Filed 5/8/14 P. v. Navarrete CA2/5

                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B247600

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA386978)
         v.

DANNY NAVARRETE et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Frederick N. Wapner, Judge. Affirmed with modifications.
         John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant, Danny Navarrete.
         Orly Ahrony, under appointment for by the Court of Appeal, for Defendant and
Appellant, Juan Carlos Guardaro.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Louis W.
Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellants Danny Navarrete and Juan Carlos Guardado were convicted, following
a jury trial, of the first degree murder of Rodolfo Melendez in violation of Penal Code1
section 187, subdivision (a). The jury found true the allegations that appellants
committed the murder for the benefit of a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C). The jury also found true the allegations that
appellant Navarrete personally used and discharged a firearm causing death within the
meaning of section 12022.53. The jury found true the allegation as to appellant
Guardado that a principal personally used and discharged a firearm in the commission of
the murder within the meaning of section 12022.53. The trial court sentenced appellants
to 25 years to life in prison for the murder conviction, plus 25 years to life for the firearm
enhancement.
       Appellants appeal from the judgment of conviction, contending the trial court
erred in admitting an out-of-court statement by appellant Guardado and imposing and
staying a ten-year enhancement term for the gang allegation. Appellant Guardado
contends his counsel was ineffective for failing to request a limiting instruction for
evidence of his prior bad acts. He further contends there is insufficient evidence to
support his conviction for first degree murder. We order the ten-year enhancement term
stricken and replaced with a minimum parole eligibility term. We affirm the judgment of
conviction in all other respects.


                                            Facts
       In the evening of August 14, 2010, Angel Medina drove his family and Rodolpho
Melendez to a party near 84th Place and Main Street. Melendez was a member of the
18th Street gang. The party was in territory claimed by a rival gang, Sur Trece. From the
party, Medina drove Melendez to pick up his car so that Melendez could leave the party
when he wished. The two drove back to the party separately. As Medina turned onto
84th Place, he saw Melendez parked in front of a tire shop near Main Street. This

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

                                              2
location was across the street from a Sur Trece hang-out. Medina drove past Melendez’s
car and noticed two Hispanic men walking across the street toward Melendez’s car.
       Medina pulled over and saw the men go up to Melendez’s car. One man wore a
dark shirt and a baseball cap and the other was bald and wore a striped shirt. The man in
the striped shirt knocked on the car window. They then appeared to be talking with
Melendez. One of the men made a gang sign. Medina then heard a gunshot.
       The two men ran back across the street. The man wearing the cap handed an
object to the man wearing the striped shirt. The man in the striped shirt ran past
Medina’s vehicle and made a gang sign. Medina was afraid. He went back to the party
and told his family what had happened.
       The Medina family returned to Melendez’s car. Melendez was barely alive, and
was bleeding from a gunshot wound to his head. He soon died from the injury.
       A few weeks after the shooting, police showed Medina some photographic line-
ups. Medina identified appellant Guardado’s photograph in one line-up (Exhibit 5) and
said he was the shooter. He identified appellant Navarrete’s photograph in another line-
up (Exhibit 6) and said he was the accomplice. Medina told officers he was sure of his
identification. At the preliminary hearing and at trial, Medina professed to be less sure of
his identification.2 He gave differing accounts of which man was the shooter. At the
preliminary hearing, Medina testified that the person he identified in Exhibit 5 was
appellant Guardado, who was wearing the striped shirt and was the shooter. At trial,
Medina testified that appellant Navarrete was the person in the Exhibit 5 line-up, was the
one wearing a baseball cap at the time of the shooting and was the shooter. Medina
acknowledged that he was afraid of retribution for testifying.
       The shooting was captured on video by surveillance cameras across the street.
The prosecutor played the video at trial, but none of the cameras recorded the faces of the
shooter and his accomplice with enough clarity to identity them.

2
        At the preliminary hearing, Medina said he was 30 to 40 percent sure of his
identifications in the photo line-ups. At trial, Medina said he was only 40 percent sure of
his identifications.
                                             3
       The prosecution also offered the testimony of Ernie Arellano, who was a Sur
Trece associate or member. In 2010, Arellano had known appellant Guardado for about a
year. Appellant Guardado was a Sur Trece gang member. Arellano had also known
appellant Navarrete for about a year. Appellant Navarrete was a member of the W2K
gang. The W2K gang got along with the Sur Trece gang.
       Before trial, Arellano told Detective Ferreria that appellant Guardado warned him
that he and appellant Navarrete had caught an 18th Streeter “slippin’” (unprepared) and
to lay low until everything calmed down. At the preliminary hearing and at trial, he
denied making this statement. At trial, the prosecution played the audio-recording of
Arellano’s July 24, 2011 and November 9, 2012 interviews with Detective Ferreria. In
these recordings, Arellano can be heard telling detectives about appellant Guardado’s
statement about catching the 18th Streeter “slippin.’”3 After the prosecution played the
recordings, Arellano testified that he was telling the truth in the interviews.
       Arellano testified at trial that he was afraid of appellants. He feared that his
testimony would result in violent retribution against himself and his family. At one point,
he refused to return to court after a break because he was afraid of being seen by
appellants’ family members. He was arrested and ordered to return to court. When he
returned to court, he acknowledged that police had relocated him in October 2011 and
were assisting him with rent and meal payments.
       The prosecution also presented the testimony of Luis Canales, who was a Sur
Trece associate or member. He was arrested for a probation violation on January 21,
2012, for possession of body armor. At that time, he described himself as “a taxi for the
homies.”
       Canales knew both appellants. Appellant Guardado and appellant Navarrete
appeared to be good friends. The appearance of both men was different at the time of
trial than it had been at the time of the Melendez shooting in 2010. At that time,
appellant Navarrete had a shaved head. Appellant Guardado’s hair looked different.

3
      There are a number of inconsistencies in Arellano’s account of the “slippin’”
statements in the interview.
                                              4
       At the time of the shooting, Canales was across the street at the home of a Sur
Trece member. Other Sur Trece members were there, including appellant Guardado.
Arellano was also present. Canales and the others saw Melendez park his car. Appellant
Guardado walked across the street. Canales heard a gunshot from that direction, and
everyone scattered. When Canales was shown a video of the shooting, he stated that
appellant Navarrete was the one wearing the hat and appellant Guardado was the one
wearing the striped shirt.
       A recording of Canales’s November 14, 2012 interview was played for the jury.
In it, he stated that appellant Guardado and appellant Navarrete went across the street and
“banged” on the person in the car. Canales then testified that this statement was true. He
saw both appellants walk across the street and heard the gunshot. His statements were
based on seeing the shooting, not on viewing the video.
       Canales was afraid of retribution for testifying. Like Arellano, Canales had been
relocated and was receiving payments from the police for food and lodging.
       The prosecution also presented the testimony of Los Angeles Police Department
Officer Guillermo de la Riva, who testified as a gang expert. According to the officer,
Sur Trece had about 25 members at the time of the Melendez killing. WTK (or W2K)
was a smaller associated gang or clique. The main activities of Sur Trece were drive-by
shootings, murders, assaults, robberies, extortions and narcotics sales. Committing a
serious crime such as murder would allow a person to gain respect within the gang and
move up in the gang hierarchy.
       Sur Trece’s main rival was the 18th Street gang. In late 2009, Sur Trece had taken
over territory controlled by 18th Street. At the time of the Melendez killing, the 18th
Street gang was actively trying to regain control of its lost territory. Sur Trece was
resisting. There were multiple incidents in which members of the two gangs shot at each
other. If a Sur Trece member encountered a rival gang member in Sur Trece territory, he
would have to confront the rival or face penalties from his fellow gang members.
Melendez was killed in the heart of Sur Trece territory.


                                             5
       According to Officer de la Riva, Arellano and Canales were members of Sur Trece
at the time of the Melendez killing, as was appellant Guardado. Appellant Navarrete was
a member of WTK. Melendez was a member of the 18th Street gang with numerous
gang tattoos on his arms and face.
       Officer de la Riva opined that if a shooting occurred in the manner described by
the prosecution witnesses, it would have been for the benefit of the Sur Trece gang. The
Sur Trece gang members would have to confront the stranger to find out if he was
planning an attack. By shooting the stranger, the gang members instilled fear in the
community and would cause rival gang members to think twice about going into Sur
Trece territory. According to Officer De La Riva, the shooting was carried out in a
typical gang manner, with one gunman and one person acting as a lookout.
       Appellant Navarrete presented no evidence in his defense.
       Appellant Guardado called Detective Ferreria, who testified that although Canales
did not identify appellant Guardado from the surveillance video during the recorded
portion of the police interview on July 24, 2011, Canales did identify him at the
detective’s desk during an unrecorded period. Arellano also identified appellant
Navarrete from the video on that date, but this identification also was not recorded
because the detective forgot to turn the recorder on.


                                          Discussion
       1. Arellano’s statements to police
       Appellants contend the trial court erred in admitting Arellano’s statements to
police concerning appellant Guardado’s admissions about catching an 18th Streeter
“slippin.’” They claim the statements were coerced and involuntary and their admission
violated appellants’ federal constitutional rights to due process and a fair trial.


       a. Applicable law
       It is the burden of a defendant seeking to exclude testimony of a third-party
witness as being coerced to establish that the statement was involuntary. (People v.

                                               6
Douglas (1990) 50 Cal.3d 468, 500, overruled on other grounds by People v. Marshall
(1990) 50 Cal.3d 907, 933, fn. 4.) A defendant may only challenge the admission of a
third party witness’s statement when the evidence would violate the defendant’s own
right to due process of the law and a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900,
966; People v. Badgett (1995) 10 Cal.4th 330, 347.) This is so because “the primary
purpose of excluding coerced testimony of third parties is to assure the reliability of the
trial proceedings.” (People v. Badgett, supra, 10 Cal.4th at p. 347.)
        No single factor is dispositive in evaluating the voluntariness of a statement.
(People v. Williams (1997) 16 Cal.4th 635, 661.) “In deciding the question of
voluntariness, the United States Supreme Court has directed courts to consider ‘the
totality of circumstances.’” (Id. at p. 660, quoting Withrow v. Williams (1993) 507 U.S.
680, 693-694.) Relevant considerations include “‘the crucial element’” of police
coercion; the length, location and continuity of the interview; and the interviewee’s
defendant’s maturity, education, physical condition and mental health. (People v.
Williams, supra, 16 Cal.4th at p. 661.) Coercive conduct alone is not sufficient for
reversal. “A confession is not involuntary unless the coercive police conduct and the
defendant’s statement are casually related.” (People v. Williams (2010) 49 Cal.4th 405,
437.)
        Ultimately, the question is whether the statement is the product of an “‘essentially
free and unconstrained choice’” or whether the defendant’s “‘will has been overborne and
his capacity for self-determination critically impaired’” by coercion. (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 225.)
        Appellate courts “independently review the entire record to determine whether a
witness’s testimony was coerced, so as to render the defendant’s trial unfair,” while
“defer[ing] to the trial court’s credibility determinations, and to its findings of physical
and chronological fact, insofar as they are supported by substantial evidence.” (People v.
Boyer (2006) 38 Cal.4th 412, 444.) To the extent there is conflicting evidence regarding
the alleged coercion, the reviewing court must accept the version most favorable to the
People, to the extent supported by the record; however, if the facts are not in dispute, it

                                               7
will review the record de novo. (See, e.g., People v. Badgett, supra, 10 Cal.4th at pp.
352-354; People v. Anderson (1990) 52 Cal.3d 453, 470.)


       b. Proceedings below
       The court held a hearing to determine the admissibility of Arellano’s statements.
The court found Arellano’s statements to police were not coerced and were admissible.
The court also found that Arellano was not a “suggestible” witness, was “trying his best
to answer the questions,” and was “pretty smart actually.” The court based its ruling on
Arellano’s testimony at the hearing and the transcript of the police interview of Arellano.


       c. Analysis
       An examination of the factors listed in People v. Williams, supra, 16 Cal.4th at
p. 661 does not show coercion. Arellano was advised of his Miranda4 rights before the
police interview began. The interview was not lengthy. There is nothing about the
location of the interview which suggests that it impaired Arellano’s ability to give
voluntary answers. Arellano was only 19, but he was mature for his age. He was taking
care of his daughter and working. The court found that Arellano was “pretty smart
actually.” Arellano’s answers to questions during the interview and at the hearing
support this conclusion. Arellano was not injured, and gave no indication that he was
hungry or thirsty. In addition, the detectives repeatedly told Arellano that they only
wanted the truth. When Arellano provided information, the detectives tested him, asking
how he knew. They did not provide their own version of events for Arellano to adopt.
       Appellants claim the police used coercion in the form of threats of criminal
charges and implied promises of leniency. Appellant Guardado’s argument focuses on
Arellano’s testimony at the hearing while appellant Navarrete’s focuses on the interview
itself. Each joins the other’s contentions.




4
       Miranda v. Arizona (1966) 384 U.S. 436.
                                              8
       Appellant Guardado first points to the presence of Detective Ferreria at the hearing
as coercive. Trial counsel objected to the detective’s presence at the hearing on the
ground that it was coercive to have him there when the purpose of the hearing was to
determine whether he coerced Arellano. The trial court overruled the objection. Counsel
offered no authority to support his contention in the trial court and offers none on appeal.
Any witness who considers changing a previous statement can expect to be impeached on
this point, and the impeachment will frequently come from a person who heard the
previous statements. In this case, Detective Ferreria was the prosecution’s investigating
officer, and so there was nothing unusual or improper in his presence. His mere presence
was not coercive.
       Appellant Guardado next points to a series of questions and answers during cross-
examination of Arellano at the hearing to show that the detectives were threatening
Arellano with criminal charges in order to get him to cooperate. Defense counsel: “So
you felt very strongly motivated to cooperate with the police; correct?” Arellano:
“Yeah.” Defense counsel: “In fact didn’t the detective tell you many, many, many,
many times that you were gonna get thrown under the bus for this very crime?”
Arellano: “Yes.” Defense counsel: “And you believed him, didn’t you?” Arellano:
“Yes.” The transcript of the interview shows that the detective was telling Arellano that
other people were trying to throw him under the bus.
       Appellant Guardado claims, inaccurately, that Arellano testified “that he talked to
the police because he believed the Detective would make sure that he [would] go down
for the murder.” In fact, defense counsel asked, “You’ve already said how your – your
reason for talking to the detectives, despite having a lot of fear when talking to the police
about this, your reason was you thought that, in your mind, you could go down for the
murder yourself; correct?” Arellano agreed. As Arellano subsequently explained,
however, he believed he might be convicted of the murder “[b]ecause in the video, you
couldn’t tell who it was” and “[b]ecause other people were trying to say it was me in that
video.” Thus, the testimony quoted by appellant Guardado does not show that Arellano


                                              9
spoke with the detectives because he believed they would “make sure” he was convicted
of the murder. Arellano’s fear, if any, was of other people incriminating him.
       As appellants point out, the detective’s statements during the interview that others
had thrown Arellano under the bus were apparently a ruse. Appellant Navarrete contends
the ruse qualified as coercion.
       Ruses are permissible, as long as the ruse is not likely to produce an untrue
statement. (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280, citing inter alia Frazier
v. Cupp (1969) 394 U.S. 731, 739 [officer falsely told the suspect his accomplice had
been captured and had confessed].) Appellant Navarrete relies primarily on People v.
Lee (2002) 95 Cal.App.4th 772 to show that the ruse in this case was coercive. In Lee,
the police told the witness that he had been incriminated by a polygraph test, then
“threatened him with a murder charge unless he named the defendant.” (People v. Quiroz
(2013) 215 Cal.App.4th 65, 79.) “The vice in Lee was that the interrogation was ‘not
designed to produce the truth as [the witness] knew it but to support a version of events
the police had already decided upon.’” (Ibid.)5 Here, the detectives did not tell Arellano
that they believed he was guilty of the murder and did not tell him whom they wanted
him to incriminate or what they wanted him to say. Thus, their ruse was permissible.
       Appellant Guardado also points to questions by defense counsel about Arellano’s
daughter to show that the detectives threatened to separate appellant from his daughter if
he did not cooperate. Defense counsel asked, “And thinking about your daughter, you
felt almost desperate to tell the policeman what he wanted to hear; correct?” Arellano
agreed. Defense counsel continued, asking “Did he not even mention on many, many,
many times the detective brought up your daughter, your family?” Arellano agreed.
Defense counsel asked, “And that made you very, very, very scared; correct?” Arellano
agreed. Appellant Guardado contends Arellano was “horrified that he may not see his


5
       Similarly, in People v. McClary (1977) 20 Cal.3d 218, also relied upon by
appellant Navarrete, the police promised the defendant leniency if she changed her story
to match the facts represented by the police, and threatened to charge her with murder if
she did not. (Id. at pp. 224, 229.) That was not the situation here.
                                            10
young daughter again if he did not testify to Detective Ferreria’s liking.” Nothing in the
quoted questions or any other testimony shows Arellano believed he had to testify to the
detective’s liking or believed he would “never” see his daughter again.
       The transcript of the interview does reveal numerous mentions of Arellano’s
daughter. Generally, these references were made during a discussion about whether
Arellano wanted to get out of the gang life. Appellant Navarrete is correct that at one
point the detectives told Arellano he would be watched twenty-four hours a day seven
days a week and “when you end up buying dope somewhere, when you least expect it,
you’re going to get arrested and you’re never going to see your daughter again.” Even if
this is construed as a threat, it is a hollow one. Arellano would have nothing to worry
about as long as he followed the law, and it is extremely unlikely that such intensive
surveillance would last very long, assuming it ever started to begin with. Further, as
Arellano was no doubt aware, a conviction for drug possession does not carry a life
sentence, and would not result in Arellano never seeing his daughter again.
       Appellants’ reliance on two federal cases to show coercion in the detective’s
mention of Arellano’s daughter is misplaced. In United States v. Tingle (9th Cir. 1981)
658 F.2d 1332, the police officer’s statement to the suspect was similar to the one in this
case, but the suspect’s response was shaking and crying for ten minutes. (Id. at p. 1334.)
Thus, the suspect clearly took the threat as a real one, and her will was overborne.
Nothing similar occurred during Arellano’s interview. As the trial court found, the
statement was not “the kind of pressure where okay, just - - I’ll tell you anything you
want to know, just let me go home to my daughter.” In Lynumn v. Illinois (1963) 372
U.S. 528, the suspect “had no previous experience with the criminal law, and had no
reason not to believe that the police had ample power to carry out their threats.” (Id. at p.
534.) That was not Arellano’s situation. He had every reason to disbelieve the
detectives.
       Appellant Guardado also claims that since the interview took place after Arellano
was arrested for a crime committed with his brother, it “is highly probable that Detective
Ferreria offered favorable treatment if he were to testify against appellant.” It is not clear

                                             11
when the arrest with Arellano’s brother took place, but it does not appear to have been
the arrest that occurred on the same date as the interview. There is no evidence in the
record to suggest that detectives offered favorable treatment to Arellano on the arrest
with his brother. To the contrary, Arellano was asked if the detectives told him that he
would get “some sort of legal benefit in any criminal cases or any criminal actions that
you might be doing in exchange for this – in exchange for working with them?” Arellano
replied, “No.” When asked if he received any benefits at all from the police, he replied,
“I didn’t gain nothing. And I didn’t - - well basically, all I got was just a relocation.
That’s all I got. I didn’t get nothing out of it, or I didn’t get something to benefit out of
it.”
       Appellant Navarrete makes a similar claim to appellant Guardado’s, arguing that
the interview was coercive because Arellano was arrested just before the interview on a
drug charge, but the detectives told him during the interview that they were not interested
in the drug activity. Appellant claims that “implicit in this statement is a promise of
leniency” that Arellano would not be prosecuted for the drug offense if he cooperated.
The detectives’ statements show the opposite. Detective Ferreria said “[W]e’re not here
for dope.” Detective Kellum stated, “We don’t do dope” and “We’re not here for dope”
and “If he had a pound of dope, I – I could care less.” Detective Kellum also stated, “If
he’s selling, dealing, more power to him” and “Unless he’s dead or about to die, I don’t
care about what he’s doing.” Detective Kellum also told Arellano that if he was not
honest in his answers, he would “be [there] for four or five hours.” These statements
cannot reasonably be understood as promising to forgo drug charges only if appellant
agreed to cooperate.6
       Appellants have not met their burden of showing that Arellano’s statements to
police were coerced or involuntary. Arellano’s statements were properly admitted and did
not violate appellant’s federal constitutional rights to due process and a fair trial.

6
        Further, the detectives’ statement to Arellano that he would be watched 24/7 and
arrested the next time he bought drugs shows that they were not holding his current drug
arrest over his head.
                                              12
       2. Trial testimony
       Appellant Navarrete contends Arellano’s trial testimony was coerced and should
not have been admitted. In part, he contends the testimony was coerced because parts of
his coerced pre-trial statements were played in court. Since his claim that the pre-trial
statements were coerced has failed, this related contention fails as well. Appellant
Navarrete also contends Arellano’s testimony was coerced because he was “challenged”
at trial with his interview statements and placed in the “untenable position of having to
admit lying to the police or saying it was the truth” and because he was arrested as a
material witness when he refused to testify.7 He contends the admission of the testimony
violated his federal constitutional rights to due process and a fair trial.
       “A claim that a witness’s [trial] testimony is coerced . . . cannot prevail simply on
grounds that the testimony is the ‘fruit’ of some constitutional transgression against the
witness. Instead, the defendant must demonstrate how such misconduct, if any, has
directly impaired the free and voluntary nature of the anticipated testimony in the trial
itself.” (People v. Boyer, supra, 38 Cal.4th at p. 444.) “‘[D]efendant can prevail on his
suppression claim only if he can show that the trial testimony given by [the third party]
was involuntary at the time it was given.’ [Citation.]” (People v. Badgett, supra, 10
Cal.4th at p. 347.)
       Appellant Navarrete has cited no cases holding that arresting a reluctant witness
results in coerced testimony. We see no basis for holding that the lawful compulsion to
testify as a material witness can amount to unconstitutional coercion.8

7
       To the extent that appellant Guardado contends Arellano’s trial testimony was
coerced because he was receiving relocation payments, we do not agree. Appellant
Guardado contends that if Arellano failed to testify against appellants he would not get
any money. In fact, Arellano did attempt to avoid testifying, going so far as to leave
during a lunch break. He had to be arrested and ordered to return to court to complete his
testimony, demonstrating that he was not testifying to get money.
8
        We note that Arellano initially refused to testify out of fear of gang retaliation, not
fear of the police.
                                              13
       Appellant Navarrete has also failed to cite any cases holding that impeachment of
a witness with his or her prior statements results in coerced testimony. There is no basis
for holding, in effect, that requiring a witness to take an oath to tell the truth is coercive in
situations where the oath requires the witness to admit that he was not truthful in earlier
out of court statements.
       Importantly, Arellano’s trial testimony was subject to cross-examination and
impeachment. These tools, together with appellants’ knowledge of the circumstances of
Arellano’s police interview, enabled appellants to challenge the reliability of Arellano’s
testimony. (See People v. Douglas, supra, 50 Cal.3d at p. 503.) The jury was then able
to assess Arellano’s credibility and reliability. Appellant Navarrete’s claim fails. His
federal constitutional rights to due process and a fair trial were not violated.


       3. Evidence Code section 1230
       The trial court admitted appellant Guardado’s statement to Arellano that appellant
Guardado and appellant Navarrete “caught an F-18 slippin’” as a statement against penal
interest. (Evid. Code § 1230.) Appellant Navarrete contends the court erred, because
that portion of the statement which referred to appellant Navarrete’s involvement was not
“specifically disserving” to appellant Guardado’s penal interest, as required by Evidence
Code section 1230. He further contends the admission of the statement violated his
federal constitutional right to due process.


       a. Applicable law
       “Evidence Code section 1230 provides that the out-of-court declaration of an
unavailable witness may be admitted for its truth if the statement, when made, was
against the declarant’s penal interest.” (People v. Lucas (1995) 12 Cal.4th 415, 462.)
The proponent of such evidence “must show that the declarant is unavailable, that the
declaration was against the declarant’s penal interest when made and that the declaration
was sufficiently reliable to warrant admission despite its hearsay character.” (People v.
Duarte (2000) 24 Cal.4th 603, 610-611.)

                                               14
       The trial court’s ruling under Evidence Code section 1230 is reviewed for an
abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 154; People v. Gordon
(1990) 50 Cal.3d 1223, 1250-1253; People v. Arauz (2012) 210 Cal.App.4th 1394, 1400.)
The court’s ruling “will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
       In considering whether the declaration was sufficiently trustworthy, the court may
take into account the words used, the circumstances under which they were written, and
the declarant’s possible motivation and relationship to the defendant. (People v. Cudjo
(1993) 6 Cal.4th 585, 607.) In this context, the least reliable circumstance is one in
which the declarant has been arrested and tries to improve his situation by deflecting
responsibility onto others, while the most reliable circumstance is one in which the
statement is made between friends in a non-coercive setting. (People v. Greenberger
(1997) 58 Cal.App.4th 298, 334-335.)
       Here, appellant Guardado’s statement about his own involvement in the shooting
subjected him to the risk of criminal liability, as it amounted to an admission of murder.
Appellant Guardado’s statement also implicated appellant Navarrete, but the mere fact
that the hearsay declarant’s statement also implicated another does not automatically
render it unreliable or inadmissible. (People v. Tran (2013) 215 Cal.App.4th 1207, 1220;
see Arauz, supra, 210 Cal.App.4th at p. 1397 [“Where, as here, an accomplice inculpates
himself and his codefendant to a fellow inmate/informant, his statements, if trustworthy,
are admissible in the codefendant’s trial.”].) However, “[s]pecial attention must be paid
to any statements that tend to inculpate the nondeclarant. This is so because a statement’s
content is most reliable in that portion which inculpates the declarant. It is least reliable
in that portion which shifts responsibility.” (People v. Greenberger, supra, 58
Cal.App.4th at p. 335.)
       “Under the rule of [People v. Leach (1975) 15 Cal.3d 419], a hearsay statement
‘which is in part inculpatory and in part exculpatory (e.g., one which admits some
complicity but places the major responsibility on others) does not meet the test of

                                              15
trustworthiness and is thus inadmissible.’ [Citations.]” (People v. Duarte, supra, 24
Cal.4th at p. 612.)9 To be admissible as a statement against penal interest, the declarant’s
statement must be “truly self-inculpatory, rather than merely [an] attempt[ ] to shift blame
or curry favor.” (Williamson v. United States (1994) 512 U.S. 594, 603; see Duarte,
supra, at pp. 611-612.)
       Here, the circumstances all support the trial court’s finding of reliability.
Appellant Guardado made the statement to Arellano, who was either a gang member or
an associate. (People v. Tran, supra, 215 Cal.App.4th at p. 1220 [“the circumstance most
indicative of reliability is where an incriminating conversation occurs between friends in
a noncoercive setting that fosters uninhibited disclosures”].) Appellant Guardado made
the statement soon after the murder, to explain his warning to Arellano that he should be
on the alert for attacks by F-18 gang members. (See People v. Tran, supra, 215
Cal.App.4th at p. 1220 [“the timing and urgency of [declarant’s] conduct further support
the reliability of his statement”].)
       Appellant Navarrete contends appellant Guardado’s statement was not reliable
because it “spread the blame” to appellant Navarrete. The question is not whether the
declarant “spreads” blame, but whether he attempts to “shift” blame, that is, attempts to
make another look more guilty and the declarant less guilty. That appellant Guardado did
not do. Nothing in appellant Guardado’s mention of appellant Navarrete suggested that
appellant Navarrete was more to blame for the murder. The statement suggests equal
responsibility for the crime.
       Appellant Navarrete’s reliance on People v. Lawley, supra, 27 Cal.4th at p. 102 is
misplaced. In that case, the defense wished to offer the declarant’s statement that he


9
       In Leach, our Supreme Court stated that Evidence Code section 1230 does not
apply to “evidence of any statement or portion of a statement not itself specifically
disserving to the interests of the declarant. [Fn.]” (People v. Leach, supra, 15 Cal.3d at
pp. 441-442.) It is from this case that appellant Navarrete derives the “specifically
disserving” language that he uses throughout his argument. As the above-quoted excerpt
from Duarte shows, the Leach rule applies to statements in which the declarant attempts
to place “major responsibility” on someone else.
                                              16
committed the murder and was hired to do so by the Aryan Brotherhood. The court
found the identity of the entity which hired the declarant did not increase his culpability
and so was not disserving to the declarant. Here, the statement including appellant
Navarrete did have a tendency to be disserving to appellant Guardado, as it supported the
allegation that the killing was done for the benefit of a criminal gang within the meaning
of section 186.22. Appellant Guardado was a member of the Sur Trece gang and
appellant Navarrete was a member of an associated gang or clique, and the victim was a
member of a rival gang. Appellant Guardado’s statement showed that he committed the
crime with a fellow gang member, a fact which can satisfy one of the requirements of
section 186.22.
       The trial court did not abuse its discretion in finding that the statements were
admissible as a declaration against penal interest. (See People v. Arauz, supra, 210
Cal.App.4th at p. 1401.) There was no violation of appellant Navarrete’s federal
constitutional right to due process.


       4. Ineffective assistance of counsel
       In his interview with police, Canales stated that he was more afraid of appellant
Guardado than appellant Navarrete because he had seen appellant Guardado fight with
rivals. A recording of Canales’s statement was played at trial. Appellant Guardado
contends his trial counsel was ineffective in failing to request an instruction telling the
jury the evidence could not be considering as showing a bad character or criminal
disposition.
       Both the Sixth Amendment to the United States Constitution and article I, section
15 of the California Constitution guarantee defendant the right to the assistance of
counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
       Appellant has the burden of proving ineffective assistance of counsel. (People v.
Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show
that his counsel’s performance fell below an objective standard of reasonableness, and
that, but for counsel’s error, a different result would have been reasonably probable.

                                              17
(Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694; People v. Ledesma
(1987) 43 Cal.3d 171, 216-218.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at
p. 694.)
       When an appellant makes an ineffective assistance claim on appeal, we look to see
if the record contains any explanation for the challenged aspects of the representation. If
the record is silent, then the contention must be rejected “‘unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no satisfactory
explanation [citation].’” (People v. Haskett (1990) 52 Cal.3d 210, 248.)
       Here, the evidence of appellant Guardado’s fighting was introduced to explain
Canales’s fear of appellant Guardado, which in turn explained why Canales delayed
identifying appellant Guardado. Thus, the evidence was relevant. It was not particularly
inflammatory. A reasonable attorney could have concluded, as a tactical matter, that the
risk of a limiting instruction outweighed any benefit the instruction might provide. (See
People v. Hernandez (2004) 33 Cal.4th 1040, 1053-1054.)
       Since there could be a satisfactory explanation for counsel’s failure to request the
instruction, the ineffective assistance claim must be rejected on appeal. (People v.
Haskett, supra, 52 Cal.3d at p. 248; People v. Mendoza Tello (1997) 15 Cal.4th 264,
266.) Generally, ineffective assistance of counsel claims are more appropriately raised in
a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)




       5. Sufficiency of the evidence
       Appellant Guardado contends there is insufficient evidence to show that he aided
and abetted the murder, and so insufficient evidence to support the conviction.10 He also


10
       Appellant Guardado points out the jury found appellant Navarrete personally used
a weapon in the commission of the murder but found as to appellant Guardado only that a
principal was armed in the commission of the murder. He concludes, reasonably, that the
jury convicted him as an aider and abettor.
                                             18
contends there is insufficient evidence to support the finding that he premeditated and
deliberated. We do not agree.
       “In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate
a witness’s credibility. [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 210
[internal quotation marks omitted].)


       a. Aiding and abetting
       “‘All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission, . . . are
principals in any crime so committed.’” (People v. McCoy (2001) 25 Cal.4th 1111, 1116-
1117, quoting § 31.) Under a direct theory of aiding and abetting, the defendant must
know and share the perpetrator’s intent to be found liable. (Ibid.)
       “Whether a person has aided and abetted in the commission of a crime is a
question of fact, and on appeal all conflicts in the evidence and attendant reasonable
inferences are resolved in favor of the judgment. Among the factors which may be
considered in determining aiding and abetting are: presence at the crime scene,
companionship, and conduct before and after the offense.” (In re Juan G. (2003) 112
Cal.App.4th 1, 5.) Mere presence at a crime scene does not suffice to establish aiding
and abetting. (Ibid.)

                                             19
       Here, there was ample evidence that appellant Guardado acted in concert with
appellant Navarrete before, during and after the murder.
       Canales testified that the victim parked across the street from a Sur Trece hangout,
at a time when appellants and other Sur Trece members were present. He saw appellants
walk up to the victim’s car together and make a gang challenge just before the fatal
gunshot was fired.
       Medina saw two Hispanic males matching appellants’ descriptions approach the
victim’s car. The one wearing a striped shirt—identified by Canales as appellant
Guardado—knocked on the car’s window and made a Sur Trece gang sign at Melendez.
After the shooting, Medina saw the man in the striped shirt receive an object from the
other’s hand as they ran away.
       Gang expert de la Riva testified that the shooting was committed in typical gang
fashion because there was one gunman who was supported by a lookout. His testimony
also showed a gang-related motive for the shooting on the part of both defendants. The
victim was a member of a rival gang and was in Sur Trece’s territory. If a Sur Trece
member encountered such a situation, he would face penalties from his fellow gang
members if he failed to confront the rival.
       This evidence supports a reasonable inference that appellant Guardado assisted in
the murder by identifying himself and appellant Navarrete as Sur Trece, serving as a
lookout, and taking some object related to the murder, possibly the murder weapon, from
appellant Navarrete after the shooting. Further, in appellant Guardado’s statement to
Arellano, appellant Guardado took joint responsibility for the killing: “‘We caught a F18
[Fake-18] slipping’”; “we had um, just caught an 18th Streeter slippin’ and yo and what
was gonna happen”; “me and Danny caught some enemy slippin’ and you already know
what’s gonna happen, so lay low until everythings [sic] calms down” Appellant
Guardado’s statement supports an inference of shared intent to kill. In contrast, there is
no evidence in the record which supports a reasonable inference that appellant Guardado
was surprised or shocked by appellant Navarrete’s action in shooting Melendez.


                                              20
       b. Premeditation and deliberation
       First degree murder requires a finding that the defendant acted willfully,
deliberately and with premeditation. (§ 189.) “Deliberation” refers to the careful
weighing of considerations in forming a course of action and “premeditation” means
thought over in advance. (People v. Solomon (2010) 49 Cal.4th 792, 812; People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Premeditation and deliberation can occur in a
brief interval. “The test is not time, but reflection. ‘Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived at quickly.’”’
[Citation.]” (People v. Solomon, supra, 49 Cal.4th at p. 812.) Deliberation and
premeditation may occur within a very short time period, however. (Ibid.) “The test is
not time, but reflection.” (People v. Bloyd (1987) 43 Cal.3d 333, 348.)
       There are three common categories of evidence bearing on the existence of the
premeditation and deliberation in the context of murder—planning activity, motive, and
the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson
(1968) 70 Cal.2d 15, 25–27.) These “factors, while helpful for purposes of review, are
not a sine qua non to finding first degree premeditated murder, nor are they exclusive.”
(People v. Perez, supra, 2 Cal.4th at p. 1125.) Their purpose “‘was to aid reviewing
courts in assessing whether the evidence is supportive of an inference that the killing was
the result of preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’” (People v. Solomon, supra, 49 Cal.4th at p. 812.)
       Here, appellants were at a gang hang-out with fellow gang members when the
victim parked his car across the street from them. They noticed that the victim was
unprepared (“slippin’”). They walked up to the victim with a loaded gun and made a
gang challenge before shooting. This supports a reasonable inference of planning. The
gang expert’s testimony provided evidence of a strong motive for the shooting. The
manner of shooting, a close range gunshot to the head of the unarmed victim, shows
preexisting reflection. Thus, there is more than sufficient evidence to support the jury’s
finding of premeditation and deliberation.


                                             21
       6. Cumulative error
       Appellants contend that even if the errors in this case were not prejudicial when
considered individually, they were prejudicial when considered cumulatively. We have
found no error, so there is no cumulative effect.


       7. Gang enhancement
       Appellants contend the trial court erred in imposing a ten year enhancement
pursuant to section 186.22, subdivision (b)(1)(C), then staying it pursuant to section 654.
They contend, correctly, that this enhancement does not apply when a defendant is
sentenced to an indeterminate term. Appellants further contend the enhancement should
be stricken.
       “Where, as here, a defendant is sentenced to an indeterminate life term for
attempted murder, the 15 year-parole eligibility provision of section 186.22, subdivision
(b)(5) applies rather than the 10-year gang enhancement.” (People v. Arauz, supra, 210
Cal.App.4th at pp. 1404-1405.) We will order the abstract of judgment corrected
accordingly.




                                            22
                                           Disposition
       The ten year enhancement term imposed pursuant to section 186.22, subdivision
(b)(1)(C) and then stayed pursuant to section 654 is ordered stricken. It is to be replaced
with a minimum parole eligibility period of 15 years pursuant to section 186.22,
subdivision (b)(5). The judgment of conviction is affirmed in all other respects.


                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                     MINK, J.*


We concur:



MOSK, ACTING P. J.



KRIEGLER, J.




*
      Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                            23
