Filed 3/18/16 P. v. Padilla CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139259
v.
RONNIE PADILLA,                                                      (Alameda County
                                                                     Super. Ct. No. CH-44529A)
         Defendant and Appellant.


         Defendant Ronnie Padilla was convicted by a jury of 13 crimes arising out of four
different incidents that took place in 2005, 2006, and 2008. He asserts three errors on
appeal. First, he contends that the trial court committed prejudicial instructional error on
a charge of kidnapping for ransom (count 11). Second, he contends there was insufficient
evidence to support his conviction on that charge. Third, he contends that he received
ineffective assistance of counsel due to his counsel’s failure to seek severance of non-
gang related charges from gang-related charges and to oppose consolidation of a
custodial weapon possession charge. We reject his ineffective assistance of counsel
claim, but we agree that the trial court committed instructional error on count 11, an error
that was prejudicial and requires reversal on that count. We therefore affirm in part and
reverse in part.
                                        FACTUAL BACKGROUND
         November 12, 2005 Incident (Counts 3 through 5)
         On an afternoon in late October or early November 2005, Apolinar Mendoza
parked his red Camaro in front of a taqueria on International Boulevard in Oakland.


                                                             1
Before he could get out, another car—a red Pontiac—pulled up next to him. Defendant,
whom Mendoza had never seen before, got out of the driver’s seat and tried multiple
times to open the door to Mendoza’s car, saying he wanted to hit or kill Mendoza.
Defendant was also pounding on the window. After 10 to 15 minutes, defendant got back
in the red Pontiac and drove away. Mendoza had no idea what the incident was about.
He asked some people at the scene about the man who had gotten out of the other car,
and he then drove home. At trial, Mendoza identified defendant as the assailant.
       On the afternoon of November 12, 2005, Mendoza was driving southbound on
International Boulevard on his way home. He noticed the same red Pontiac following
him. Feeling fearful, he sped up to try to get away, but the Pontiac followed him. In his
rearview mirror, Mendoza could see defendant driving the car with one or two
passengers. Mendoza turned left on Fruitvale Avenue and made the first right on Farnam
Street. The Pontiac continued past Fruitvale Avenue, taking the next left on 34th Avenue
and the first left on Farnam Street so that it was headed towards Mendoza. With
defendant still driving, one of the passengers began shooting at Mendoza, firing seven or
eight times. Mendoza’s car was struck by gunfire in the passenger seat, the hood, the
driver’s side window, the windshield, and the taillight.
       Mendoza drove home and called the police. He told the responding officer that he
believed the driver of the Pontiac was named Ronnie. He also said that the car had tinted
side windows.
       At trial, Mendoza initially testified that he could not remember if the Pontiac he
saw that day had tinted windows. He testified a few minutes later that he believed the
windows of the Pontiac were black, but he did not remember if the driver’s side window
was black or tinted. He also testified when he told the officer on the day of the incident
that the Pontiac’s windows were tinted, he was referring only to the Pontiac’s two back
windows.
       Lillian Cabrera witnessed the incident. She was in her car at a stop sign on 34th
Avenue. She saw a red car (Mendoza’s car) turning right off Farnam Street onto 34th
Avenue and a second red car with only the driver and one passenger heading towards her


                                             2
on 34th Avenue. As Mendoza’s car was turning, the second car turned left in front of her
onto Farnam Street, and someone in that car started shooting at Mendoza’s car. Mendoza
continued to make a right turn onto 34th Avenue and drove down the street in front of
Cabrera. The shooter’s car continued on Farnam Street towards Fruitvale Avenue.
Cabrera called 911, related what she had seen, described both cars as red Camaros, and
provided the license plate number for the victim’s car.
       Oakland Police Sergeant Drennon Lindsey, who worked as an investigator in the
robbery and gang sections, was assigned to investigate the shooting. The police report
contained a license plate number for the suspect vehicle. A search of the plate revealed
that the registered owner of the car (a red Pontiac Grand Am) had the same address as
defendant.
       On February 15, 2006, Sergeant Lindsey showed Mendoza three separate
photograph lineups: one with the photograph of the registered owner of the Pontiac, one
with a suspect identified in an anonymous tip, and one with a photograph of defendant.
Mendoza identified defendant as the driver of the car that chased him.
       December 31, 2005 Incident (Counts 6 through 12)
       On the afternoon of December 31, 2005, friends Edgar Acosta, Henry Bueso,1
Javier Serrano, and Angel Duran were out together in Oakland. Serrano was driving
Bueso’s car (a green Ford Taurus), with Bueso in the front passenger seat and Acosta and
Duran in the backseat. At trial, Acosta and Bueso testified that they had no guns or other
weapons in the car.
       As they were stopped at a stoplight, a blue car with three people in it pulled up
next to them, and the occupants threw gang signs at them—three fingers representing a
13—and said the name South Side Locos. Acosta noticed that defendant, whom he had
previously seen at Bueso’s house, was in the car.2 He pointed defendant out to Bueso,

       1
        Bueso testified at trial that his name is Henry Eucdea, and that Bueso is his
“second last name.” For consistency with the briefing, we shall refer to him as Bueso.
       2
       Acosta testified that defendant was in the backseat behind the driver, while
Duran and Bueso both placed defendant in the driver’s seat.

                                             3
who became nervous. Bueso had heard defendant was looking for him because his
girlfriend, Jennifer, was the stepdaughter of defendant’s brother, and defendant’s brother
did not want Bueso dating Jennifer.
       Defendant got out of the car holding a gun down at his side and walked around the
Taurus looking for Bueso. Bueso yelled, “Let’s go, let’s go, let’s go. Ronnie is going to
kill me. Ronnie is going to kill me,” and Serrano sped away. Defendant got back into
the blue car and started following them. As the blue car was chasing them, defendant
fired several shots at them, as did another occupant of the car.
       After a 15-minute pursuit, the blue car bumped the Taurus, causing Serrano to lose
control of the car, which hit a curb, blew out a tire, and crashed. Bueso, Serrano, and
Duran all got out and fled, but Acosta was unable to get away before defendant walked
up with the gun in his hand and told him not to move or he would shoot. As Acosta
leaned against the car, defendant pointed the gun at him and pulled the trigger Although
Acosta heard a click, no bullet fired because the gun was out of ammunition. Defendant
and his two companions forced Acosta into the backseat of their car, defendant hitting
him to get him into the car. Defendant sat in the backseat with Acosta and told him to lie
down and keep his eyes closed. Acosta heard defendant call someone and say that he
needed another gun because his was out of ammunition.
       They left the crash scene and drove to another location, where defendant
exchanged his gun for a new one with ammunition. As they were driving, defendant was
demanding to know where Bueso lived, telling Acosta he should deliver Bueso to him.
Acosta refused to take defendant to Bueso, and defendant told him he was going to die.
Defendant repeatedly tried to get Acosta to call Bueso, but Acosta instead dialed other
numbers because he was “not a betrayer.” The whole time, Acosta believed he was going
to be killed.
       They drove to a location in the Oakland hills, defendant all the while pointing the
loaded gun at Acosta. When the car stopped, Acosta believed he was going to die.
Defendant was still demanding information about Bueso, but Acosta repeatedly told him



                                             4
he did not know where Bueso lived. Acosta in fact knew where Bueso lived, but he was
not going to tell defendant, even if it cost him his life.
       Defendant forced Acosta to give him his own telephone number, telling Acosta he
was going to call him so he, Acosta, would deliver Bueso to him. He also took a
photograph of Acosta with his cell phone, telling Acosta that if he came to court, he was
going to hurt Acosta’s family. While Acosta was still in the car, defendant took $220
from him.
       Ignoring his companions’ suggestion that he kill Acosta so he would not go to the
police, defendant told Acosta to get out of the car. Standing outside the car, defendant
put his arm around Acosta and told him to close his eyes. Acosta believed it was his last
day on earth. Instead, defendant told him he was going to let him live so he could give
him Bueso, instructing him to walk away without looking back lest defendant shoot him.
Acosta then walked home.
       Defendant contacted Acosta the following day and demanded to know where
Bueso was, threatening to harm his family if he would not tell him. Defendant contacted
him “many” times after that. Acosta also saw defendant walking near his house on
several occasions.
       Meanwhile, after having run away following the crash, Bueso, Duran, and Serrano
returned to the crash scene and reported to the police what had happened.
       Isaac Ruelas witnessed the immediate aftermath of the accident. He was driving
down 42nd Avenue towards Foothill when he heard a noise and saw two cars that had
just been involved in an accident on the opposite side of the traffic island from where he
was driving. According to Ruelas, a blue Dodge appeared to have hit a green Ford,
which “looked like something had T-boned it, hit the back of it and caused it to run into
the island.” Three men were running from the scene, all in different directions. None of
them appeared to have anything in his hands.
       Defendant and two others got out of the blue Dodge while it was still moving. It
continued to roll away, and they tried to stop it. At the same time, defendant, who was
standing in front of the green car, started flashing a ‘3’ sign, along with some other


                                               5
gestures. Ruelas’s view of defendant’s companions’ hands was obstructed, but their
mannerisms made it appear as if they had something in their hands.
        Defendant and another man then pulled a man out of the Ford. According to
Ruelas, he was “getting scuffed up”—“they hit him a couple of times before they put him
in the vehicle”—and “didn’t appear to be doing anything willingly.” After he was
thrown into the back of the blue car, two men got in the back with him, and another drove
off.
        Ruelas stopped and called 911. Five minutes later, police officers arrived and took
his statement. As he was there, the three men who had fled returned.
        Ruelas told the officer that the man who flashed the gang sign had a tattoo on the
right side of his neck. Ruelas acknowledged at trial that defendant did not have such a
tattoo, but that did not surprise him because “things were moving fast.” Ruelas denied
that he in fact had not seen anyone flash gang signs but had instead been told that by a
driver in a vehicle behind him.
        The investigation of the December 31, 2005 incident was assigned to Sergeant
Lindsey. On January 4, 2006, she showed Ruelas a series of photos. He identified
defendant as one of the men in the blue Dodge, and he again identified him in court.
        Acosta, Bueso, and Duran were also shown photo lineups and identified defendant
as one of the assailants.
        Defendant was arrested driving away from his home on January 19, 2006. A blue
Dodge Dynasty found at that location had damage consistent with the victims’ report that
the blue car had rammed the Taurus. There were also a number of guns, as well as drugs,
found at the house.
        Defendant was interviewed the day of his arrest. At the time of the interview,
defendant had a tattoo on his forehead that said “Killer” and another that said “13.” On
the back of his neck, he had a tattoo of the number “666.” He also had spider web tattoos
on his arms and elbows, which defendant indicated meant he had some sort of rank in the
gang.



                                             6
       Defendant told the police that his niece, Jennifer, was dating Bueso, and the
family—especially her father, Victor, whom defendant considered a brother—was having
a problem with Bueso. According to defendant, Bueso was disrespectful to the family.
About two weeks before the December 31 incident, Bueso called defendant and
threatened him. Defendant acknowledged that he was a Sureño gang member, and
claimed that Bueso was a Norteño.
       When asked about the December 31 incident, defendant claimed that when the car
he was in approached the Taurus, Bueso “thr[e]w up the ‘4,’ ” for Norte, so defendant
responded by “throwing ‘3’ ” for “Sureño, Southside, 13.” Then, as defendant put it,
Bueso took out his gun and “shoot me like five times, so I shoot back like ten times.”
Defendant and his “homies” followed the car and “hit the car hell of times” before it
came to stop and all four occupants ran. Defendant acknowledged that neither his car nor
anyone in it was hit by Bueso’s supposed shots.
       The jury heard testimony from Oakland Police Officer Eugene Guerrero, an expert
in the investigation of gang-related crime in Oakland. Officer Guerrero testified at length
about the Hispanic gangs active in Oakland: the Norteños, the Border Brothers, and the
South Side Locos (a subset of the Sureños). He described their origins, activities (which
often involved acts of violence), and rivalries. He also testified about defendant in
particular, telling the jury that defendant was an admitted South Side Locos member and
considered himself a shot caller who could tell his fellow gang members what acts of
violence to engage in.
       October 3, 2006 Jail Incident (Counts 1 and 2)
       Santa Rita Jail in Alameda County has numerous housing units, including one unit
numbered 21. Housing unit 21 is divided into six pods, A through F, and each pod has
upper and lower tiers comprised of cells accommodating two inmates. In 2006, the time
frame relevant here, members of two gangs—the Sureños and the Border Brothers—were
separated from the rest of the population because they were notoriously violent. D and E
pods housed Sureños, while other pods were for protective custody or had mixed
populations. The Sureño pods had a hierarchy where someone—the “shot caller”—gave


                                             7
the orders: “controls the Sureño pod,” “kind of collects information and delegates what
other inmates do in the pod.” The shot caller can do good things (“getting kitties for
people that come in”) and bad things (“telling somebody to take somebody out,” “cutting
him, killing him, removing him”). In 2006, defendant and codefendant Ismael Contreras
were the shot callers in D pod.
       On the evening of October 3, 2006, Alameda County Deputy Sheriff Jeffrey
Bennett was overseeing security in housing unit 21. At 7:30 p.m., he opened all of the
cells, except for those in the lower tier of D pod, for “pod time,” a time when the inmates
can come out of their individual cells into the pods to use the phone, shower, watch
television, and play games. After opening the cells, he noticed a large commotion in D
pod, which appeared to be several inmates cornering another inmate and striking him. He
left the tower to meet up with his partner, Deputy Sheriff Sean Poole, outside the pod.
       Bennett and Poole walked toward the D pod door. As the deputies approached,
the attackers dispersed, except for defendant, who remained behind and continued to
attack another inmate, Francisco Zamora, with his fists. Poole opened the door to the
pod, allowing Zamora, who was clutching his neck and had a large amount of blood on
his shirt, to run out of the pod and into the dining area.
       When Bennett and Poole entered the pod, defendant was walking through the pod
towards the cells. Poole ordered defendant to the ground, but he ignored the order and
continued walking towards cell 7. As defendant approached cell 7, two inmates—
Contreras (known by the nickname “Negro”) and Epifanio Quintero—could be seen
inside the cell frantically washing their hands. Defendant stopped outside cell 7, and the
deputies ordered all three inmates to the ground. Ignoring the order, defendant yelled
something to the effect of “Fuck you, mother fuckers” and started to advance on the
deputies. Contreras and Quintero also charged the deputies, who pepper sprayed all three
inmates. With the inmates subdued, Poole and Bennett retreated from the pod.
       Deputy Sheriff Sean Boyd and two trainees ran to housing unit 21, where they
found deputies Poole and Bennett waiting for backup by the D pod door. Boyd, Poole,
Bennett, and a number of other deputies then entered the pod. Defendant, Contreras and


                                               8
Quintero were in cell 7 (defendant’s and Quintero’s cell), where they were ultimately
detained. Inside the pod, there was a “makeshift weapon”—a rolled up playing card held
together with string with a razor blade protruding from the end—on the floor, and chairs
and clothing strewn around. Inside cell 1, the water in the toilet bowl was red. There
was also blood inside and outside cell 1, which appeared smeared as if someone had tried
to wipe it up. In a garbage can to the left of cells 6 and 7, there were five broken plastic
chair legs, one of which had been filed to a point. Two razors were found inside the
mattresses in cell 6, and two razor blades were found in one of the mattresses in cell 7.
There was also blood in front of and inside cells 6 and 7 and on clothing worn by
defendant and Contreras. The jury heard testimony that inmates at Santa Rita Jail take
jail-issued razors, dismantle them, and fashion the blade into a mini knife or slashing
instrument. In order to avoid injuring themselves with the blade, they make a handle
with various items. The blades are often flushed down the toilet after they are used in an
assault.
       Meanwhile, Deputy Sheriff Steven Kidwell had also responded to the call for
backup. When he arrived at D pod, he saw Zamora yelling for help with a large wound
on the side of his neck. Kidwell helped Zamora use his shirt to apply pressure to the
injury. He called for medical assistance and was talking to Zamora, who was coherent
and conversing with the deputy. Zamora lost consciousness and momentarily passed out,
but he opened his eyes again, remaining lucid for the remainder of the conversation.
Kidwell feared Zamora was going to die, so he asked who assaulted him. Zamora said
his name was “Negro.” Zamora told Kidwell his attackers were in cells 6 and 7 and he
would be able to identify photographs of them, so Zamora was shown the custody cards
for the inmates assigned to those two cells. When he saw the pictures of defendant and
Contreras, “[h]is eyes opened, large, wide. He kind of gasped back and looked at them
and shook” when he identified them as his attackers. Zamora was then transported to the
hospital.
       Zamora testified at trial that he was a founding member of South Side Locos, a
Sureño gang. They claimed the number 13 and the color blue. Border Brothers, a


                                              9
Norteño gang, was their Oakland rival. Zamora had multiple gang tattoos, including
“Sureño” and “SSL,” and when he went to prison in 2000 he had “13” tattooed on the left
side of his eye. He was imprisoned for four years, and after he was released, he tried to
change his ways but kept returning to the gang life. He had the “13” tattoo removed from
his face and the “SSL” tattoo removed from his arm.
       In 2006, Zamora and other Sureños had been arrested for possession of a firearm,
and he was jailed at Santa Rita, where he was housed in unit 21 with other Sureños and
assigned to cell 1 in D pod. When he arrived, he recognized Contreras from having seen
him at Santa Rita in 1999. He knew him by the nicknames “Nacho” and “Negro.”
Zamora also knew the mother of Contreras’s child, and their children had played
together. According to Zamora, when he arrived at Santa Rita Jail in 2006, Contreras
recognized him and gave him a “head shake, like, hey, how you doing.”
       At breakfast on the morning of October 3, Zamora saw defendant, who went by
the names “Killer” and “Terrorista.” He had previously seen defendant at a party and at a
flea market, where defendant gave him a “stare down . . . a mean mug.” That morning,
defendant gave Zamora the same “dirty look” he had given him at the flea market.
       After breakfast, Zamora left the jail for a full day in court, returning to the pod
around 7:00 p.m. Once back at D pod, he went straight to his cell and was talking to his
cellmate. Shortly after, the cells were opened for pod time. Zamora was standing with
his back to the cell door when he heard the door opening behind him. He glanced back to
see defendant and Contreras come into the cell. Zamora turned his attention back to his
cellmate, who suddenly said, “Trucha” (Spanish for “Watch out”). Zamora saw
Contreras approach from behind, reach over Zamora’s right shoulder, and slit the left side
of his throat with a blue razor. Zamora grabbed his neck, felt hot liquid coming out, and
saw a lot of blood. Defendant came towards him with a similar blue razor in his hand,
and Zamora felt slices on his back, neck, stomach, and right temple.
       Starting to feel dizzy, Zamora turned and began swinging his arm to defend
himself. He noticed the cell door start to shut, and he believed he would die if he did not
get out of the cell, so he shoved past defendant and Contreras and got out.


                                             10
       Once out of his cell, Zamora stumbled into the middle of the pod. Defendant and
Contreras followed him and continued to attack him by kicking and swinging at him,
with about six other inmates joining in. While he was being assaulted, inmates were
saying, “Sur trece puto,” which means “Sureño bitch.” They were also yelling, “I’m a
real Sureño.”
       Zamora made it to the intercom and was able to push the button. He was banging
on the door to exit the pod. When it finally opened, he made it through, fell to the
ground, and passed out. When he opened his eyes, he saw a deputy who was putting
pressure on his neck and telling him to stay calm because he was losing a lot of blood.
He started to pass out, but the deputy told him to focus on his child. Zamora thought he
was going to die at that moment. He was asked if he would be able to identify the
attackers, and when he said yes, he was shown cards of photographs. He identified
“Killer” and “Negro” as his attackers.
       Zamora was taken to the hospital, where he underwent surgery on a life-
threatening laceration to his neck and a laceration to his head. He also had numerous
other lacerations—including, in Zamora’s estimation, 30 slashes on his back—that did
not require sutures. According to his treating physician, the lacerations could have been
caused by any sharp object if enough pressure was applied.
        Zamora was interviewed on two separate occasions about the assault.
In the first interview, a few hours after he arrived at the hospital, he identified Killer and
Negro or Nacho as the attackers. He had been given painkillers when he arrived at the
hospital, but at the time of the interviews, he was lucid. At the second interview, six days
after the attack, he was shown several photographs. On one, he circled a photograph of
defendant and wrote, “This is Ronnie AKA Killer, Terrorist. He is the one that got me in
my right side of my head.” He also circled a photograph of Contreras and wrote, “This is
Nacho. He’s the one that got me in my neck.”
       Zamora acknowledged that he had been a gang member from 2000 to 2009.
During that time, he periodically attempted to leave the gang, but he kept returning. In
2000, he was convicted of misdemeanor battery and felony assault. In October 2006, he


                                              11
was convicted of felony weapon possession, the crime that resulted in his incarceration at
Santa Rita. In June 2010, he was convicted of a 2009 homicide. All of the convictions
were gang related.
       Alameda County Deputy Sheriff Colby Staysa testified that in October 2006,
defendant and Contreras were both Sureños, and that Zamora was a Sureño but had
attempted to distance himself from the gang. He further testified that Sureños oftentimes
kill members who attempt to drop out of the gang.
       Defendant’s Weapon Possession in Custody in 2008 (Count 13)
       On March 26, 2008, two deputy sheriffs searched defendant’s cell in the special
handling housing unit (for inmates who are to have no physical contact with other
inmates). Two items of contraband were found. One was a “shank,” fabricated from six
plastic bottles that had been sandwiched together, cut off at a sharp angle, and wrapped
with the cardboard tubing from a toilet paper roll. The other was a razor blade that had
been attached to the underside of a stool.
                           PROCEDURAL BACKGROUND
       A second amended information filed on June 29, 2011 charged defendant and
Contreras with attempted premeditated murder and assault with a deadly weapon (counts
1 and 2), arising out of the October 3, 2006 assault on Zamora. Both charges were
accompanied by allegations that each defendant personally inflicted great bodily injury
and committed the offense to promote a criminal street gang. Defendant was additionally
charged with assault with a firearm, shooting at an occupied motor vehicle, and
permitting another to shoot from a vehicle (counts 3 through 5), arising out of the
November 12, 2005 incident involving Mendoza; four counts of assault with a firearm
and one count each of shooting at an occupied motor vehicle, kidnapping for ransom, and
criminal threats (counts 6 through 12), arising out of the December 31, 2005 incident
involving Acosta and his friends and all accompanied by personal use of a firearm and
street gang enhancements; and custodial possession of a weapon (count 13), pertaining to
the shank recovered from defendant’s cell in 2008.



                                             12
       Evidence began on June 20, 2011 and was heard over the course of 10 days. The
jury received the case on July 19 and deliberated for less than three days before finding
defendant guilty as charged on all counts, except on count 10, on which it found him not
guilty of shooting at an occupied motor vehicle but guilty of the lesser included charge of
grossly discharging a firearm. It also found true all enhancements alleged.3
       On June 21, 2013, the trial court denied defendant’s motion for new trial and
sentenced him to an indeterminate term of 18 years to life for the attempted murder
offense and 20 years to life (consecutive) for the kidnapping for ransom offense, with a
consecutive term of 33 years and four months for the remaining offenses and
enhancements.
       Defendant filed a timely notice of appeal.
                                        DISCUSSION
       A. The Trial Court Committed Prejudicial Error When It Instructed the
          Jury on Kidnapping for Ransom
       Count 11 charged defendant with “KIDNAPPING FOR RANSOM, a violation of
section 209(a) of the PENAL CODE of California, in that on or about December 31,
2005, . . . [defendant] did unlawfully seize, confine, inveigle, entice, decoy, abduct,
conceal, kidnap, and carry away EDGAR ACOSTA with the intent to hold and detain,
and who did hold and detain the said EDGAR ACOSTA for ransom, reward, extortion,
and to exact from relatives and friends of said EDGAR ACOSTA money and other
valuable things, to wit: LOCATION OF ANOTHER VICTIM.” It has been said that
because Penal Code section 209, subdivision (a)4 “is phrased in the disjunctive, it
describes four different types of aggravated kidnapping: (1) for ransom; (2) for reward;
(3) to commit extortion; and (4) to exact from another person any money or valuable
thing.” (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696.)


       3
         The jury also found Contreras guilty on counts 1 and 2. He was sentenced to 18
years to life and appealed his convictions separately. (People v. Contreras (July 29,
2013, A135198) [nonpub.].)
       4
           All subsequent statutory references are to the Penal Code.

                                              13
       The trial court read the jury CALJIC No. 9.53 (the instruction on section 209,
subdivision (a)), as follows:
       “Defendant Ronnie Padilla is accused in Count 11 of having violated section 209,
subdivision (a) of the Penal Code, a crime.
       “Every person who seizes, abducts, kidnaps or carries away another person by any
means whatsoever with the specific intent to hold or detain that person for ransom,
reward, or to commit extortion or to exact from another any money or valuable thing, is
guilty of a violation of Penal Code section 209, a crime.
       “In order to prove this crime, each of the following elements must be proved:
       “1. A person was abducted or kidnapped or carried away;
       “2. The abduction, kidnapping or carrying away of the person was without that
person’s consent; and
       “3. The perpetrator of the abduction, kidnapping or carrying away had the specific
intent to commit extortion or to obtain something of value from another.” The instruction
then went on to define consent, an issue not in dispute here.
       Defendant contends this instruction was inadequate, because it failed to define
extortion, a technical term the trial court had a sua sponte duty to define. This error, he
argues, was prejudicial. The People offer no counterargument to defendant’s claim that
the instruction was inadequate, implicitly conceding the point. Indeed, this issue was
squarely addressed in People v. Hill (1983) 141 Cal.App.3d 661, where the court
generally observed, “It is well settled the trial court has no sua sponte duty to give
amplifying instructions in the absence of a request if the terms used in the instructions
given are ‘commonly understood by those familiar with the English language’; while it
does have such a duty where the term has a ‘technical meaning peculiar to the law.’
[Citation.]” (Id. at p. 668.) The court then considered whether a trial court is obligated to
give an amplifying instruction on the word “extortion” as used in section 209, subdivision
(a), holding that it is: “Ransom has no statutory definition. It appears in Penal Code
section 209 and in Harbors and Navigation Code section 817. . . . The word is commonly
understood by those familiar with the English language. . . . However, extortion is an


                                              14
offense defined in Penal Code section 518 and is the subject of extensive CALJIC
instructions (Nos. 14.70–14.79). While the word may be understood in a general sense,
extortion as used in section 209 has a technical meaning peculiar to the law. The court
should have instructed on the legal definition of extortion. [Citation.]”5 (People v. Hill,
supra, at p. 668.) It was thus error for the trial court here to fail to define the term
extortion.
       The question, then, is whether defendant was prejudiced by the instructional error.
According to him, he suffered prejudice under the state prejudice standard of People v.
Watson (1956) 46 Cal.2d 818 (whether there was a reasonable probability of a more
favorable result but for the trial court’s error) and the federal prejudice standard of
Chapman v. California (1967) 386 U.S. 18 (whether the error was harmless beyond a
reasonable doubt). He is correct.
       As noted, CALJIC No. 9.53 instructed the jury that in order to find defendant
guilty of violating section 209, subdivision (a), the prosecutor was required to prove that
“The perpetrator of the abduction, kidnapping or carrying away had the specific intent to
commit extortion or to obtain something of value from another.” Had the jury been
properly instructed, it would have been informed that extortion means “the obtaining of
property from another, with his consent, . . . induced by a wrongful use of force or
fear . . . .”6 (§ 518.) Thus, in order to prove kidnapping for purposes of extortion, the
prosecutor was required to prove that defendant kidnapped Acosta with the intent to
obtain property from him.7 Defendant contends there was no evidence he kidnapped

       5
         The bench note to the CALCRIM instruction on section 209, subdivision (a)
states: “ ‘Extortion’ is defined in Penal Code section 518. If the kidnapping was for
purposes of extortion, give one of the bracketed definitions of extortion on request.”
(CALCRIM No. 1202, emphasis added.) Curiously, for this proposition, it cites
People v. Hill, supra, 141 Cal.App.3d at p. 668, despite its holding that the court has a
sua sponte duty to define extortion.
       6
       There was no suggestion defendant kidnapped Acosta for purposes of obtaining a
ransom or reward.
       7
        Although the language in section 518 states “property from another”—
suggesting an intent to obtain property from someone other than the victim of the

                                              15
Acosta in order to obtain property from him, so if the jury had been properly instructed, it
would have acquitted him on count 11. We agree.
       People v. Kozlowski (2002) 96 Cal.App.4th 853 (Kozlowski) offers the most
instructive analysis of what constitutes property for purposes of extortion. In that case,
defendants were convicted of two counts of kidnapping for purposes of extortion (among
numerous other charges) based on evidence they kidnapped two girls, obtained their
personal identification numbers (PIN) for their ATM cards at gun- and knife-point, and
withdrew money from one victim’s bank account using her ATM card. (Id. at pp. 856–
858.) They challenged their convictions on multiple grounds, including that as a matter
of law a PIN is not property that may be extorted. (Id. at pp. 856, 864.)
       Noting that this was a question of first impression, the court began its analysis
with a series of general concepts, the first being that the Penal Code’s definition of
property did not exclude a PIN, because “property” is defined as including “real and
personal property,” and “personal property” as including, but not being expressly limited
to, “money, goods, chattels, things in action, and evidences of debt.” (Kozlowski, supra,
96 Cal.App.4th at p. 865, quoting § 7, subds. (10), (12).) It also recognized that as used
in California’s extortion statute, the “term ‘property’ . . . should be broadly interpreted.”
(Ibid., citing 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against
Property, § 104, p. 137; see also Kozlowski, at p. 866 [“The term is all-embracing,
including every intangible benefit and prerogative susceptible of possession or
disposition.”].) Further, according to the court, the crime of extortion is related to the
offense of robbery such that cases involving robbery and other larceny offenses were
instructive. As such, it noted that “[c]ases and statutes define the term ‘property’ in the
context of theft-based offenses as the exclusive right to use or possess a thing or the
exclusive ownership of a thing.” (Ibid.)

extortion—courts have held that “[t]he crime of extortion (Pen. Code, § 518) does not
require that the fruits of the extortion be obtained from a third party.” (People v.
Ibrahim, supra, 19 Cal.App.4th at p. 1696; but see People v. Macinnes (1973)
30 Cal.App.3d 838 [suggesting that kidnapping for purposes of extortion requires proof
that the kidnapper sought to obtain property from someone other than the victim].)

                                              16
       The court also looked to People v. Kwok (1998) 63 Cal.App.4th 1236 (Kwok) for
guidance. (Kozlowski, supra, 96 Cal.App.4th at p. 868.) Kwok involved a residential
burglary where defendant entered the victim’s garage, removed a lock to the door
between the garage and the house, took it to a locksmith to have a key made, returned the
lock to its rightful place, and later used the key to enter the house and assault the victim.
(Id. at pp. 1240–1245.) On appeal, defendant argued there was insufficient evidence of
an intent to commit a theft or felony at the time of entry because he had no intent to
permanently deprive his victim of her lock, and making and retaining an unauthorized
key did not constitute theft. (Id. at pp. 1248–1249.) The Court of Appeal disagreed,
reasoning that the key was property, and defendant’s unauthorized possession of the key
deprived the victim of something valuable: her right to exclusive access to her home.
(Id. at p. 1251.)
       With these principles in mind, the Kozlowski court concluded that a PIN is
property for purposes of extortion. It reasoned as follows: “We may take judicial notice
of the common knowledge that a PIN code is more valuable if not disclosed to others—
or, put another way, if it is exclusively possessed. [Citation.] In like manner, the means
to bank account access is an intangible benefit susceptible of possession. [Citation.]
Thus, it may reasonably be said that a PIN code is property because it implies the right to
use that access code—and to access the funds in the related bank account by means of
that code. [Citation.] Operating as it does as a means of account access, a PIN code can
be characterized as intangible property. [Citation.]” (Kozlowski, supra, 96 Cal.App.4th
at p. 867.) Put another way, when defendants compelled their victims to reveal their
PINs, “that knowledge destroyed the intangible benefit of being able to control access to
the bank accounts. The intangible property taken—the PIN codes—were the means to
obtain the more tangible property—the bank funds—contained in those accounts.” (Id. at
p. 869.) In light of this, the court concluded that a PIN constitutes property for purposes
of kidnapping for extortion. (Ibid.)
       More recently, in People v. Fisher (2013) 216 Cal.App.4th 212, defendant
challenged his conviction for delivering a letter with intent to extort money or other


                                              17
property in violation of section 523. The evidence established that defendant had
delivered to a prospective employer a letter demanding minimum wage for a job
accompanied by a threat that if not given the job he would show up at the company
“armed” with a piece of sandpaper (similar to what he had used on a prior occasion to
sand paint off a car, leading to a vandalism conviction). (Fisher, supra, 216 Cal.App.4th
at pp. 214–215.) The Court of Appeal rejected defendant’s argument that there was
insufficient evidence he delivered a letter with intent to extort because his demand for a
job was not a demand for money or property. After discussing Kozlowski and Kwok (and
a New York case, People v. Spatarella (1974) 34 N.Y.2d 157), the court explained,
“Here, defendant did not apply for a job in the normal course and allow the employer to
evaluate his application when a job became available. Defendant demanded to be
employed by the business owner or face vandalism to vehicles at the business.
Defendant’s threat to be employed or subject the business to vandalism was a demand for
part of the employer’s business, i.e., part of the intangible benefit and prerogative of
being able to control whom to employ in one’s business.” (Fisher, supra, at pp. 218–
219.) It then concluded that “property for purposes of the extortion statute includes a
business owner’s right to determine whom to employ,” and thus upheld defendant’s
conviction. (Ibid.)
       These cases all recognize that property for purposes of extortion need not be a
tangible item; they upheld convictions where defendants wrongfully obtained (or sought
to obtain) intangible property. But, significantly for our purposes, they also recognized
that fundamental to the concept of property is the victim’s right to exclusively possess the
property. Here, the evidence established that defendant kidnapped Acosta for purposes of
obtaining information regarding Bueso’s whereabouts. It cannot be said that Acosta had
the right to exclusive use or possession of that information. We thus conclude that under
the circumstances here, information regarding another’s whereabouts does not constitute
property within the meaning of kidnapping for purposes of ransom. This, in turn, leads
us to the conclusion that had the jury been properly instructed, it would have found
defendant not guilty of aggravated kidnapping.


                                             18
       The People acknowledge that the term “property” in the context of theft-based
offenses requires the exclusive right to use or possess a thing or the exclusive ownership
of a thing having some intrinsic value. They then make this puzzling argument:
“Contrary to appellant’s assertion, ‘exclusive,’ used in this context, means exclusive to
the rest of the world, including appellant. It does not mean that a person is necessarily
the only one who has a right to use or possess the ‘thing.’ ” This curious contention
aside, the People also submit that defendant “forcing Acosta to use his cell phone and
information stored in the phone, constituted the taking of intangible property, for the
purpose of obtaining tangible property, Bueso’s person and possibly his life.” We fail to
see how this theory fits into the concepts set forth in Kozlowski, Kwok, and Fisher. As
explained above, information regarding someone’s whereabouts does not fit into the
concept of intangible property. And the People provide no support for their theory that
“Bueso’s person and possibly his life” are tangible property.
       Finally, the People contend that even if information regarding Bueso’s
whereabouts did not constitute property for purposes of extortion, defendant was still not
prejudiced by the lack of instruction defining “extortion” because there was substantial
evidence that defendant kidnapped Acosta “to exact from another person any money or
valuable thing,” the fourth type of aggravated kidnapping identified in People v. Ibrahim,
supra, 19 Cal.App.4th at p. 1696. As the People would have it, “The evidence here also
shows that appellant kidnapped Acosta to exact from another, Bueso, a ‘valuable thing;’
his person and his life. Such evidence clearly falls under the fourth category of the
aggravated kidnapping statute.” They cite no authority, however, supporting their
creative suggestion that taking Bueso’s “person” or “life”—e.g., murdering him—is
exacting a “valuable thing” from him within the meaning of section 209, subdivision (a).
We further note that the information alleged the “valuable thing” to be the “LOCATION
OF ANOTHER VICTIM” (presumably, Bueso), which defendant allegedly sought to
“exact from relatives and friends of said EDGAR ACOSTA . . . .” No evidence
supported this allegation.



                                             19
       In light of the foregoing, we cannot say that the trial court’s failure to define
“extortion” for the jury was harmless error. Reversal on count 11 is thus required.
       B. Defendant Did Not Receive Ineffective Assistance of Counsel as a Result
          of His Counsel’s Failure to Move for Severance of the Non-Gang Charges
          from the Gang Charges and to Oppose Consolidation of the Custodial
          Weapon Possession Charge
       1.   Background
       In early 2006, defendant was charged with five crimes arising out of the
December 31, 2005 incident involving Acosta and his friends. In March of that year, the
district attorney sought to amend the complaint to add three charges arising out of the
November 12, 2005 incident involving Mendoza. Over defendant’s demurrer and
objection, the court granted the motion.
       On July 7, 2006, following a preliminary hearing, the district attorney filed an
information charging defendant with five counts of assault with a firearm, and one count
each of shooting at an occupied motor vehicle, permitting another to shoot from a
vehicle, kidnapping for ransom, and criminal threats. The first three charges arose out of
the November 12 incident, the remaining six out of the December 31 incident. Only the
charges arising out of the December 31 incident were accompanied by criminal street
gang allegations.
       A complaint filed on October 18, 2006 charged defendant and Contreras with
attempted murder and assault by means likely to produce great bodily injury, both
charges arising out of the assault on Zamora and both accompanied by gang allegations.
An information asserting the same charges followed on March 25, 2008.
       On May 7, 2008, the district attorney moved to consolidate the charges arising out
of the assault on Zamora with the previously joined charges against defendant arising out
of the November 12 and December 31, 2005 incidents. Counsel for codefendant
Contreras opposed the motion, but counsel for defendant did not, submitting on the
motion instead. The trial court granted the motion.
       On March 27, 2009, the district attorney filed an information charging defendant
with custodial possession of a weapon. No gang enhancements were alleged. In May,


                                              20
the district attorney moved to consolidate this charge with the other, previously
consolidated charges. Defendant’s counsel did not file written opposition to the motion.
At the July 24, 2009 hearing on the motion, the trial court asked defendant’s counsel if he
wanted to be heard. Counsel replied, “No, your Honor. I spoke with my client. I don’t
think he has any objection.” The trial court granted the motion.
       On May 31, 2011, Contreras filed a motion to sever the October 3, 2006 charges
(the assault on Zamora) from all other charges. Defendant’s counsel did not join in the
motion on defendant’s behalf, or bring his own motion to sever.8 The trial court denied
Contreras’s motion.
       Defendant now contends his counsel provided ineffective assistance by failing to
move for severance of the non-gang related charges (the November 12, 2005 incident)
from the gang related charges (the December 31, 2005 and October 3, 2006 incidents)
and for failing to oppose the prosecutor’s motion to join the 2008 custodial weapon
possession charge. Defendant’s contentions lack merit.
       2. The Law Governing Ineffective Assistance of Counsel Claims and
          Consolidation of Charges
       In People v. Mackey (2015) 233 Cal.App.4th 32, 119, we recently summarized the
well-established standard for a successful ineffective assistance of counsel claim: “A
defendant claiming ineffective assistance of counsel must demonstrate both deficient
performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687, 691–692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216–218.) On the
first prong he must show that ‘counsel’s representation fell below an objective standard
of reasonableness . . . [¶] . . . under prevailing professional norms.’ (Strickland, supra, at
p. 688.) And under the second, he must show that in the absence of the error it is
reasonably probable that a result more favorable to him would have been obtained. A
reasonable probability is ‘a probability sufficient to undermine confidence in the

       8
        Post-verdict, defendant brought a motion for new trial. At the hearing on the
motion, the trial court stated that defendant’s counsel had orally joined in Contreras’s
motion to sever. Nothing in the reporter’s transcript of the June 7, 2011 hearing on
Contreras’s severance motion suggests such a joinder.

                                              21
outcome.’ (Id. at p. 694.)” Where defendant fails to show prejudice, we may reject a
claim of ineffective assistance of counsel without reaching the issue of deficient
performance. (Id. at p. 697.)
        Penal Code section 954 provides for the consolidation of charges under specific
circumstances spelled out therein: “An accusatory pleading may charge two or more
different offenses connected together in their commission, . . . [or] different offenses of
the same class of crimes or offenses, under separate counts . . . [p]rovided, that the
court . . . in the interests of justice and for good cause shown, may in its discretion order
that the different offenses or counts . . . be tried separately . . . .” (See also People v.
Koontz (2002) 27 Cal.4th 1041, 1074 [“An accusatory pleading may charge two or more
different offenses connected together in their commission, or two or more different
offenses of the same class of crimes. (§ 954.) Offenses falling within this description,
but charged in separate pleadings, may be consolidated for trial in order to promote
judicial efficiency . . . .”].)
        3. Defendant Cannot Demonstrate Prejudice
        We need not address the first prong of defendant’s ineffective assistance of
counsel claim—e.g., whether defendant’s counsel should have sought to have the non-
gang and weapon possession charges tried separately and whether such an effort would
have been successful—because defendant has not demonstrated prejudice. (Strickland,
supra, 466 U.S. at pp. 687–691.) In other words, even assuming without deciding that
defendant’s counsel’s conduct in failing to oppose joinder fell below an objective
standard of reasonableness, and further assuming that the trial court abused its discretion
in granting the prosecution’s consolidation motions (and denying Contreras’s severance
motion), defendant would still not prevail on his ineffective assistance of counsel claim
because he has not demonstrated a reasonable probability of a more favorable result had
the charges been tried separately. This is so because each set of charges, standing alone,
was supported by overwhelming evidence.
        Turning first to the trial of the non-gang charges (the November 12, 2005 incident)
with the gang charges (the December 31, 2005 and October 3, 2006 incidents), defendant


                                               22
contends “the prosecutor placed the November 12, 2005 charges, although not charged as
gang crimes, squarely within the context of a nightmarish, dystopian gang world.” As
defendant would have it, the prosecutor’s opening statement described “the dark
underworld of gangs” in which defendant and Contreras existed. He told the jury that
defendant was a long-time and high-ranking South Side Locos member, had the gang
monikers “Killer” and “Terrorista,” and was “a drug supplier to the East Oakland
Sureños.” He told the jury about the violence committed by gang members, who were
“all about fear and intimidation.” And, despite that the November 12, 2005 charges were
not charged with gang enhancements, the prosecutor described them as gang charges
during the opening statement, treated them as such throughout the trial, and argued in
closing that although they were not charged as gang charges, “we certainly could have
made that argument.” This, according to defendant, “infuse[d] the November 12 charges
with a gang taint.” Further, according to defendant, had the non-gang charges been tried
separately, they would not have been infused with “all of the graphic and disturbing
substantive (i.e., non-gang) evidence regarding the December 31, 2005 and October 3,
2006 incidents.” But had counts 3 through 5 been tried alone, there was abundant
evidence of defendant’s guilt, such that it cannot be said that a more favorable result was
reasonably probable.
       Counts 3 through 5 charged defendant with assault with a firearm,9 shooting at an
occupied vehicle,10 and permitting another to shoot from a vehicle,11 respectively.12

       9
         Count 3, assault with a firearm (§ 245, subd. (a)(2)), required the prosecutor to
prove that defendant assaulted a person and that the assault was committed with a
firearm.
       10
          Count 4, shooting at an occupied vehicle (§ 246), occurs when a person
willfully, unlawfully, and maliciously discharges a firearm at an occupied vehicle.
       11
          Count 5, permitting another to discharge a firearm from the vehicle (§ 12034(b))
consists of the following elements: one, a person within a motor vehicle other than the
owner or driver discharged a firearm; and two, the driver of the vehicle knowingly
permitted the other person to discharge the firearm.
       12
         The prosecutor’s theory on counts 3 and 4 was that defendant aided and abetted
the shooter through his driving conduct.

                                             23
Mendoza’s testimony alone was enough to convict defendant on those charges. He
testified that the car that chased him on November 12 was the same one he encountered
on International Boulevard in the earlier incident. He got a look at defendant in the
earlier incident, and on November 12, he saw the same person driving the Pontiac. At
trial, he identified defendant as the driver. He told the police that the driver’s name might
be Ronnie. Both Mendoza and Cabrera testified that a passenger in the car fired upon
Mendoza’s car. The police report contained the suspect car’s license plate number, and
the plate was registered to an individual with the same address as defendant. And,
ultimately, defendant’s identity as the driver in the November 12 incident was not even in
dispute, because defense counsel conceded defendant was the driver. In light of this
evidence, we are unpersuaded by defendant’s claim of “a reasonable probability that, if
there had been a separate trial on the November 12, 2005 incident charges, [defendant’s]
trial counsel—unburdened by the voluminous, blinding and prejudicial prosecution gang
evidence—would have more effectively defended those charges such that the jury would
have maintained a reasonable doubt about them.”
       Defendant also contends that joining the November 12, 2005 charges with the
December 31, 2005 charges compromised his ability to defend against the December 31,
2005 charges. This is so, he reasons, because by allowing the prosecutor to prosecute the
November 12 charges as if they were gang-related, and thus lacking in a personal
motivation, the jury was likely to infer that there was a lack of personal motivation, and
thus a gang motivation, with respect to the December 31 charges. But no inference was
needed to prove that the December 31 incident had a gang connection, as there was actual
evidence that the incident was gang-related, including Acosta’s and Duran’s testimony
that occupants of the blue car threw gang signs at them and said “South Side Locos,”
Ruelas’s testimony that defendant flashed a ‘3’ sign, and defendant’s statement to the
police that that Bueso “thr[e]w up the ‘4’,” for Norte, so he responded by “throwing ‘3’ ”
for “Sureño, Southside, 13.”
       Defendant also contends that joining the November 12, 2005 charges with the
December 31, 2005 charges prejudiced his defense of the December 31, 2005 charges


                                             24
because it undermined his self-defense claim (that he shot at Bueso’s car only after its
occupants fired upon him first). This was so, he submits, because there was no claim of
self-defense with respect to the November 12 incident. Defendant’s self-serving
statement to the police that he fired at Bueso’s car only after Bueso fired at him lacked
any physical evidence (such as bullet holes in his car) corroborating this claim, and was,
quite simply, unconvincing in light of the testimony by the occupants of the car, who
denied it occurred. This would be true with or without evidence of the November 12
incident.
       Lastly, we turn to defendant’s claim that the failure of his counsel to oppose
joinder of the weapon possession charge (count 13) constituted ineffective assistance of
counsel. Again, we conclude that defendant has not demonstrated a reasonable
probability of a more favorable result had the charges been tried separately.
       Defendant contends that joinder of count 13 with the attempted murder charge
(count 1) highly prejudiced his defense on the attempted murder charge. He does not
deny he was one of the inmates who assaulted Zamora with his fists, but he argues there
was reasonable doubt whether he was one of the two assailants who slashed Zamora with
a razor blade. In fact, he contends that there was “strong evidentiary support” to the
contrary, in that Zamora was the only witness who placed a razor blade in his hand, with
all other witnesses testifying only that they saw defendant assaulting Zamora with his
hands. Defendant argues that Zamora had “tremendous credibility problems,” given his
“history of lying to people, including police officers”, his history as a gang member, and
his criminal history. Defendant also claims the reliability of Zamora’s testimony was
further weakened by the fact that he was dizzy and lapsing in and out of consciousness
when he identified defendant as one of the two attackers and by the absence of razor-like
slashes on his back consistent with what Zamora said defendant had done to his back.
Defendant then concludes, “In light of this state of the evidence regarding the October 3,
2006 incident, the definitive placement of a prohibited razor blade in appellant’s sole
possession, while housed in a one man cell, which was provided by the uncontested



                                            25
joinder of the 2008 custodial weapon possession, filled a crucial gap in the prosecution’s
count 1 premeditated and deliberated attempted murder case.”
       But disregarding the evidence on the weapon possession charge, there was
overwhelming evidence of defendant’s guilt on the attempted murder charge, from
Zamora’s unequivocal identification in the immediate aftermath of the assault of
defendant as one of his two attackers; his identification of defendant a few hours after the
assault; his identification six days later of a photo of defendant on which he wrote, “This
is Ronnie AKA Killer, Terrorist. He is the one that got me in my right side of my head”;
and his testimony at trial in which he described how defendant came into his cell with
Contreras, and sliced his back, neck, stomach, and forehead with a razor blade.
                                     DISPOSITION
       Defendant’s conviction on count 11 is reversed. In all other regards, the judgment
of conviction is affirmed.




                                            26
                                  _________________________
                                  Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A139259; People v. Padilla




                             27
