of parole (LWOP), plus 25 years
to life for the firearm discharge enhancement, and 10 years for the gang enhancement on
count 1, and a consecutive three-year term on count 2. Defendant was also ordered to
pay restitution and various fees, fines, and assessments.
       On appeal, defendant contends the trial court prejudicially erred in admitting
multiple hearsay, his trial counsel rendered ineffective assistance of counsel by failing to
object to several evidentiary errors, and prosecutorial misconduct during closing
argument denied him a fair trial. Defendant also raises a number of claims of sentencing
error. We will order the 10-year gang enhancement on count 1 to be stricken but
otherwise affirm.




1      All further statutory references are to the Penal Code unless otherwise stated.


                                                2
                                           FACTS
       The shooting
       Around 7:30 p.m. on December 30, 2009, someone inside a blue van shot and
killed Jose Manuel Aguirre (the victim) as he was standing in front of his residence at the
El Dorado Trailer Park located on Highway 41 in Kings County. At the time, the victim
lived with Jennifer Barajas (the victim’s fiancée), who was also the sister of prosecution
witness Robert Lavery.2
       According to Lavery and the victim’s friend, Marissa Spain, there was a long
history of animosity between the victim, a Norteño gang member, and defendant, a
Sureño gang member. Spain and Lavery were both eyewitnesses to the shooting.
According to Spain’s testimony, she was standing outside with the victim and several
others when she saw an old blue van begin to drive by. Referring to defendant by his
gang moniker, the victim asked, “Is that Casper?” Then, as the van passed in front of
them, the victim made a statement to the effect the occupants of the van were just some
fieldworkers returning home from work.
       Spain saw the van drive towards the back of the trailer park and then return a few
minutes later, driving more slowly than before. An arm with a gun extended from the
front passenger window followed by a burst of orange. The victim exclaimed, “[F]uck,
fuck, … these fucking scraps[3] bucked at me.” The victim ran a short distance and fell
face forward on the ground.


2       Lavery, who was in custody at the time of defendant’s trial, had an extensive criminal
history and identified himself as an “American Front Member Skin Head.” Lavery testified he
was familiar with the Norteños and Sureños gangs because he was a tattoo artist, and he was
exposed to the gangs in prison. In prison, Caucasian gang members such as himself teamed up
with the Sureños for protection, while African-American gang members teamed up with the rival
Noreteños.
3      Scrap is a derogatory term for a Sureño or southern gang member.


                                              3
       Spain, who was unable to identify any of the van’s occupants, confirmed
defendant was not the front seat passenger.
       However, Lavery did see defendant inside the van at the time of the shooting.
According to Lavery, he was driving back to the trailer park from a gas station, when he
spotted the blue van outside the trailer park, stopped at a stop sign. Lavery was about 10
feet from the van, when he looked inside and saw defendant. Defendant was “sitting in
the back seat but he had his head closer to the middle talking to the driver” and “was
pointing towards something in the trailer park.” Because of the history of conflict
between defendant and the victim, Lavery “thought it was going to be another fight.”
       Lavery followed the blue van into the trailer park and then pulled over to the side
for a moment and tried to get the victim’s attention. As the van drove past the victim,
Lavery started backing up into his mother’s driveway and got out of his car. Lavery saw
the van drive to the end of the trailer park, turn around, and begin to return, driving
slowly, with its lights off.
       Lavery got back into his car and started to pull forward. He saw a person in the
front passenger area of the blue van; the person was rolling a ski mask down over his
face. Defendant was still sitting in the same place where Lavery had seen him earlier.
Although everyone in the van was now wearing ski masks, Lavery recognized defendant
from his clothes, which Lavery had observed when he first saw defendant outside the
trailer park.
       Lavery saw a flash from a gun going off and then the van leave the trailer park.
Lavery watched the victim die, telling his fiancée that he loved her. Lavery described the
victim as a “good kid” and regarded him as a “little brother.” According to Lavery, the
victim had wanted to get out of the northern gang lifestyle and Lavery had tried to help
him.



                                              4
       Around 8:00 p.m. on the night of the shooting, defendant called his best friend,
Santiago Hernandez. Hernandez was a member of the East Side Dukes (or ESD), a
Sureño gang. Defendant told Hernandez he needed a ride to Hanford. When Hernandez
asked why, defendant said somebody had died. Hernandez told defendant he needed at
least an hour before he could pick him up because he was with his little daughter.
Defendant called back several times with the last call coming in around 9:45 p.m.
Defendant sounded nervous and impatient. Hernandez did not pick up defendant that
night because he was afraid that defendant had killed somebody.
       Defendant’s grandmother, Maria Parra, testified that when defendant was arrested,
she did not think he was expecting it. Parra learned from defendant that somebody died
at the trailer park when he called her from jail the day after his arrest.
       Defendant’s police interview
       Detective Charles Buhl interviewed defendant following his arrest. When asked
where he had been the day of the shooting, defendant initially claimed he stayed around
his house and never left town. As the interview progressed, defendant started changing
his story. Defendant told Detective Buhl he had forgotten he had gone to Hanford and
forgot to mention he went by Elosayo Rodriguez’s house. Other names came up as the
interview progressed and defendant would claim he forgot to mention them.
       Detective Buhl asked defendant about his phone calls to Hernandez. Defendant
mentioned Hernandez was his best friend and said he called Hernandez because he
needed a ride to Hanford to go pick up a bed.
        When asked if he had any beefs going on, defendant said he had some issues with
the victim. Defendant basically said the reason why they were having a problem was
because the victim was a northerner and defendant was a southerner. However,
defendant denied being “active” during the interview.



                                               5
       A video of the interview was introduced into evidence but, because of its length,
only a small portion was played to the jury. In that portion, defendant claimed that, when
he got back to his grandmother’s house around 10:00 p.m. on the night of the shooting,
she told him somebody had died in the trailer park and that she had seen it on the news.
       Jailhouse informants
       Defendant made incriminating statements to two jail inmates with whom he was
housed at different times following the shooting.
       Ali Lopez, a Sureño gang member, met defendant in March 2010, when they were
housed in the same pod at the Kings County jail. When Lopez initiated a conversation
with defendant, defendant told Lopez his name and said he was in jail for murder. Lopez
testified that defendant said “he was there when a Northerner had gotten killed and he
was in an older van.” Defendant also said “that dude got lit up” and had a “smirk on his
face” when he said it.
       When asked if he recalled what color defendant said the van was, Lopez testified,
“I want to say he said white or some—white if I am not mistaken, white.” As to the
location of the shooting, Lopez testified, “He said it happened at trailers, I think it was El
Dorado or something like that, but it happened at a trailer park.”
       Lopez first disclosed defendant’s incriminating statements sometime around May
2010, during an interview with district attorney investigator Andrew Meyer. At the time,
Lopez was out of custody, awaiting sentencing in his criminal case and expecting to
receive a grant of felony probation. During the interview, Meyer did not make any
promises to Lopez in exchange for disclosing information about defendant.
       Lopez later failed to show for sentencing in his criminal case and was taken into
custody. It was at that time that Lopez’s lawyer came to him and told him the district
attorney was offering a deal in exchange for Lopez testifying against defendant. The deal
was probation in lieu of an eight-year prison term. Lopez acknowledged he would not

                                              6
have testified against defendant if he had not been offered the deal. Lopez was concerned
he or members of his family might someday get killed by the Sureño gang because he
testified against defendant.
       Jesus Velasquez was incarcerated in the Kings County jail beginning around July
21, 2011, and was housed with defendant in a pod for Sureño gang members. According
to Velasquez, defendant was “a high rank soldier” among the Sureños in jail. Based on
his high status in gang politics, defendant had the right to ask other Sureños for their legal
paperwork and booking sheets.
       When Velasquez asked defendant why he was in jail, defendant said he was there
for murder. Assuming defendant had shot someone, Velasquez asked defendant why he
shot his victim. In response, defendant told Velasquez, “[W]hen you have so much
conflict with a certain person you have to remove them.”
       Velasquez first disclosed incriminating information about defendant and other
Sureño gang members to a jail official as part of a gang “debrief.” Velasquez explained
he had made a request to be removed from the Sureño pod because he feared for his life
after overhearing defendant and another high-ranking soldier talking about disciplining
Velasquez for failing to help his cellmate hide a weapon. Velasquez was not offered
anything during the debriefing. He explained the disclosure of information about other
Sureños was a requirement to prove he was really out of the gang and was not just trying
to get into protective custody in order to go after other people.
       Velasquez was later offered a plea bargain to testify in defendant’s trial and in
three other cases. In exchange for his testimony, Velasquez faced probation instead of a
potential term of life in prison. According to Velasquez, some members of his family
were in a witness protection program as a result of his disclosure of information and
testimony against Sureño gang members.



                                              7
       Incidents leading up to the shooting
       On May 17, 2009, Matthew Smith, a Lemoore police officer, was dispatched to
defendant’s residence right before midnight. Defendant and Hernandez were sitting in
front of the residence. They both had a number of injuries. Defendant said he was
assaulted outside his residence by approximately six Hispanic males and one African-
American male. Defendant said two of his attackers were Norteños. Defendant
identified himself as a VST Sureño.
       In his police interview regarding the May 2009 attack, defendant implicated the
victim and expressed the belief that the victim attacked him in retaliation for an early
fight between them at the trailer park. During the interview, one of the interviewers
pointed out to defendant that “those busters gonna keep messing with you guys.”
Defendant responded, “It’s on. You know?”
       According to Spain, whenever defendant and the victim were around one another,
there was always “drama.” They hated each other since they were kids. Spain had never
known anyone who had as many problems with the victim as did defendant. It seemed
personal. They were always challenging each other.
       In July 2009, when Spain was sitting on her porch with Lavery, the victim and a
friend of his ran into her yard. They were being chased by defendant and Hernandez,
both of whom were carrying knives. The incident ended when Spain intervened, telling
defendant he was disrespecting her grandmother’s house and that there were little kids
present.
       Spain further reported that, in September or October 2009, defendant was walking
with a friend, when one of them tried to punch the victim through his fiancée’s car
window before she drove away. On that occasion, defendant called Spain a “buster
bitch.” Spain explained, “A buster is what Sureños call Norteños in a disrespectful way.”
When the victim and his fiancée returned home later, defendant and his friend were

                                              8
waiting there with two females. When the victim and his fiancée went to pull in, one of
the females cracked their windshield with a golf club.
       On another occasion, Spain pulled into a gas station with the victim. By chance,
they spotted defendant on his bike. The victim and a friend got out of the car and
attacked defendant. Spain could not recall how many times they punched defendant, but
recalled that they bragged about giving defendant rib shots.
       Lavery was also aware of the history of conflict between defendant and the victim.
The victim told Lavery he and defendant fought in juvenile hall. On another occasion,
defendant rushed at Lavery in the trailer park, mistaking him for the victim.
       On December 18, 2009, Officer Smith took photographs of Sureño gang graffiti
that had appeared around defendant’s neighborhood near his house. Some of the graffiti
was at a Chevron station and included: “VST,” “ESD,” “SUR,” “X3,” and “187 on all
busters.” The other graffiti appeared at a playground area and included: “VST,” “113,”
“X3,” and “chapa killa.”
       Officer Smith had not seen any VST-related graffiti since defendant’s arrest. To
Smith’s knowledge, defendant was the only Sureño gang member in Lemoore who
identified as VST. The officer infrequently ran into Sureños, explaining the town was
“primarily BPN” which stands for brown pride Norteño.
       On the afternoon of the December 30, 2009, shooting, Lavery spoke to his sister,
the victim’s fiancée. She told Lavery that earlier in the day there had been an incident in
which defendant had threatened the victim at a store. Defendant walked up to the victim
and said “as soon as the family is not around him then he will get at him.”
       Gang evidence
       In 2004, Lemoore police officer Janet Hanes, spoke to then 13-year-old defendant,
after he got into a fight with another student who looked at him the wrong way. When
Hanes asked defendant if he was a Sureño, defendant answered that his family members

                                             9
were gang members so he might as well be one too. Defendant also told the officer that
he would not wear K-Swiss shoes because K-Swiss stands for “kill a scrap when I see a
scrap.”
       On September 6, 2005, Joe Ingorvaia came into contact with defendant when
defendant was 14 years old. At the time, Ingorvaia was working as a peace officer at El
Camino High School in Oceanside. The security supervisor brought defendant to
Ingorvaia because defendant was refusing to remove his hat, which had the letters VST
on it. Defendant told Ingorvaia he was from Lemoore and that VST stood for “Vicki’s
town south side,” a gang from that area. Defendant said he was jumped into the gang
when he was 13 years old, and that he was on gang probation. Ingorvaia patted defendant
down and found a folding knife in his pocket. Defendant said he brought the knife to
school for protection.
       On September 23, 2005, Lemoore police commander Steven Rossi interviewed
defendant in connection with an investigation into graffiti that had appeared at a local
college. During the interview, defendant told Rossi his moniker was Casper. Rossi took
a photograph of a tattoo of three dots on defendant’s left wrist. Defendant admitted
spray-painting the letters VST at the college.
          On February 15, 2006, Mark Grijalva, a juvenile correctional officer, observed an
altercation between defendant and David Cooper; Cooper was classified as a northern
gang member. Defendant had asked permission to get a drink from the water fountain.
When he got to the water fountain he started punching Cooper, who was working on a
task next to the water fountain. Another officer had to use pepper spray because
defendant and Cooper continued fighting after everyone was told to get down.
       On March 13, 2007, there was an altercation between defendant and the victim at
Lemoore High School. Lemoore police officer Oscar Lucio responded to the fight.
When Lucio spoke with defendant, defendant said he was always getting picked on by

                                             10
Noreteño gang members because he was the only southerner at the school. Defendant
said the victim wanted to fight with him because the victim was a northerner. Officer
Lucio observed defendant had three dots tattooed on his hand, and one by his eye.
        Kings County Sheriff’s detective Robert Balderama testified regarding a number
of items which were found in defendant’s house following his arrest, including, among
other things, a blue baseball bat, articles of blue clothing, a photograph in which
everyone was wearing blue, and various gang-style drawings and music CD’s.
        District attorney investigator Andrew Meyer testified as an expert in criminal
street gangs. The Sureños are a criminal street gang which operates on the streets, in the
prison system, and local jails; it originated with the Mexican Mafia prison gang. The
Sureños’ primary activities are assaults, drug sales, and murder. Sureños wear blue and
identify with the number 13, while their rival, the Norteños, wear red and identify with
the number 14.
        In Meyer’s opinion, defendant was a Sureño gang member, and was a member of
the Sureño subset VST, which stands for Vickie’s town. Although there were not many
VST members in Kings County, Meyer knew there were over three VST members in
2009.
        Meyer opined that defendant was an active gang member based in part on a video
recording Meyer took in the Kings County jail. Meyer explained, “I recorded the
Sureños [including defendant] coming out to their yard and programming or working out
as they’re supposed to, as they’re ordered to be good soldiers, to be strong soldiers ready
for battle.” While the video was being played to the jury, Meyer described what was
being depicted as follows:

               “During the recording the audio that is on the recording is their
        cadence that they’re calling out. Some of it—most of it is in Spanish and
        some English. They’re counting uno, dos, tres and you will hear where
        they’re supposed to be saying four they will say Sur for south or Sureño,

                                             11
      because they will not say four because four is the number of the rivals.
      And it is very loud, they want everybody to hear it, they want rivals,
      everybody in the jail to know that they’re working out. I could tell they
      were working out just from my office at the county complex when they’re
      out working out in the yard, that is how loud they are. [¶] … [¶]

              “There is actually the—when they come out to yard they line up in
      formation similar to how the military formations would be, morning
      workouts and boot camp for example. They line up, they start doing their
      work outs, there will be two leaders in the front calling the cadence, and
      you will hear the rest of the inmates also involved in that cadence calling,
      and then after that they will go up and do some pull ups, work out after
      their initial workout together as a group. [¶] … [¶]

              “If you want to stop it right there. These are all Sureños out in that
      yard, there is no other gang out there. If there were any other rivals out
      there. If there were any other rivals out there it would be a fight, they
      wouldn’t be working out right now. It is just Sureños working out, and
      right there is the defendant Casper or Salvador Rodriguez known as Casper.
      And right there they said Sur instead of quarto, uno, does, tres, and I
      zoomed in on him because I wanted to see him actually say it as well, just
      to show that he is still an active gang member, that his allegiances are to the
      Sureño gang and the Mexican Mafia.”
      Meyer also testified regarding a jail surveillance video depicting defendant’s
participation in a gang-related assault. As the video was played to the jury, Meyer again
described what was being depicted in the video:

             “During this video it has been played once before I believe, three
      Sureño gang members in the pod where the defendant is being housed,
      including the defendant being one of the assailants assaults a fourth Sureño
      gang member. That assault occurred because the—they go up to him, they
      ask the victim in that case for his paperwork, his charges of 261.5 PC. [¶]
      … [¶]

             “Statutory rape. The individual who gets beat up had sex with a 17
      year old, his girlfriend, but that is one of those charges that even gang
      members have a code of honor that they’re not supposed to have even
      though they all violate it on the streets or a lot of them on paper in jail or in
      a custody situation like prison is a no no, and they assault them for it. [¶]
      … [¶]


                                             12
               “All right—well, that is Salvador that just walked off this way, the
       defendant. There is Angel Diaz right here, and he looked up to the camera
       there for a second as he a [sic] walking by. There he is looking up at it
       again trying to see if the camera is actually pointed at him. There he looks
       at it again, they are all starting to commingle because they know what—
       they know what they’re about to do. The victim is sitting back here in the
       back, which I would be—which I would describe this individual is looking
       back, distracting the person who is about to be assaulted. [¶] … [¶]

              “… And then you can see—you can kind of see that stance that
       Velasquez was talking about, Casper is standing in it right now here with
       his feet kind of shaped like that [i.e., an “S”]. He happened I go to the jail
       and watch that or watch the Sureños and the Norteños, we watch them both.
       [¶] … [¶]

              “Just their mannerisms. We want to know everything about them, so
       periodically we will go to the jail watch what they’re doing, how they’re
       acting. So the person that is controlling the camera had a feeling that
       something was going to happen. So Casper goes off with the victim. [¶] …
       [¶]

              “Paperwork in his hands, and they begin assaulting him, and this
       case was investigated initially by patrol, by a patrol deputy, and then it was
       taken over by the Kings County Gang Task Force and I requested
       Investigator Smyers to go investigate this case.”
       Through hypothetical questions, Investigator Meyer opined the shooting in this
case benefitted and was committed in association with a criminal street gang. He
explained gang members typically do not act alone and therefore the other individuals in
the van would have been fellow gang members. The shooting would benefit the gang by
eliminating a rival gang member. The status of the shooter and all those participating
would also go up as a result of the shooting.
       In rendering his opinion, Meyer also testified that drive-by shootings were a
typical gang crime and remarked: “In and out quickly, try not to be identified. It is
cowardness [sic] really, they call it what they want, honorable, taking out the enemy, but
it is really cowardous [sic], drive up shooting and then leaving”



                                             13
       Possession of a sharp instrument in jail
       On April 6, 2011, a six-inch shank was found concealed inside the seam of
defendant’s jail-issued coveralls.
                                      DISCUSSION
I.     Admission of Multiple Hearsay
       Defendant contends the trial court abused its discretion in admitting Lavery’s
testimony that his sister, the victim’s fiancée, told him defendant verbally threatened the
victim the afternoon of the shooting. We conclude that any error in admitting the
testimony was harmless.
       The relevant testimony is as follows:

              “[THE PROSECUTOR]: Q. Yeah, start from the beginning, I don’t
       want to lead you, so just tell me.

                “[LAVERY]: A. I needed some cigarettes so I left the trailer park
       for a couple minutes to go down to the street to believe it is a 76 Station or
       it is a Shell to grab a pack of cigarettes, and I wanted to come back real
       quick because my sister was tripping on all the stuff that was going on.

              “Q. Like what?

              “A. Supposedly earlier that day that they had an incident with
       Casper, and that he said that as soon as the family is not around him then he
       will get at him. [¶] … [¶]

              “[DEFENSE COUNSEL]: Objection, this is calling for hearsay.

              “THE COURT: Overruled.

             “[THE PROSECUTOR]: Q. Go ahead and answer the question.
       The question was there was something happening, your sister had some
       drama that you needed to get back to right away, what was that drama?

              “[LAVERY]: A. My sister told me that she had been at the store
       and that Casper had walked up on him. [¶] … [¶]

              “[DEFENSE COUNSEL]: Objection, hearsay.


                                             14
               “THE COURT: Sustained.

             “[THE PROSECTUOR]: Q. You knew there was some drama and
       you needed to get back to the house where your sister was?

               “[LAVERY]: A. Yeah.”
       In reliance on the statutory mandate that each statement in a multiple hearsay
statement meet the requirements of an exception to the hearsay rule (Evid. Code, § 1201),
defendant argues that, while the first level of hearsay—his statement threatening the
victim—arguably falls under an exception to the hearsay rule, the second level of
hearsay—the statement by Lavery’s sister recounting defendant’s threat to Lavery—does
not fall under any exception and therefore Lavery’s testimony regarding defendant’s
threat was inadmissible. The People concede the trial court erred for this reason.
However, the People assert any error was harmless beyond a reasonable doubt (Lilly v.
Virginia (1999) 527 U.S. 116, 139-140) because the evidence defendant threatened the
victim on the day of the shooting added little to the compelling evidence of motive and
intent to harm that was properly before the jury. We agree.
       Contrary to defendant’s suggestion, evidence he threatened the victim the day of
the shooting played a minor role in the prosecution’s case. The prosecution’s theory was
that defendant had already formed the requisite intent to kill the victim long before the
day of the shooting. The prosecutor notably made no mention of defendant’s threat in
argument but stressed evidence of the escalating incidents of violence between defendant
and the victim leading up to the shooting and the appearance of threatening gang graffiti
in defendant’s neighborhood 12 days before the shooting. It was primarily these
circumstances, and the circumstances surrounding the shooting itself, on which the
prosecution relied to prove the murder was willful, deliberate, and premeditated.4 The

4      For example, the prosecutor argued: “This was planned out, classic case of first degree
murder. A studied hatred. Preplanned, that is what this means. So that is why I was talking
about considering the events that happened before and right before the shooting [i.e., defendant

                                               15
improperly admitted testimony regarding defendant’s threat to “get at” the victim was
cumulative to other strong evidence of defendant’s motive and intent which was properly
admitted.
       Defendant’s specific arguments in support of his claim he was prejudiced by the
admission of Lavery’s testimony are unpersuasive.
       First, without explaining specifically how it applies to this case, defendant quotes
the following language from People v. Ireland (1969) 70 Cal.2d 522 (Ireland):

       “The error was prejudicial. The statement in question not only reflected
       [the declarant victim’s] state of mind at the time of utterance; it also
       constituted an opinion on her part as to conduct which defendant would
       undertake at a future time. On the basis of this hearsay opinion the jury
       might reasonably have inferred that [the victim] several hours before the
       homicide had concluded that defendant had then formed the intention to kill
       her. The next logical inference, to wit, that [the victim’s] assessment of
       defendant’s then intention was accurate and defendant had in fact formed
       an intention to kill several hours before the homicide … strikes directly at
       the heart of the defense.” (Id. at p. 532.)
Defendant omits the contents of the hearsay statement at issue in Ireland, which is
substantially different than the statement at issue here. There, the murder victim
purportedly made the following statement to a friend about the defendant: “‘I know he’s
going to kill me. I wish he would hurry up and get it over with. He’ll never let me
leave.’” (Ireland, supra, 70 Cal.2d at p. 528, italics added.) Ireland is not analogous to
this case and does not support defendant’s claim of prejudice.
       Next, defendant points out the absence of evidence directly linking him to the
shooting, emphasizing the following circumstances: surveillance video recorded at the
trailer park did not reveal the identity of the shooter or many details of the shooting;

pointing from inside the van to something in the trailer park and the van turning off its lights and
making a u-turn before the shooting in order to ensure its escape from the trailer park], and of
course months leading up to it, and that photograph of the graffiti all helps explain this.”



                                                16
various witnesses testified it was very dark that night and extra lights were needed before
law enforcement could conduct their investigation of the crime scene; Spain did not see
defendant in the trailer park or in the van at the time of the shooting and said defendant
was not the shooter; Lavery thought he saw defendant in the backseat when the van was
outside the trailer park, but he did not see defendant in the van at the time of the shooting
and Lavery, like Spain, indicated the front seat passenger was the shooter; and there was
no physical evidence (DNA, fingerprint, etc.) linking defendant to the crime scene.
       Despite the lack of physical evidence, there was powerful circumstantial evidence
connecting defendant to the shooting. Contrary to defendant’s assertion, Lavery did
testify to seeing defendant inside the van after it entered the trailer park. Although the
occupants were wearing ski masks when he saw the van returning from the back of the
trailer park, Lavery explained he recognized defendant inside the van by the clothing he
was wearing. And while defendant challenges Lavery’s credibility and objectivity based
on his criminal background and close personal ties to the victim, defendant’s presence
and involvement in the shooting was further substantiated by the jailhouse informants,
Lopez and Velasquez. Their testimony regarding defendant’s incriminating statements
contained details consistent with the eyewitnesses’ accounts of the shooting and their
descriptions of the longstanding animosity between defendant and the victim.5

5        Defendant suggests Lopez and Velasquez were not reliable witnesses because they
“avoided substantial prison sentences and were released on probation in exchange for their
claims that [defendant] made incriminating statements to them about this case while in jail with
them.” However, as reflected in our factual summary, neither witness was promised anything
during the interview and gang debriefing in which they first revealed defendant’s incriminating
statements. We also disagree with defendant’s suggestion that Lopez’s testimony lacked
credibility because he identified the van involved in the shooting as being white, while
eyewitnesses testified that it was blue. This is a minor discrepancy when viewed in light of all
the accurate details Lopez provided, including the name of the trailer park where the shooting
took place. Moreover, there is no evidence Lopez and Velasquez, who were in jail with
defendant at different times, ever met or communicated, which might have raised some doubt as
to their credibility.

                                               17
       Moreover, contrary to defendant’s suggestion, the absence of evidence
establishing he was the shooter is not significant because, as the prosecutor emphasized
in closing argument, the prosecution’s theories of liability for first degree murder did not
depend on defendant being the actual shooter.
       Finally, defendant criticizes the prosecution for basing “a substantial amount” of
its case on “evidence of uncharged, unrelated crimes, and gang evidence.” According to
defendant, “[t]he fact that the prosecutor felt it necessary to bombard jurors with a
barrage of prejudicial information only peripherally related to this case manifested an
awareness that the prosecution case against [defendant] was not airtight.” We disagree.
The gang evidence in this case was highly relevant and probative on a number of issues at
trial and does not necessarily demonstrate any weakness in the prosecution’s case.
       On the contrary, the evidence against defendant was very strong. In addition to
the witnesses’ testimony linking defendant to the shooting discussed above, other
circumstantial evidence of defendant’s guilt included defendant’s call to Hernandez,
approximately an hour after the shooting, stating he needed a ride to another town
because somebody had died, defendant’s shifting account of his whereabouts on the day
of the shooting during his police interview, and defendant’s impeachment by his own
grandmother in that she reported she learned about the shooting from defendant, while he
claimed he learned about the incident from her when he got back to her house that night.
On the record before us, we cannot agree with defendant’s theory that he was prejudiced
by the admission of evidence of his threat to the victim because the prosecution’s case
against him was otherwise weak.
       For all the forgoing reasons, we conclude any error in admitting the multiple
hearsay evidence, which played a minor role in the prosecution’s case and was
cumulative to other compelling evidence of defendant’s motive and intent, was harmless
under any standard of review.

                                             18
II.    Ineffective Assistance of Counsel
       Defendant contends he received ineffective assistance of counsel at trial because
defense counsel “never objected to the introduction of several objectionable items of
evidence.” Specifically, he argues counsel should have objected to the following: (1)
Meyer’s opinions on the subjective thought processes of the participants in the gang
assault depicted on the jail surveillance video recording and the video itself; (2) Meyer’s
opinion that the charged offense constituted cowardly conduct; (3) Spain’s testimony
that the victim asked if defendant was in the van (“Is that Casper?”); (4) the jail workout
video; and (5) evidence of unrelated, uncharged crimes. We conclude defendant has
failed to demonstrate defense counsel’s performance was deficient or that he was
prejudiced as a result of counsel’s alleged omissions.
       The burden of proving ineffective assistance of counsel is on the defendant.
(People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-
694.) This is a “‘high bar,’” and surmounting it is not easy. (Harrington v. Richter
(2011) 562 U.S. ___ [131 S.Ct. 770, 788].)
       In order to prevail on a claim of ineffective assistance of counsel on appeal, the
defendant “must establish deficient performance based upon the four corners of the
record” (People v. Cunningham, supra, 25 Cal.4th at p. 1003), which “must affirmatively

                                             19
disclose the lack of a rational tactical purpose for the challenged act or omission.
[Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.) “Judicial scrutiny of counsel’s
performance must be highly deferential.… A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ [Citation.]” (Strickland v. Washington, supra,
466 U.S. at p. 689; accord, People v. Hinton (2006) 37 Cal.4th 839, 876.) In addition, the
defendant must prove prejudice “as a ‘demonstrable reality,’ not simply speculation as to
the effect of the errors or omissions of counsel. [Citation.]” (People v. Williams (1988)
44 Cal.3d 883, 937.)
       As to the failure to object in particular, “[a]n attorney may choose not to object for
many reasons, and the failure to object rarely establishes ineffectiveness of counsel.”
(People v. Kelly (1992) 1 Cal.4th 495, 540.) Only if the record affirmatively discloses
that counsel had no rational tactical purpose for his act or omission will a reviewing court
reverse. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
       Defendant has not made the difficult showing required to overcome the
presumption favoring the reasonableness of counsel’s performance. Defendant does not
specifically argue or point to evidence in the record establishing that counsel could have
no rational tactical purpose for failing to object to the evidence he highlights. Indeed,
much of the evidence, such as the prior incidents reflecting defendant’s longstanding




                                             20
gang membership,6 appears to have been relevant and admissible and therefore defense
counsel could have reasonably concluded any objection would be futile. Counsel is not
required to make futile or unmeritorious arguments on behalf of a defendant. (People v.
McPeters (1992) 2 Cal.4th 1148, 1173.)
       However, even assuming that defense counsel’s performance was deficient,
defendant has failed to establish prejudice. He does not specifically address the potential
impact of each of defense counsel’s alleged omissions on the outcome of the trial.
Instead, he simply repeats the same critique of the prosecution’s case he made in arguing
he was prejudiced by the erroneous admission of multiple hearsay addressed, ante, in part
I. of our discussion. For the same reasons discussed above, we find defendant’s critique
of the prosecution’s evidence unpersuasive and reject his suggestion that the introduction
of the complained-of evidence was necessarily prejudicial because the prosecution’s case
against him was weak. Defendant has not proved as a demonstrative reality that the
outcome of the trial would have been different had counsel successfully objected to any
or all of the items of evidence listed above. He therefore has failed to meet his burden of
proving ineffective assistance of counsel.
       Moreover, our own assessment of the potential impact of each of the complained-
of items of evidence convinces us that it is not reasonably probable their exclusion would
have made a difference in the outcome of the trial. After carefully reviewing the jail
assault and workout videos and Meyer’s testimony narrating what was depicted therein,
we agree with the People that they constituted “a small part of an extensive case that
clearly showed that [defendant] was a long time and committed Sureño gang member
who had a gang based and personal conflict with the victim in this case” and that

6       Among other things, the prosecution was required to prove that defendant was an active
member a criminal street gang (§ 190.2, subd. (a)(22)), something he denied in his police
interview regarding the shooting.


                                              21
defendant’s “motive to commit the murder was well documented by overwhelming
evidence independent of the video and any comments related to the video.” Similarly,
there was powerful evidence placing defendant in the van at the time of the shooting
independent of Spain’s hearsay testimony that upon first seeing the van, the victim asked,
“Is that Casper?” We also agree with the People that neither Meyer’s brief testimony,
expressing the opinion that drive-by shootings were cowardly, nor evidence of
defendant’s uncharged crimes was unduly prejudicial such that a successful objection to
the evidence likely would have changed the outcome of the trial. Furthermore, in light of
the compelling evidence of defendant’s guilt already discussed, we reject his claim the
cumulative effect of defense counsel’s alleged omissions was prejudicial.
III.   Prosecutorial Misconduct
       Defendant contends the prosecutor committed prejudicial misconduct during
closing argument. We disagree.
       “A defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion, and on the same ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the perceived impropriety.
[Citation.]” (People v. Thornton (2007) 41 Cal. 4th 391, 454 (Thornton).) Defendant did
not object to the alleged instances of misconduct he now claims on appeal and has
therefore forfeited his claims of misconduct relating to the prosecutor’s statements during
closing argument.
       In any event, we see no prosecutorial misconduct in closing argument. “At that
stage, prosecutors have wide latitude to discuss and draw inferences from the evidence
presented at trial. ‘“Whether the inferences the prosecutor draws are reasonable is for the
jury to decide.”’ [Citation.]” (Thornton, supra, 41 Cal. 4th at p. 454.) As shall be seen,
the complained-of remarks by the prosecutor were properly based on reasonable
inferences drawn from the evidence.

                                            22
      a. Argument about graffiti
      Defendant first contends the prosecutor improperly argued that graffiti by an
unknown person proved that defendant premeditated the charged homicide.
      In support of his contention, defendant refers to the following remarks in the
prosecutor’s closing argument:

              “… 12 days before the murder, 12 days, you know, this Exhibit 145
      tells you what is going on, and I think you can come to a conclusion that
      people who did this is none other than the defendant and [Hernandez], and I
      will tell you why. We already know what VST stands for, we know that is
      his subset. We also know from Officer Smith that since this defendant was
      incarcerated for what happened in December 30th, 2009, he has not again
      seen VST graffiti. We also know what this means, ESD, East Side Duke.
      Who else is East Side Duke, and who is VST? The only VST member in
      this neighborhood, in fact in the City of Lemoore as far as patrol Officer
      Smith says, the only one was this defendant. [Hernandez] is East Side
      Duke. So 12 days before the murder you see that, and of course you know
      what it says, 187 on all busters. That was a message, this was coming, this
      was premeditated. This was deliberate.…

             “But this is not the only one. About five, eight houses down from
      where he lives, ‘chapa killa.’ And so we know that this is a VST graffiti,
      because it is on the wall, you see this is not the close-up, but the longer
      view. This is VST, there is chapa killa, 113 percent. He was announcing
      that he was going to do this, that it was on …”
      Defendant also refers to the following argument in the prosecutor’s rebuttal:

      “It wasn’t that he was just in that van. He was in the van and he was there
      for a reason. This was premeditated, and it was announced in those
      photographs when he was doing that graffiti, 187 on all busters 12 days
      before. [¶] I ask that you find him guilty, and that you find him guilty of
      first degree murder with special circumstances, thank you.”
      Based on the foregoing remarks, defendant complains: “The fact that appellant
was a Sureño did not establish that appellant was automatically responsible for thoughts
expressed in all Sureño graffiti any more than a resident of his town would be responsible
for all thoughts expressed in the locality’s newspaper editorials.” Defendant’s analogy is


                                            23
unpersuasive because, as the prosecutor noted, there was evidence that defendant was the
only VST gang member who lived in the area where the graffiti was found 12 days before
the victim was killed, and VST-related graffiti ceased following defendant’s arrest. The
graffiti specifically referred to VST and the killing of members of the Noreteño gang
(e.g., “187 on all busters”), the gang to which the victim belonged. It was not
unreasonable or improper for the prosecutor to infer from these circumstances that
defendant was responsible for creating the graffiti or that the graffiti was evidence the
subsequent killing of the victim was deliberate and premeditated.
       b. Argument about defendant pointing
       Next defendant contends the prosecutor committed misconduct by arguing that
defendant was pointing at the victim when Lavery saw defendant pointing at something
before the van entered the trailer park. According to defendant, the prosecutor’s
argument misstated Lavery’s testimony and was therefore improperly based on facts not
in evidence.
       In closing argument, the prosecutor argued in relevant part as follows:

       “It is up to you to determine whether he had enough time to deliberate, but
       you remember Lavery talking about seeing him in the van, seeing that van
       stop and then point, what was he pointing at? [Spain] talked about how she
       was with a group of people, a group of teenagers, and [the victim] joined
       them. He was pointing at [the victim]. The evidence indicates that he was
       saying there he is. They went there with a plan. What did they do? The
       van didn’t—the shot didn’t come on the first go round, they made a u-turn
       to make sure that they got away. The lights went off, do you remember, the
       lights were turned off, the window is rolled down and then the shooting
       happened. This was planned out, classic case of first degree murder.…”
       In rebuttal, the prosecutor argued:

       “Lavery said he pointed at something, he didn’t say what he was pointing at
       because he couldn’t see the group at that point, but when the van stopped in
       front of him this defendant was pointing at something. And the context you
       understand what was happening, it isn’t just a mere fact of he was in the
       van .…”

                                             24
       The prosecutor did not misstate Lavery’s testimony. Defendant is correct that
when Lavery testified that he saw defendant pointing at “something” inside the trailer
park, Lavery did not identify at what or whom defendant was pointing. However, the
prosecutor never represented to the jury that it was Lavery’s testimony that he saw
defendant pointing at the victim. Rather, the clear thrust of the prosecutor’s argument
was that the circumstances surrounding the shooting supported the conclusion that
defendant was pointing at the victim. This was a reasonable inference based on the
evidence cited by the prosecutor.
       c. Argument about defendant’s gang culture
       Finally, defendant claims the prosecutor misstated the law by arguing “that being a
gang member meant that [defendant] was automatically a member of a criminal
conspiracy at the time of the shooting.” The prosecutor made no such argument and we
therefore reject defendant’s claim.
       Specifically, the prosecutor argued:

       “When Lavery tells you that he saw him in the van, there was only one
       reason for him [defendant] to be there. Whether or not he pulled the
       trigger, he was in on it. He wasn’t there to stop it, he wasn’t there to create
       peace, it was consistent with everything he had done up to that point,
       because he has embraced the culture of violence. For as long as he can
       remember he has been associated with this gang. What did he say? My
       family members are, so I might as well be, too, that was when he was 13.
       And what is that part of that culture? You don’t let your gang members
       down, you are expected to participate in that fight or that assault or that
       shooting. Drive-bys have been anonymous in gang members for a reason,
       they do these things together, they rolled up together, they intimidate, this
       is how they do what they do.”
       The prosecutor’s comments on the culture of defendant’s gang and the role it
played in the shooting were properly based on the evidence before the jury. Nowhere did
the prosecutor argue, in defendant’s words, “that gang membership automatically made



                                              25
appellant a lifetime member of an ongoing amorphous criminal conspiracy” and it is
unlikely the jury would have construed the prosecutor’s comments in this manner.
         In short, defendant’s complaints of prosecutorial misconduct are without merit.
The prosecutor properly discussed and drew inferences from the evidence presented at
trial.
IV.      Cumulative Error
         Defendant contends that the cumulative impact of all of the above errors deprived
him of a fair trial. We have either rejected defendant’s claims of error and/or found that
any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any
errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514,
560.)
V.       Parole Revocation Fine
         Defendant contends the abstract of judgment erroneously includes a $10,000
parole revocation restitution fine pursuant to section 1202.45. Defendant argues the fine
is not legally authorized given his indeterminate LWOP sentence, and is also improper
because such a fine was never imposed by the trial court at the sentencing hearing. We
disagree.
         It is undisputed that at the sentencing hearing, in the presence of defendant, the
trial court orally imposed a restitution fine pursuant to section 1202.4, subdivision (b), in
the amount of $10,000. It was therefore mandatory for the court to impose a parole
revocation restitution fine in the same amount pursuant to section 1202.45. “Under
section 1202.45, a trial court has no choice and must impose a parole revocation fine
equal to the restitution fine whenever the ‘sentence includes a period of parole.’” (People
v. Smith (2001) 24 Cal.4th 849, 853.) The failure to impose the mandatory parole
revocation restitution fine following imposition of a restitution fine pursuant to section



                                               26
1202.4, subdivision (b) results in an unauthorized sentence. (People v. Terrell (1999) 69
Cal.App.4th 1246, 1255.)
       In People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the defendant had been
sentenced to death, but also received additional determinate sentences on related counts,
for which a period of parole was applicable. (Id. at p. 1049.) Our Supreme Court held
that where the defendant is sentenced to at least one determinate term for which parole is
applicable, a parole revocation restitution fine is legally authorized and must be imposed,
per statute, if a restitution fine is imposed by the court pursuant to section 1202.4,
subdivision (b). (Brasure, supra, 42 Cal.4th at p. 1075.)
       In so holding, Brasure distinguished People v. Oganesyan (1999) 70 Cal.App.4th
1178, relied upon by defendant. The Supreme Court explained that the sentence imposed
in Oganesyan did not include any determinate terms for which a period of parole applied,
but only two indeterminate sentences, including life without the possibility of parole. As
such, there was no basis for imposition of a parole revocation restitution fine given the
express statutory language of section 1202.45. (Brasure, supra, 42 Cal.4th at p. 1075.)
       Brasure also rejected the argument that the fine was improper because the
defendant would not likely ever serve any period of parole. “As in Oganesyan, to be
sure, defendant here is unlikely ever to serve any part of the parole period on his
determinate sentence. Nonetheless, such a period was included in his determinate
sentence by law and carried with it, also by law, a suspended parole revocation restitution
fine. Defendant is in no way prejudiced by assessment of the fine, which will become
payable only if he actually does begin serving a period of parole and his parole is
revoked.” (Brasure, supra, 42 Cal.4th at p. 1075.)
       Defendant’s sentence here includes the indeterminate sentence on count 1 but also
includes, like the defendant’s sentence in Brasure, a determinate term for which parole is
applicable. We conclude Brasure is controlling and the imposition of the parole

                                              27
revocation restitution fine was proper. (People v. Birks (1998) 19 Cal.4th 108, 116,
fn. 6.) Because the court’s minute order from the sentencing hearing and the abstract of
judgment duly reflect the imposition of the parole revocation restitution fine in the
amount of $10,000, stayed, notwithstanding the fact the court did not impose the fine
during the sentencing hearing, no order of modification to the judgment is required.
VI.    Imposition of 10-year Gang Enhancement
       Defendant contends, the People concede, and we agree that the trial court was not
authorized to impose both the 10-year gang enhancement under 186.22, subdivision
(b)(1) and the 25 year-to-life firearm discharge enhancement under section 12022.53,
subdivision (e)(1).
       Because the evidence indicated defendant was not the shooter, the firearm
enhancement required a finding that the offense was committed for the benefit of a gang.
Where such a firearm enhancement is imposed on a nonshooter, section 12022.53,
subdivision (e)(2), provides: “An enhancement for participation in a criminal street gang
pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not
be imposed on a person in addition to an enhancement imposed pursuant to this
subdivision, unless the person personally used or personally discharged a firearm in the
commission of the offense.”
       In People v. Brookfield (2009) 47 Cal.4th 583, the high court held section
12022.53, subdivision (e)(2), precludes double punishment whenever the fact that a crime
was committed for the benefit of a criminal street gang is used both to increase the
punishment for the crime and for purposes of a firearm enhancement under section
12022.53, subdivision (e)(1). (Brookfield, at p. 592.) Where both a gang enhancement
and a firearm enhancement apply, the court must impose the greater of the two. (Id. at
p. 596; see § 12022.53, subd. (j).) Here, that would be the firearm enhancement. Hence,



                                             28
the gang enhancement imposed on count 1 must be stricken.7
VII.     Drive-by Special Circumstance
         The special circumstance established by section 190.2, subdivision (a)(21) applies
where “[t]he murder was intentional and perpetrated by means of discharging a firearm
from a motor vehicle, intentionally at another person or persons outside the vehicle with
the intent to inflict death.” Defendant says it is unconstitutionally overbroad, because the
same elements are also used to establish first degree murder on a drive-by shooting
theory.8 Because there is no meaningful distinction between first degree murder and the
special circumstance, he concludes, the special circumstance violates the due process and
cruel and unusual provisions of the United States Constitution. (See, e.g., Gregg v.
Georgia (1976) 428 U.S. 153, 189; United States v. Cheely (9th Cir. 1994) 36 F.3d 1439,
1442.)
         The California Supreme Court has consistently and repeatedly rejected
defendant’s claims. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 225 [California


7      In light of our conclusion that the gang enhancement must be stricken, we do not address
defendant’s argument that, because he received a life sentence, he was not subject to a 10-year
enhancement under section 186.22, subdivision (b)(1), but was subject instead to a 15-year
minimum parole eligibility term under section 186.22, subdivision (b)(5).
8       Jurors were instructed defendant was being prosecuted for first degree murder (as either a
perpetrator or aider and abettor) under two theories: premeditation and shooting a firearm from a
vehicle. With respect to the latter theory, the trial court instructed that the People had to prove
three things: “One, he [(defendant)] shot a firearm from a motor vehicle. [¶] Two, he
intentional[ly] shot at a person who was outside the vehicle. [¶] And three, he intended to kill
that person.”
         Jurors were further instructed there were two special circumstances: murder by shooting
a firearm from a motor vehicle in violation of section 190.2, subdivision (a)(21), and committing
the murder while an active participant in a criminal street gang in violation of section 190.2,
subdivision (a)(22). As to the former, the trial court instructed the People must prove: “One, the
defendant or perpetrator shot a firearm from a motor vehicle killing Jose Manuel Aguirre. [¶]
Two, the defendant or perpetrator intentionally shot at a person who was outside the vehicle, and
at this time the defendant intended to kill.”


                                                29
homicide law and special circumstances listed in § 190.2 adequately narrow class of
murderers eligible for death penalty]; People v. Williams (2010) 49 Cal.4th 405, 469
[§ 190.2 is not impermissibly overbroad in violation of federal Constitution; number of
special circumstances is not so high as to fail to perform constitutionally required
narrowing function; special circumstances are not overinclusive, either facially or as
interpreted by California Supreme Court]; People v. Abilez (2007) 41 Cal.4th 472, 528
[double counting charged felonies—once to elevate degree of homicide to first degree
murder and again to render defendant eligible for death penalty—is permissible]; People
v. Kennedy (2005) 36 Cal.4th 595, 640 [same], disapproved on another ground in People
v. Williams, supra, 49 Cal.4th at p. 459; People v. Pollock (2004) 32 Cal.4th 1153, 1195
[statutory special circumstances adequately narrow class of persons subject to death
penalty]; People v. Catlin (2001) 26 Cal.4th 81, 158 [8th Amend. is not offended where
first degree murder liability and special circumstance findings are based on common
elements]; People v. Lewis (2001) 25 Cal.4th 610, 676 [California’s death penalty
sufficiently narrows class of death-eligible defendants]; People v. Jenkins (2000) 22
Cal.4th 900, 1050 [special circumstances set forth in § 190.2 are not overinclusive by
number or terms and have not been construed in unduly expansive manner]; People v.
Marshall (1990) 50 Cal.3d 907, 945-946 [triple use of same facts—to support conviction
for first degree murder on theory of felony murder, finding of felony-murder special
circumstance, and imposition of death penalty—does not violate federal Constitution];
see also Lowenfield v. Phelps (1988) 484 U.S. 231, 241-246 [rejecting challenge to death
sentence on ground sole aggravating circumstance found by jury at sentencing phase was
identical to element of capital crime of which defendant was convicted]; People v.
Rodriguez (1998) 66 Cal.App.4th 157, 163-164, 172-174 [upholding constitutionality of
§ 190.2, subd. (a)(21) against claims it impermissibly duplicates elements that elevated



                                             30
homicide to first degree murder, and that it is overbroad and permits excessive sentence
for possibly unpremeditated murder].)
       We are bound to follow the pronouncements of our state’s high court. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject
defendant’s claim.
VIII. Gang Special Circumstance
       Defendant contends that because jurors found he was not the shooter, the gang
special circumstance (§ 190.2, subd. (a)(22)) was unauthorized in this case since the
statutory language indicates it only applies to perpetrators, not to aiders and abettors.
Defendant recognizes that this court rejected this argument in People v. Ybarra (2008)
166 Cal.App.4th 1069, 1086 but asks us to reconsider our decision. We decline to do so.
IX.    Section 654
       Defendant contends imposition of both the gang special circumstance and the
firearm discharge enhancement based on his gang participation violates the prohibition in
section 654 against multiple punishment based on the same underlying acts. We
disagree.
       Section 654, subdivision (a) provides that “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”
       The special circumstance established by section 190.2, subdivision (a)(22) applies
where “[t]he defendant intentionally killed the victim while the defendant was an active
participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and
the murder was carried out to further the activities of the criminal street gang.”



                                             31
       Defendant was sentenced to an additional enhancement for firearm use according
to section 12022.53, subdivision (d), which provides: “Notwithstanding any other
provision of law, any person who, in the commission of a felony ... personally and
intentionally discharges a firearm and proximately causes great bodily injury ... or death,
to any person other than an accomplice, shall be punished by an additional and
consecutive term of imprisonment ... for 25 years to life.” (Italics added.) This
enhancement usually requires a finding that the defendant personally used the firearm.
(Ibid.) However, section 12022.53, subdivision (e)(1) extends liability “to any person
who is a principal in the commission of an offense” provided that “[t]he person violated
subdivision (b) of Section 186.22” and “[a]ny principal in the offense committed any act
specified in subdivision (b), (c), or (d).”
       “It is a well-established rule ... that the Legislature may create an express
exception to section 654’s general rule against double punishment by stating a specific
legislative intent to impose additional punishment. [Citations.] A statute which provides
that a defendant shall receive a sentence enhancement in addition to any other authorized
punishment constitutes an express exception to section 654.” (People v. Ramirez (1995)
33 Cal.App.4th 559, 572-573; accord People v. Cartwright (1995) 39 Cal.App.4th 1123,
1139.) The same is true when a statute mandates a punishment “‘[n]otwithstanding any
other provision of law,’” as section 12022.53, subdivision (d) provides. (See People v.
Benson (1998) 18 Cal.4th 24, 32, italics omitted.) A statute need not explicitly refer to
section 654 in order to create an exception to its provisions. (Benson, at p. 32.)
       The clear and unambiguous language of section 12022.53, subdivision (d)
demonstrates an intent to create an exception to section 654: a term of 25 years to life is
mandated “notwithstanding any other provision of law.” The plain meaning of this
statute compels the conclusion that section 654 has no application to defendant’s case.
(See People v. Garcia (2002) 28 Cal.4th 1166, 1172.)

                                              32
X.     LWOP Term
       Lastly, defendant contends an LWOP sentence should not be subject to
enhancement or consecutive terms, and requests we modify the judgment so that his
sentence is “one single, logical term of [LWOP].” Quoting a concurring opinion by
Justice Chin in People v. Cleveland (2004) 32 Cal.4th 704, 770, he argues “‘when a
person has been sentenced to death or LWOP, no need exists to impose any other
sentence.’” Justice Chin’s comment was made in the context of addressing “the absurdity
of trial and appellate courts—as well as prosecutors and defense attorneys—expending
energy and resources dealing with lesser sentencing issues when the defendant has also
been sentenced to death or prison for life without the possibility of parole ....” (Id. at
p. 769.) As defendant acknowledges, Justice Chin proposed a legislative solution to this
situation, noting that “[t]hese are just thoughts.” (Id. at p. 770.) Whatever the merits of
Justice Chin’s concerns, the Legislature has not changed the sentencing laws to address
these perceived problems. We therefore decline defendant’s invitation here to strike the
25-year-to-life firearm discharge enhancement and consecutive three-year term for his
conviction of possessing a sharp instrument in a penal institution in count 2.




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                                     DISPOSITION
       The judgment is modified to strike the 10-year gang enhancement imposed on the
murder conviction in count 1. In all other respects, the judgment is affirmed. The trial
court is directed to prepare a new abstract of judgment accordingly and forward it to the
Department of Corrections and Rehabilitation.



                                                                _____________________
                                                                            HILL, P. J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
CORNELL, J.




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