Filed 6/22/15 P. v. Mejia CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049509

                   v.                                                  (Super. Ct. No. 12ZF0158)

MATTHEW JAMES MEJIA,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
                   Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff
and Respondent.


                                             *               *               *
              Defendant Matthew James Mejia and six others were jointly indicted for
conspiracy to commit murder and participation in a criminal street gang. The indictment
alleged all seven individuals committed the conspiracy for the benefit of, at the direction
of, or in association with a criminal street gang. Defendant and three of the other
indictees were jointly tried. The jury returned guilty verdicts on both counts, plus a true
finding on the gang enhancement against each of them. The superior court sentenced
defendant to 25 years to life in state prison for conspiracy. It also imposed two years for
gang participation, but stayed the term. (Pen. Code, § 654.)
              On appeal, defendant challenges his conspiracy conviction, arguing the
only evidence supporting the charge was the uncorroborated testimony of an accomplice.
He also contends the evidence fails to support the jury’s true finding on the gang
enhancement. In addition, defendant claims the trial court committed instructional error
by (1) giving a legally incorrect version of CALCRIM No. 418 on the use of
coconspirators’ statements, (2) failing to clarify the phrase “in association with a[]
criminal street gang” in CALCRIM No. 1401, and (3) giving CALCRIM No. 372 on
consciousness of guilt from flight after commission of a crime. Finding no prejudicial
error, we affirm the judgment.


                                          FACTS


              Due to a spate of recent shootings in a neighborhood claimed by a criminal
street gang named West Myrtle, a group of gang unit police officers participated in a late
night surveillance of the area. During the surveillance, the officers saw a vehicle
occupied by several persons drive slowly through the neighborhood three separate times.
              On its first pass, the vehicle stopped at one point. Three persons got out of
it and walked along the street, “looking around” and “into the courtyards” of the adjacent



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apartment buildings. As they did so, the vehicle moved forward paralleling their
movement. After about a minute, the three individuals reentered the vehicle, which
continued its slow drive along the street before turning at an intersection. The vehicle
entered and slowly drove through the alley behind the apartment buildings, momentarily
stopping at each courtyard.
              The vehicle returned for a second pass, again proceeding slowly along the
street. It stopped at a corner where three persons got out and crossed the street looking
around. After a minute, they walked back and reentered the vehicle. The vehicle drove
off, but returned a few seconds later and made a third slow pass along the street before
driving through the alley again.
              An officer in a marked patrol car stopped the vehicle as it began to leave
the area. When it came to a stop, one occupant jumped out and tried to flee. Before his
apprehension, he threw a loaded revolver onto to the roof of a restaurant, which the
police later retrieved. The vehicle’s six other male occupants, including defendant and
Eric Beltran, were also arrested.
              A few days later, the police questioned Beltran. He ultimately
acknowledged that all but one person in the vehicle belonged to or associated with a
street gang named Los Compadres. Beltran said that initially the group had planned to
attend a party. They stopped at a home in an area claimed by Los Compadres to obtain a
“toy,” i.e., a gun, in case “something went wrong.” Defendant was the one who left the
vehicle and returned with the weapon. Someone in the vehicle then said, “let’s go smoke
a dude” or “get a turtle,” which meant kill a member of the West Myrtle gang. After one
of the passes along West Myrtle, a member of the group who had gotten out of the
vehicle returned and said, “no one’s there.”
              At trial, Beltran testified under an agreement with the prosecution that
would allow him to be released from custody if he told the truth. However, his trial



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testimony diverged significantly from what he told the police during the interrogation.
Initially, Beltran acknowledged Los Compadres was a gang, but denied being a member
of it, claiming only to be a “friend” of some of its members. He denied hearing anyone,
including the persons on trial, state they belonged to Los Compadres. According to
Beltran, on the way to a party the group decided to get something to eat. They circled
Myrtle Street looking for a restaurant before being stopped by the police. He
acknowledged knowing the area was claimed by West Myrtle, but denied knowing of the
presence of a gun. Beltran claimed he “felt a lot of pressure” when questioned by the
police after his arrest and told the officers what he thought they wanted to hear.
              Beltran then admitted some of his prior testimony was untruthful. He
acknowledged being affiliated with Los Compadres and that the persons on trial,
including defendant, were also affiliated with the gang. He acknowledged West Myrtle
was a rival gang and the group’s act of driving into an area claimed by West Myrtle could
result in “[a]n assault” or something “worse.” But he continued to deny knowing there
was a gun in the car or that the group intended to find and kill a West Myrtle gang
member. Beltran said he lied to the officers during the interrogation when they asked
him about having a gun in the car or that the group’s intent was to “smoke a turtle.” He
claimed the purpose for driving along Myrtle Street was to “[h]ave a little excitement.”
              The prosecution presented evidence Los Compadres was a “turf-oriented”
criminal street gang and that the vehicle’s occupants, including defendant, belonged to
the gang. One of Los Compadres’ rivals was West Myrtle, another “turf-oriented” gang.
Entering a neighborhood claimed by a rival gang is a means of showing disrespect.
Killing a member of a rival gang can generate respect for a gang member and his gang,
plus increase his gang status. Given a hypothetical based on the facts of this case, an
expert on street gangs opined the conduct benefitted the participants’ gang and also
promoted, furthered, or assisted felonious conduct on the gang’s behalf.



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                                       DISCUSSION


1. Sufficiency of the Evidence
              1.1 Introduction
              Defendant challenges the sufficiency of the evidence supporting both his
conspiracy conviction and the true finding on the gang enhancement.
              The standard of review for these claims is well settled. “[W]e review the
entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt,” presuming “in support of the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.
[Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The same standard applies in
reviewing an enhancement finding. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)


              1.2 Accomplice Testimony
              Penal Code section 1111 declares “A conviction cannot be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall tend
to connect the defendant with the commission of the offense.” (Italics added.) The trial
court instructed the jury that Beltran was an accomplice to the charged crimes and, to
support a conviction, his statement and testimony required corroboration. Defendant
attacks his conviction for conspiracy to commit murder, arguing “the only evidence to
establish any type of conspiracy” was “Beltran’s testimony” and “there was insufficient
evidence to corroborate” him.

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              This argument misconstrues the law applicable to accomplice testimony.
Case law has made clear “the corroboration required by [this statute] does not include the
corpus delicti and is confined to the matter of connection of the individual defendant with
the crime.” (People v. Buono (1961) 191 Cal.App.2d 203, 215-216.) Thus, contrary to
defendant’s argument, Beltran’s pretrial statements about the group’s acquisition of a
gun, one participant’s comment about “get[ting] a turtle,” and his admissions during the
interrogation and at trial that the group intentionally drove through a neighborhood
claimed by a rival street gang was “sufficient to establish the fact of conspiracy.” (Id. at
p. 216.)
              Further, the prosecution’s other evidence linked defendant to the
conspiracy. It supported a finding he and the other persons indicted belonged to a
criminal street gang named Los Compadres. The officers conducting the late night
surveillance testified a vehicle, later found to be occupied by defendant and the other
indictees, made several slow drives through a neighborhood claimed by West Myrtle, a
Los Compadres rival. On two occasions some of the occupants got out and walked along
the street acting as if they were looking for someone. The vehicle twice drove through an
alley stopping to look into the courtyards of apartment buildings where West Myrtle gang
members were known to congregate. Later, when the police stopped the vehicle they
discovered one of the occupants had a loaded firearm. Thus, unlike the facts in People v.
Falconer (1988) 201 Cal.App.3d 1540, a case on which defendant relies, the evidence
here did more than “merely connect a defendant with the . . . other persons participating
in the crime.” (Id. at p. 1543.) We conclude his attack on the sufficiency of the evidence
supporting his conspiracy conviction lacks merit.


              1.3 The Gang Enhancement
              Penal Code section 186.22, subdivision (b)(1) enhances the punishment for



                                              6
a felony “committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” There are two elements the prosecution must establish to
support a true finding on this enhancement: “[T]he underlying crime was ‘committed for
the benefit of, at the direction of, or in association with any criminal street gang’ (the
gang-related prong), [and] ‘with the specific intent to promote, further, or assist in any
criminal conduct by gang members’ (the specific intent prong).” (People v. Rios (2013)
222 Cal.App.4th 542, 564.) Defendant contends the evidence fails to support either
element. We disagree.
              On the first element, defendant argues “beyond the fact of gang members in
a rival gang’s territory, there was little evidence other than the speculative opinion of the
gang expert from which the jury could reasonably infer that the alleged conspiracy was
gang related.” This claim ignores much of the evidence presented at trial. All of the
vehicle’s occupants belonged to Los Compadres. They were armed and drove along a
street in a neighborhood claimed by rival West Myrtle for the express purpose of
“get[ting] a turtle,” i.e., killing a member of the latter gang. Thus, the record reflects
more than just a mere presence in a rival gang’s claimed neighborhood.
              In People v. Albillar, supra, 51 Cal.4th 47, the Supreme Court held the
evidence supported a finding the defendants’ sexual assaults were gang-related, finding
the gang “expert[’s] testimony adequately described the relationship between the gang
and the current crimes.” (Id. at p. 61.) The same is true here. The gang expert explained
the importance of respect in the gang subculture and how gang members entering a
neighborhood claimed by rival gang armed with a loaded gun for the express purpose of
killing one of its members was a means of both showing disrespect to a rival gang and
“gain[ing] status within the gang.” Albillar held “Expert opinion that particular criminal
conduct benefited a gang . . . can be sufficient to raise the inference that the conduct was



                                               7
“committed for the benefit of . . . a[] criminal street gang.” (Id. at p. 63.) Here, the gang
expert testified that “going in large numbers into a rival’s territory to commit a crime”
was a “classic” means of benefiting the perpetrators’ gang. Thus, the evidence supported
the enhancement’s first element.
              On the second element defendant argues “there is no evidence in the record
to suggest that [he] had the specific intent to promote or further the criminal activities of
Los Compadres by engaging in a drive by shooting on the night in question.” Contrary
to his reasoning, what is required to support a true finding is that he had “the specific
intent to promote, further, or assist criminal conduct by gang members.” (People v.
Albillar, supra, 51 Cal.4th at p. 67.) Further, “‘[i]ntent is rarely susceptible of direct
proof and usually must be inferred from the facts and circumstances surrounding the
offense’” and while “‘[e]vidence of a defendant’s state of mind is almost inevitably
circumstantial, . . . circumstantial evidence is as sufficient as direct evidence to support’”
the finding. (People v. Rios, supra, 222 Cal.App.4th at pp. 567-568.) The evidence
reflects everyone in the vehicle that evening belonged to the Los Compadres gang.
Defendant’s act of obtaining a loaded weapon and the group’s entry into a rival gang’s
claimed territory intending to seek out and kill a rival gang member supported a finding
he acted with the specific intent required to support a true finding on the enhancement.


2. Instructional Error
              2.1 CALCRIM No. 418
              Beltran’s statements to the police during his interrogation were admitted as
prior inconsistent statements. (Evid. Code, §§ 770 & 1235.) The court also admitted the
statements Beltran attributed to the vehicle’s other occupants under the coconspirator
exception to the hearsay rule. (Evid. Code, § 1223.) The latter statute authorizes the
admission of hearsay statements by coconspirators “if, at the threshold, the offering party



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presents ‘independent evidence to establish prima facie the existence of . . . [a]
conspiracy[,]’” and also substantiates “three preliminary facts . . .: ‘(1) that the declarant
was participating in a conspiracy at the time of the declaration; (2) that the declaration
was in furtherance of the objective of that conspiracy; and (3) that at the time of the
declaration the party against whom the evidence is offered was participating or would
later participate in the conspiracy.’” (People v. Hardy (1992) 2 Cal.4th 86, 139.)
               However, when explaining to the jury what must be demonstrated to
support consideration of the statements Beltran attributed to the defendants, the court
stated as follows: “In deciding whether the People have proved that the defendant
committed any of the crimes or enhancement charged, you may not consider any
statement made out of court by Eric Beltran, unless the People have proved by a
preponderance of the evidence that, 1, some evidence other than the statement itself
establishes that a conspiracy to commit a crime existed when the statement was made; 2,
the defendants were members of and participating in the conspiracy when the statement
was made; 3, either David Martinez, Isaias Arroyo, Johnny Olmedo, Victor Reyes, Raul
Cervantes[,] Jr.[,] or Matthew Mejia made the statement in order to further the goal of the
conspiracy; and 4, the statement was made before or during the time that the defendants
were participating in the conspiracy.” (Italics added.)
               Defendant complains this instruction was erroneous. He argues that
because the italicized phrase referred “to Beltran’s out-of-court statements, rather than
those of the defendants . . . the instruction . . . failed to ensure that the jury properly
applied the rules for co[]conspirator statements to the statements truly at issue in this
case.” The Attorney General agrees with defendant’s criticism and thus concedes the
instruction as given was incorrect.
               The question then is whether this error prejudiced defendant. He claims it
did, arguing “[s]ince the initial reference in the instruction was to Beltran’s out-of-court



                                                9
statements, . . . there is a strong likelihood that the jurors did not view CALCRIM No.
418 as being applicable to the most critical statements admitted in this case.” The
Attorney General disagrees, claiming the error benefitted defendant “because instead of
making the conspiracy findings as to just those statements Beltran attributed to his
codefendants, the jury made the findings as to all the statements made by Beltran.” Thus,
“the error did not contribute to the verdict.”
              Generally, errors in instructing the jury are reviewed under the
state law standard of “whether it is reasonably probable that a result more favorable
to [the] defendant[] would have been reached had the jury been correctly
instructed . . . .” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 39.) In People v.
Prieto (2003) 30 Cal.4th 226, 251 and People v. Sully (1991) 53 Cal.3d 1195, 1231-1232,
the Supreme Court applied this standard where the trial court admitted the statements of
coconspirators, but failed to give the standard instruction on the requirements of
Evidence Code section 1223.
              Defendant claims this error violated his federal constitutional right to due
process. The United States Supreme Court has explained that “Even if there is some
‘ambiguity, inconsistency, or deficiency’ in the instruction, such an error does not
necessarily constitute a due process violation. [Citation.] Rather, the defendant must
show both that the instruction was ambiguous and that there was ‘“a reasonable
likelihood”’ that the jury applied the instruction in a way that relieved the State of its
burden of proving every element of the crime beyond a reasonable doubt. . . . Because it
is not enough that there is some ‘slight possibility’ that the jury misapplied the
instruction, [citation], the pertinent question ‘is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.’””
(Waddington v. Sarausad (2008) 555 U.S. 179, 190-191 [129 S.Ct. 823, 172 L.Ed.2d
532]; People v. Williams (2013) 56 Cal.4th 630, 688 [“‘[I]n reviewing an ambiguous



                                                 10
instruction . . . we inquire “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the Constitution’”]; People v.
Jones (2012) 54 Cal.4th 1, 54 [to violate due process instructional error must “‘infect[]
the entire trial’”].)
               We find no prejudicial error regardless of which standard of review is
applied. First, the statement about “get[ting]” or “smok[ing] a turtle,” was likely
admissible for the nonhearsay purpose of establishing an operative fact; the agreement to
kill a rival gang member. (People v. Smith (2009) 179 Cal.App.4th 986, 1003 [“‘“If a
fact in controversy is whether certain words were spoken or written and not whether the
words were true, evidence that these words were spoken or written is admissible as
nonhearsay evidence”’”]; People v. Curtis (1951) 106 Cal.App.2d 321, 326 [“An act,
declaration, or omission of an alleged conspirator which forms a part of the transaction
which is in dispute—the agreement coupled with an overt act—is not hearsay and is
admissible in evidence”].) The statement constituted the agreement to kill a West Myrtle
gang member that was immediately followed by the group driving to the neighborhood
claimed by West Myrtle and searching for rival gang members.
               Second, defendant fails to make a showing there is a reasonable likelihood
the jury employed the erroneously worded instruction in a manner that reduced the
prosecution’s burden of proving him guilty of conspiracy to commit murder. The manner
in which the vehicle drove through the neighborhood and the conduct of those occupants
who briefly disembarked from it searching for someone or something suggests defendant
and the vehicle’s other occupants had come to the area for a prearranged purpose. This
inference, when coupled with evidence the vehicle’s occupants possessed a loaded
weapon, all of them belonged to a criminal street gang, and were in a neighborhood
claimed by a rival gang convincingly supports a finding they intended to shoot and kill a
rival gang member.



                                             11
              Defendant claims the instruction prejudiced him because “it is likely that
the jurors interpreted the instruction as applying only to Beltran’s out-of-court statements,
not those of others that he reported to law enforcement. As a result, the statements made
by the other occupants [in] the vehicle were never properly subjected to the standards
required for consideration of statements by co[]conspirators.” But as the Attorney
General notes, Beltran was the source for all of the statements admitted at trial and, since
“the other codefendants’ statements were a subset of Beltran’s general discussion with
the police, the jury necessarily applied the conspiracy finding to those statements as
well.” Thus, the erroneous version of CALCRIM No. 418 likely benefitted defendant.
We conclude this error did not prejudice him.


              2.2 CALCRIM No. 1401
              The court instructed the jury on the criminal street gang enhancement by
giving CALCRIM No. 1401. Defendant contends the trial court erred in failing to sua
sponte clarify the phrase “‘in association with a criminal street gang.’” He asserts it “is a
legal term with a specific definition that needed to be provided to the jury.” This
argument lacks merit.
              The general rule is that “[w]hen a word or phrase ‘“is commonly
understood by those familiar with the English language and is not used in a technical
sense peculiar to the law, the court is not required to give an instruction as to its meaning
in the absence of a request.”’” (People v. Estrada (1995) 11 Cal.4th 568, 574.) Thus, the
duty to provide clarification arises only where “[a] word or phrase . . . ha[s] a technical,
legal meaning” that “differs from the meaning that might be ascribed to the same terms in
common parlance.” (Id. at pp. 574-575.)
              Cases have construed the phrase “in association with a criminal street
gang” as it is commonly understood; a defendant committing a felony with one or more



                                             12
other gang members suffices to support a true finding on the enhancement. (People v.
Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 [“that the defendant had a fellow gang
member in the stolen vehicle with him would support a finding that he acted in
association with the gang”]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332
[enhancement supported where the “[d]efendant, who admitted membership in King
Kobras, committed the crimes with Garcia, another admitted member”]; People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 [crime committed with two other gang
members; “the jury could reasonably infer the requisite association from the very fact that
defendant committed the charged crimes in association with fellow gang members”].)
              Defendant argues People v. Albillar, supra, 51 Cal.4th 47 supports his
contention. Not so. There the jury returned a true finding on the gang enhancement
against three gang members who happened to be related to each other and lived in the
same home. The majority opinion held the evidence supported the finding. Defendant
refers to a statement in the opinion declaring, “The record supported a finding that
defendants relied on their common gang membership and the apparatus of the gang in
committing the sex offenses” to support his argument. (Id. at p. 60.) But nothing in the
opinion suggests the court intended this statement to create a technical meaning for the
phrase “in association with a criminal street gang.” Defendant’s reliance on comments in
the concurring and dissenting opinion which disagreed with the majority’s decision (id. at
p. 73 (conc. & dis. opn. of Werdegar, J.)), is also unpersuasive. We conclude the trial
court was not required to clarify the meaning of the phrase “in association with a criminal
street gang” in this case.


              2.3 CALCRIM No. 372
              The court gave CALCRIM No. 372 on consciousness of guilt from flight.
It stated: “If the defendant fled or tried to flee immediately after the crime was



                                             13
committed, that conduct may show that he was aware of his guilt. If you conclude that
the defendant fled or tried to flee, it is up to you to decide the meaning and importance of
that conduct. However, evidence that the defendant fled or tried to flee cannot prove
guilt by itself.” Defendant argues this instruction violated his constitutional rights
because its use of the phrase “‘aware of his guilt’” “permitted the jury to infer one fact,
guilt, from another fact, i.e., flight from the scene of the crime,” an inference he contends
“lack[s] a rational basis.”
              This argument has been repeatedly rejected. In People v. Mendoza (2000)
24 Cal.4th 130, the Supreme Court held “‘the suggested conclusion is . . . one that reason
and common sense justify in light of the proven facts before the jury,’” and “permits a
jury to infer, if it so chooses, that the flight of a defendant immediately after the
commission of a crime indicates a consciousness of guilt.” (Id. at p. 180; People v.
Pensinger (1991) 52 Cal.3d 1210, 1244 [“As there is a rational basis for inferring that if a
person flees immediately after a crime to avoid detection, he may do so because he
believes himself to be guilty, . . . defendant’s due process claim is without merit”].)
              Defendant argues the holdings in Mendoza and Pensinger are inapplicable
here because they reviewed CALJIC No. 2.52, which does not use the phrase “aware of
his guilt.” But People v. Hernández Ríos (2007) 151 Cal.App.4th 1154 rejected this
distinction and held this phrase does not render CALCRIM No. 372 constitutionally
infirm. “Since the dictionary defines ‘consciousness’ as ‘[s]pecial awareness or
sensitivity: class consciousness; race consciousness’ [citation], ipso facto the special
awareness that Mendoza allows a jury to infer from a flight instruction is ‘guilt
consciousness’ (in the syntax of the dictionary) or ‘consciousness of guilt’ (in the syntax
of the California Supreme Court). [Citations.] As the inference in Mendoza passes
constitutional muster, so does the inference here.” (Id. at p. 1159.) We agree with this
reasoning and thus conclude the trial court did not err in giving CALCRIM No. 372.



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                                  DISPOSITION


            The judgment is affirmed.




                                             RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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