Filed 7/30/14 P. v. Melendez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047964

         v.                                                            (Super. Ct. No. 09CF0883)

RONALD PERALTA MELENDEZ,                                               OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed in part, reversed in part.
                   Patricia J. Ulibarri, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland Assistant Attorney General, Peter Quon, Jr., and
Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
              Ronald Peralta Melendez was charged in a five-count first amended
information with assaulting Julio G. (Julio) with a semiautomatic firearm on December 4,
2007 (Pen. Code, § 245, subd. (b), count 1; all further statutory references are to the
Penal Code unless otherwise stated), attempted premeditated murder of Julio (§§ 664,
187, subd. (a), count 2), and active participation in a criminal street gang (§ 186.22, subd.
(a), counts 3, 5). He was also charged with the December 21, 2007, possession of a
firearm by a convicted felon (§ 12022, subd. (a)(1), count 4).
              The information alleged Melendez personally used a firearm in the
commission of count 1 (§ 12022.5, subd. (a)), vicariously discharged a gun and caused
great bodily injury in the commission of count 2 (§ 12022.53, subds. (c), (d) & (e)(1)),
and committed counts 1 and 2 for the benefit of, at the direction of, and in association
with a criminal street gang (§ 186.22, subd. (b)(1)). It also alleged Melendez had four
prior serious or violent felony convictions (§ 667, subds. (a)(1) & (e) (2)), a prior felony
conviction for active participation in a criminal street gang, and served four prior prison
terms (§ 667.5, subd. (b)).
              Trial began on January 18, 2011, but the trial court declared a mistrial on
January 26, 2011 after one of the prosecution’s key witnesses, Edgar Mendoza Ramirez,
gave a statement containing new evidence just before the start of the first trial.
              On June 8, a second jury convicted Melendez of all counts. The jury also
found he committed counts 1 and 2 for the benefit of, at the direction of, or in association
with a criminal street gang, and he vicariously discharged a firearm and caused great
bodily injury with respect to count 2. The jury could not reach a verdict on the personal
gun use allegations, nor did it find sufficient evidence of premeditation and deliberation.
              In a separate proceeding, the trial court found Melendez had suffered four
prior serious or violent felony convictions within the meaning of the Three Strikes law
(§ 667, subds. (b)-(i)), two prior serious felony convictions under section 667,



                                              2
subdivision (a)(1), and had served four prior prison terms (§ 667.5, subd. (b)). The trial
court imposed a total indeterminate term of 60 years to life.
               Melendez raises the following challenges to the judgment: (1) the trial
court erroneously denied his motions to sever the gang charges and bifurcate the gang
enhancements; (2) the gang expert gave improper testimony; (3) there is insufficient
evidence to prove the attempted murder, assault with a firearm, and active participation
convictions, and the gang enhancement findings; (4) the trial court improperly denied his
request for a pinpoint instruction on third party culpability; and, (5) the trial court
improperly denied his Pitchess motion.1 We agree there is insufficient evidence for the
December 4 active participation conviction, and affirm the judgment in all other respects.
                                           FACTS
               Around noon on December 4, 2007, someone shot Julio outside the
Western Union office at the intersection of 17th and Spurgeon Streets in Santa Ana. Julio
had driven there in the company of a friend, Daniela H. (Daniela). On December 21,
2007, police officers responding to a report of a man brandishing a gun, found a black
Astra semiautomatic nine-millimeter handgun in a house then occupied by Melendez,
Rocko Savastano, Robert Reyes, Jr., and Arthur Martinez, all members of either the
Logan Street or Delhi criminal street gangs and convicted felons.
1. December 4
               a. Daniela
               Daniela was 15 years old when the shooting occurred. Santa Ana Police
Officer Gregory Stys arrived at the scene of the shooting within minutes. Stys was
familiar with the area because he had previously been assigned to patrol there. During
this time he had talked to numerous members of the Logan Street criminal street gang
and noticed Logan Street graffiti in the area.


       1   Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

                                                 3
                 Stys first contacted Julio, who was lying on the ground and bleeding from a
wound in his torso. Then he spoke to Daniela, who appeared to be upset and erratic.
Daniela told Stys she had seen the shooting, and she gave a description of the suspect: a
male Hispanic in his 20’s with short black hair and a mustache, clothed in blue jeans and
a white T-shirt. Stys later walked the area where the shooting occurred and found a nine-
millimeter shell casing, a live nine-millimeter round, and a white stick in close proximity
to each other.
                 In early February 2008, Santa Ana Police Detective Eric Paulson and
Detective Nunez interviewed Daniela at her home. To Paulson, Daniela seemed nervous,
scared, and reluctant to talk to the police.
                 Daniela told Paulson that on the day of the shooting, she had seen three or
four young Hispanic men walking on the sidewalk near the Western Union as Julio pulled
into the parking lot. She told Julio to wait until this group passed by them before he got
out of the car, but Julio said “nah” and got out of the car immediately. As Julio got out of
the car, and as Daniela was in the process of getting out of the car, she noticed Julio was
running away. Daniela said she did not hear any words exchanged, but one member of
the group of Hispanic men pulled out a black handgun and shot Julio. The other
members of the shooter’s group ran, but the shooter walked or limped away.
                 Daniela told Paulson she saw the gunman from about five feet away. She
described him as Hispanic, with a “little bit beard” and short hair. She thought he looked
to be in his mid-to-late 20’s. Paulson showed her a six-pack photographic lineup he
prepared using a computer program that takes the reported height, weight, age, and race
of a suspect to generate comparable pictures from the Orange County jail’s data base.
                 Melendez’s photograph was in the number two position. Paulson had
obscured his many tattoos because no witness had reported seeing tattoos on the shooting
suspect. After reading a standard admonishment, Paulson asked Daniela to take a look at
the photo array. After about 20 seconds, Daniela pointed to Melendez’s photograph and

                                               4
said, “He looks . . . .” Paulson then asked how many young men there were in the group
with the shooter and Daniela said there had been five. When Paulson asked whether the
person she pointed to was the shooter or one of the other young men in the group,
Daniela responded, “Yea, the guy that had the gun.” Paulson also showed Daniela a
second six-pack photographic lineup, but she was unable to identify anyone from that
photo array.
                At trial, Daniela claimed to remember little of the shooting and frequently
testified she could not recall making certain statements. In fact, she testified she had poor
eyesight and needed glasses, and she claimed to have difficulty seeing things in the
courtroom. She also testified she felt pressured to identify someone from the police
photographic lineup, and she had assumed Melendez was the shooter because he was the
only person she had seen at the scene of the shooting.
                b. Ramirez
                On the day of the shooting, Ramirez told Santa Ana Police Officer Jesse
Flores that he heard voices arguing on the other side of a brick wall at the back of the
parking area. He said it sounded like a gang “hit-up.” He also told Flores one of the
suspects involved in the shooting had used a white stick or cane similar to the one found
at the scene.
                Ramirez testified at the second trial pursuant to an agreement with the
California witness relocation assistance program (CALWRAP), a program designed to
relocate and house victims or witnesses who are threatened or may be targeted due to
their testimony. The district attorney’s office applied for these funds because Ramirez
lived in the heart of Logan Street’s claimed territory. He had received a total of
$4,198.51 in assistance with his relocation by the time of trial. Although he had
outstanding arrest warrants for his failure to complete courses related to convictions for
driving under the influence and misdemeanor domestic violence, Ramirez was not
arrested as a result of his coming to court to testify.

                                               5
              During his trial testimony, Ramirez said that in May 2007 he lived in the
area around 17th and Spurgeon Streets. On the day of the shooting, he had been hanging
around a wall that bordered the parking lot because his friend owned one of the stores
near the Western Union, and he “had a felling something was going to happen.”
Sometime around noon, Ramirez looked over the wall to see what was going on in the
alley. From about 29 feet away, Ramirez saw a group of two or three Hispanic men
standing in the parking lot. One of these men was holding a white stick, a shirt, and a
gun. Ramirez ducked down behind the wall and then heard a gunshot. He ran home, but
after a few minutes, Ramirez came back and “checked out the scene.”
              Ramirez identified Melendez as the person who had the gun, the shirt, and
the white stick, although he also testified he had seen Melendez walking around the
neighborhood 45 minutes to an hour before the shooting, and that he had seen him in the
neighborhood a couple of times before. On each prior occasion, Ramirez said he “paid
respect” to Melendez. Ramirez also said when he and some family members saw
Melendez before the shooting, they “had a feeling that something was going to happen.”
              Ramirez admitted he lied to police in 2007 and 2008 when he told them he
had not seen the shooting. He also admitted he hid from the police to avoid becoming
involved in the case, and in 2011 Santa Ana police officers tricked him into coming to the
police station by telling him someone in his family had been the victim of identity theft.
              Following his live testimony, Ramirez’s testimony from another court
proceeding was read to the jury. In this version, Ramirez said he heard people arguing in
English and Spanish in the parking lot before the shooting. He knew gang members “hit-
up” strangers and rivals by asking, “Where are you from,” but he could not recall if that
was what he heard. Ramirez saw several male Hispanics, Melendez included, standing in
a group just before the shooting. Melendez was limping and using a white stick or cane
to walk, and he was carrying a gun. Ramirez said he heard a gunshot, ducked down, and



                                             6
then ran back to his parent’s home. When he went back to the scene of the shooting
minutes later, he realized someone had been shot.
2. December 21
              a. Investigating Officers
              Santa Ana Park Ranger Sergeant Richard Murg testified that around 4:00
p.m. on December 21, 2007, he was patrolling the area around the 700 block of Poinsettia
Street in Santa Ana when a car suddenly swerved in front of him and came to a stop.
Murg slammed on his brakes and stopped. Then he saw two male Hispanics jump out of
the car and run toward his patrol car. Murg testified, “They both got out of the car at the
same time, yelling and screaming in broken English about a man that had a gun. They
said this man jumped out in front of their car.” The two men directed Murg to the spot
where they said a man had confronted them with a gun. They drove a short distance and
then pointed to a specific house on Civic Center Boulevard, which happened to be
Martinez’s home. Murg called for backup, and then he noticed the two men were gone.
              Santa Ana Police Detective Mary Campuzano was dispatched to the scene.
She and other officers set up a perimeter around the house and directed anyone inside to
come out. Reyes came out voluntarily. He told Campuzano that Melendez “came in
through the rear gate of the yard, which is on the west side of the property, was yelling
cops, cops, come here. And then they both went to the rear entrance of the residence.
And then I believed that’s when Mr. Melendez asked him or said something to the effect
of, hold this, fool. And that’s when Mr. Reyes noticed that [Melendez] had a handgun in
his hand.”
              When police officer’s entered Martinez’s home, they found a loaded, nine-
millimeter black Astra semiautomatic handgun hanging inside a cloth bag in the kitchen.
A ballistics comparison later determined the spent nine-millimeter shell casing found at
the scene of the December 4 shooting had been fired from this gun.



                                             7
             b. Reyes
             Reyes testified under a grant of immunity. He explained that when he went
to Martinez’s home in Santa Ana the afternoon of December 21, Savastano was washing
his car outside and Martinez was watching him. As Reyes came out of the house to join
them, several police officers surrounded the residence. The police officers immediately
detained him. In this version, Reyes claimed he did not know Melendez was in the home
until Melendez came outside. Melendez, Reyes, Savastano, and Martinez were all
convicted felons and not allowed to possess firearms. In addition, all four young men
were documented members of either the Logan Street or Delhi criminal street gangs.
3. Forensic Evidence
             Melendez’s DNA was found on the white stick recovered at the scene of the
shooting, although it was conceded DNA transfer was possible. DNA samples were
taken from Melendez but not Savastano, Martinez, or Reyes. Two latent fingerprints
were also found on the white stick. A fingerprint analyst determined one of the prints
matched Melendez’s right ring finger. The analyst was not asked to make a comparison
with any other than Melendez’s fingerprint exemplar.
4. Melendez’s Statements
             On January 30, 2008, Paulson interviewed Melendez after advising him of
his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Melendez denied ever
using a walking stick or cane. When prompted, Melendez said “[t]here was no way that
his fingerprints would end up on anything that he could have used as a crutch.” Paulson
also testified Melendez had the word “Logan” tattooed on the back of his head and neck.
             Paulson testified he had attended two to three hours of formal training on
the Logan Street gang, in addition to hundreds of hours of general training on criminal
street gangs. In addition, he has talked to numerous other police officers with experience
with the gang and at least 50 Logan Street gang members. According to Paulson, the area
where the shooting occurred saw a lot of Logan Street gang activity.

                                            8
5. Gang Expert Testimony
              Detective Roland Andrade testified as the prosecution’s gang expert.
Andrade described a traditional Hispanic street gang as being a well-established
organization with participation from family members of multiple generations. These
gangs tend to be turf based, and gang members typically commit similar types of crimes,
including “robberies, shootings, possession [of] weapons, selling narcotics, murder,
attempted murder, auto thefts, [and] carjackings.”
              Andrade explained gang-related crime witnesses and victims are often
reluctant and even fearful. He said, “It is not uncommon for a witness or a victim to
essentially draw an imaginary line in the sand and say, I’m willing to go in and admit to
this much information, and I’m not going to say a gang name, I’m not going to point to
the individual in court. They have a preconceived notion as to what will not get them in
trouble in the street environment, but yet will keep them out of the realm of legal
problems as opposed to coming in here and blatantly perjuring themselves.”
              Andrade stated that in gang culture, the terms “snitch” and “rat” generally
apply to individuals “who have provided information to law enforcement regarding some
form or other regarding gang activity.” He also explained “respect is an attribute that all
gang members thrive [sic] to receive.” Gang members demand respect from other gang
members, rivals or allies, and people living in their gang’s claimed turf. Respect is vital,
and it is gained by committing violent crimes. The more violent the crime, the more
respect accorded the gang members who commit the crime and their gang as a whole. In
fact, violent crime committed by known gang members promotes the gang by making
community members reluctant to report gang-related crimes. It was Andrade who
advocated relocating Ramirez to protect him from gang reprisal.
              Andrade testified Logan Street is a traditional Hispanic street gang with a
claimed “turf” that includes the Santa Ana neighborhood where the shooting occurred.
At the time, the gang had approximately 40 active members. Their most common symbol

                                             9
is the word “Logan,” although gang members sometimes also use “Barrio Logan.”
Individual members will frequently have tattoos like “Logan,” the number “13,” and/or
the word “Sur.” These tattoos represent the “level of importance or allegiance” to the
gang, although all gang members tend to view their tattoos as signifying lifelong
allegiance to their gang. Different gangs will form alliances with each other for safety
and power. One of Logan Street’s allies is the Delhi gang.
              In Andrade’s opinion, the Logan Street gang’s primary activities are the
possession of weapons and street-level robberies. He testified about two predicate
crimes, a 2007 assault with a semiautomatic gun and a 2007 robbery, crimes committed
by active Logan Street gang members Jorge Perez and Alfredo Rios Saenz, respectively.
              Andrade also testified he reviewed the records of other criminal cases
involving Melendez, and other types of prior contacts Melendez had with law
enforcement. He discovered Melendez readily admitted membership in Logan Street and
he had been served with a STEP notice2 in 2004. In fact, Melendez had claimed Logan
Street since he was 12 or 13 years of age. Melendez had several gang-related tattoos,
including the word “Logan” tattooed on the back of his head and “Sur” on his chest.
              Andrade opined Melendez was an active Logan Street gang member in
2007. Based on hypothetical questions that mirrored the facts of the case, Andrade also
testified the shooting was committed for the benefit of the Logan Street gang. The crime
benefitted the gang by demonstrating its members’ willingness to commit violent crimes
on a “random individual” in their claimed turf. Plus, the fact the crime occurred in broad
daylight suggested to Andrade that the crime was “almost like a challenge to the residents
around there, I dare you to tell on us.”


       2 California Active participation Enforcement and Prevention Act (§ 186.20 et
seq.) STEP notices are a method of notifying someone that the organization he or she
associates with is considered a criminal street gang.


                                            10
                                      DISCUSSION
1. Gang Evidence
              Melendez raises two challenges to the gang evidence. First, he claims the
trial court erroneously denied his motions to sever the substantive gang charges and
enhancements from the underlying crimes. Second, he claims a portion of Andrade’s
testimony exceeded the permissible scope of an expert witness. We find neither
contention persuasive.
              a. Severance and Bifurcation
              Melendez moved pretrial to sever the active participation charges and
bifurcate the gang enhancement allegations from the other criminal charges. In support
of his motions, Melendez argued the admission of gang evidence violated Evidence Code
sections 1101, subdivision (b) and 352. He reasserts these contentions on appeal, and
also contends the admission of gang evidence at trial violated his constitutional right to
due process of law. None of his contentions has merit.
              We review the trial court’s ruling on severance and bifurcation motions for
abuse of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall).)
“Whether a trial court abused its discretion in denying a motion to sever necessarily
depends upon the particular circumstances of each case. [Citations.] The pertinent
factors are these: (1) would the evidence of the crimes be cross-admissible in separate
trials; (2) are some of the charges unusually likely to inflame the jury against the
defendant; (3) has a weak case been joined with a strong case or another weak case so
that the total evidence on the joined charges may alter the outcome of some or all of the
charged offenses; and (4) is any one of the charges a death penalty offense, or does
joinder of the charges convert the matter into a capital case. [Citation.] A determination
that the evidence was cross-admissible ordinarily dispels any inference of prejudice.
[Citations.]” (Ibid.)



                                             11
              Regarding severance, when “the statutory requirements for joinder are met,
a defendant must make a clear showing of prejudice to establish an abuse of discretion by
the trial court. [Citations.] We review the trial court’s decision ‘in light of the showings
then made and the facts then known.’ [Citation.]” (Marshall, supra, 15 Cal.4th at p. 27.)
              The conservation of scarce judicial resources militates in favor of joinder.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1050 (Hernandez).) “Severance of
charged offenses is a more inefficient use of judicial resources . . . because severance
requires selection of separate juries, and the severed charges would always have to be
tried separately.” (Ibid.) Joint trials of offenses which occur together are legislatively
preferred over separate trials, and the party requesting severance of properly joined
offenses carries a very heavy burden to “‘clearly establish that there is a substantial
danger of prejudice requiring that the charges be separately tried’” before a severance can
be granted. (People v. Burnell (2005) 132 Cal.App.4th 938, 946; see § 954.)
              In this case, the trial court did not abuse its discretion by denying severance
of the substantive gang offenses from the other crimes. The gang evidence was cross-
admissible as to motive, identity, and the reluctance of certain witnesses to testify, all
issues put into controversy by Melendez’s not guilty plea. The substantive active
participation count required much the same evidence to prove, and was no more
potentially inflammatory than the other charges. (See, e.g., Hernandez, supra, 33 Cal.4th
at p. 1051.) In fact, in some ways the gang evidence was necessary to make sense of an
otherwise senseless series of events. Moreover, the jury was correctly instructed on the
limited purpose of gang evidence, and we presume the jury followed these instructions.
(People v. Yeoman (2003) 31 Cal.4th 93, 139.)
              Regarding bifurcation, a trial court has broad discretion to control the
conduct of a criminal trial. (Hernandez, supra, 33 Cal.4th at p. 1048.) The trial court’s
power to bifurcate the trial of a gang enhancement from the trial of the substantive
offense is implied in section 1044. (Ibid.) Although a bifurcated trial is held before the

                                              12
same jury or the court, and the gang enhancements would have to be tried only if the jury
found the defendant guilty, the principles relevant to severance are also relevant here.
Moreover, “the trial court’s discretion to deny bifurcation of a charged gang enhancement
is . . . broader than its discretion to admit gang evidence when the gang enhancement is
not charged. [Citation.]” (Hernandez, supra, 33 Cal.4th at pp. 1048-1050.)
              As noted by the Hernandez court, and pertinent here, “evidence of gang
membership is often relevant to, and admissible regarding, the charged offense.
Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the
extent the evidence supporting the gang enhancement would be admissible at a trial of
guilt, any inference of prejudice would be dispelled, and bifurcation would not be
necessary. [Citation.]” (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
              The Hernandez court also observed that bifurcation may be necessary
where the predicate offenses offered to establish the pattern of criminal activity are
“unduly prejudicial,” or where some of the other gang evidence may be “so
extraordinarily prejudicial, and of so little relevance to guilt,” that it may influence the
jury to convict regardless of the defendant’s guilt.” (Hernandez, supra, 33 Cal.4th at p.
1049.) But here, the gang evidence was necessarily intertwined with the charged
offenses as to several relevant issues, particularly motive, identity, and the reluctance of
witnesses to testify. In addition, evidence of the predicate offenses was no more
prejudicial than evidence of the charged crimes.
              Melendez bitterly complains that motive is not an element of the crimes.
But as has been stated many times, “[m]otive is always relevant in a criminal
prosecution.” (People v. Perez (1974) 42 Cal.App.3d 760, 767.) This is especially true
in cases such as this one where the very reason for the underlying crime is gang related.

                                              13
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.) Viewing the evidence
in the light most favorable to the judgment, a gang hit-up in gang territory by a known
gang member with a gun when this gang member later tries to dispose of the gun in a
house full of other gang members certainly qualifies as grounds for joinder.
              b. Due Process
              Finally, Melendez argues the denial of his motions for bifurcation and/or
severance of the gang issues and evidence violated his due process right to a fair trial on
the assault with a semiautomatic firearm, attempted murder and gun possession charges,
resulting in a fundamentally unfair trial, and the error entitles him to a new trial.
              On the due process issues, we find People v. Albarran (2007) 149
Cal.App.4th 214 (Albarran) instructive. “To prove a deprivation of federal due process
rights, [the defendant] must satisfy a high constitutional standard to show that the
erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no
permissible inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must “be of such quality as necessarily prevents a fair
trial.” [Citations.] Only under such circumstances can it be inferred that the jury must
have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue
is . . . whether the trial court committed an error which rendered the trial “so ‘arbitrary
and fundamentally unfair’ that it violated federal due process.” [Citation.]’ [Citation.]”
(People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn. omitted.)
              In Albarran, the trial court admitted relevant and irrelevant gang evidence,
which included other gang members’ threats to kill police officers, descriptions of crimes
committed by other gang members and references to the Mexican Mafia prison gang.
(Albarran, supra, 149 Cal.App.4th at pp.214-217.) The appellate court characterized the
irrelevant gang evidence as “extremely and uniquely inflammatory, such that the
prejudice arising from the jury’s exposure to it could only have served to cloud their
resolution of the issues.” (Id. at p. 230, fns. omitted.) The court further described this

                                              14
evidence as “overkill,” and said it was “troubled” by the trial court’s failure to scrutinize
the potential prejudice of the gang offense on the substantive charges. (Id. at p. 228.)
              Here, Melendez was charged with both gang substantive offenses and gang
enhancements. The jury was properly instructed on the limited admissibility of the gang
evidence, and as will be discussed post, the jury’s verdict on count 5 and the gang
enhancements are supported by substantial evidence. Andrade’s expert testimony was
limited to the essential facts needed by the prosecution to prove the elements of both the
substantive offenses and the enhancements, and this evidence was no more sensational or
inflammatory than evidence of the attempted murder and assault charges, which
Melendez committed in broad daylight, and the gun possession charges that linked him to
the other crimes. The instant case is simply not “one of those rare and unusual occasions
where the admission of evidence has violated federal due process and rendered the
defendant’s trial fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at p. 232.)
              c. Alleged Improper Expert Testimony
              During redirect examination, the prosecutor engaged Andrade in the
following colloquy: “[Prosecutor]: You’re aware of [Daniela’s] testimony where she
identified Mr. Melendez as the person with a gun; is that correct? [¶] [Andrade]: Yes.
[¶] Q. You’re aware that Mr. [Ramirez] identified Mr. Melendez as the individual with
the gun; Is that correct? [¶] A. Yes. [¶] Q. You’re aware that the white cane that Mr.
Melendez was seen holding returned to him through DNA evidence; is that correct? [¶]
A. Yes. [¶] Q. You’re aware that the white cane in which Mr. Melendez was seen
holding came back to him through fingerprint evidence; correct? [¶] A. Yes. [¶] Q.
Would you be here testifying against Mr. Melendez if you believed that anyone other
than Mr. Melendez was involved in this case? [¶] [Defendant counsel] Objection calls
for speculation. [¶] The court: Sustained. [¶] Q. Do you believe Mr. Melendez was
involved in this case? [¶] A. Yes.”



                                             15
              On appeal, Melendez contends Andrade’s statement he believed Melendez
to be “involved in this case” was impermissible expert testimony. The Attorney General
correctly argues Melendez failed to object to this final statement, and thus failed to
preserve the issue for appeal. (Evid. Code, § 353, subd. (a).) Nevertheless, assuming
error, we find no prejudice resulted from this single statement.
              A verdict cannot be set aside for the erroneous admission of evidence if the
error did not result in a miscarriage of justice. (Evid. Code, § 353; People v. Rodrigues
(1994) 8 Cal.4th 1060.) In a trial that produced 1,171 pages of reporter’s transcript, 102
of which was Andrade’s expert testimony, it would seem nearly impossible for one
statement by him to result in a miscarriage of justice, and that is the case here.
              Furthermore, Andrade had already given his expert testimony on Hispanic
gang culture, both general and specific to Logan Street, the types of crimes committed by
Logan Street gang members, and his opinion that Melendez was an active Logan Street
gang member on the relevant dates. He also explained what exactly an active gang
member is, and how these crimes benefitted Logan Street. Consequently, there was little
doubt as to Andrade’s belief that Melendez was “involved” in the crime. Moreover, the
trial court instructed the jury on the proper limitations of gang evidence, how to view
expert witnesses’ testimony, and the prosecution’s burden of proof. Thus, we find no
prejudice in Andrade’s response to the prosecutor’s final question, proper or not.
2. Sufficiency of the Evidence
              Melendez challenges the sufficiency of the evidence to support the
attempted murder, assault with a firearm, and active participation convictions, and the
gang enhancement findings. He asserts the evidence established nothing more than his
mere presence at the scene of the shooting. We disagree.
              To resolve challenges to the sufficiency of the evidence, we view the
evidence in the light most favorable to the judgment and determine if any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.

                                             16
(Jackson v. Virginia (1979) 443 U.S. 307, 319.) This court reviews “the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
              Furthermore, we presume in support of the judgment the existence of every
fact the trier reasonably could have deduced from the evidence and draw all reasonable
inferences in support of the judgment. (People v. Rayford (1994) 9 Cal.4th 1, 23.) “[I]t
is the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must accord due deference to
the trier of fact and not substitute our evaluation of a witness’s credibility for that of the
fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) Generally, a
judgment should not be reversed on ground of insufficiency of the evidence unless it
appears that under no hypothesis is it sufficient to support the conviction. (People v.
Sanchez (2003) 113 Cal.App.4th 325, 329.)
              a. Attempted Murder and Assault With a Firearm
              “Attempted murder requires (1) a specific intent to kill and (2) a direct but
ineffectual act toward accomplishing the intended killing. [Citation.] Unlike murder, an
attempted murder therefore requires express malice and cannot be proved based upon a
showing of implied malice.” (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)
              CALCRIM No. 875 told the jury that to prove Melendez committed an
assault with a semiautomatic firearm the prosecution had to prove the following: (1)
“defendant did an act with a semiautomatic firearm that by its nature would directly and
probably result in the application of force to a person”; (2) “the defendant did that act
willfully”; (3) “[w]hen the defendant acted he was aware of the facts that would lead a
reasonable person to realize that his act by its nature would directly and probably result in

                                              17
the application of force to someone”; and (4) “[w]hen the defendant acted, he had the
present ability to apply force with a semiautomatic firearm to a person.” And it explained
that “[s]omeone commits an act willfully when he or she does it willingly or on purpose.”
              Melendez claims the evidence does not prove he shot Julio, or aided and
abetted another in the shooting. The primary thrust of his contention is that no reasonable
juror could have relied upon the brittle credibility of Daniela and Ramirez. However, we
may not reject the statements given by a witness who has been believed by the jury,
unless we find them physically impossible, or apparently false. (People v. Mayberry
(1975) 15 Cal.3d 143, 150.) “‘“Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.]”’” (Ibid.)
              In this case, conflicting testimony aside, there was nothing impossible or
apparently false in Daniela’s or Ramirez’s testimony. Viewing the evidence with the
proper standard of review in mind, the prosecution proved that on December 4,
Melendez, a Logan Street gang member, walked around Logan Street’s claimed territory
with a gun and a cane. He and some other young men walked up to Julio, issued a gang
challenge, and shot him. Melendez either shot Julio himself, or he handed the gun to the
shooter. As Daniela testified, Julio was at the Western Union to cash a check, not to
cause trouble, and he had barely gotten out of his car when he was shot at close range.
              Because express malice is manifested by a deliberate intention unlawfully
to take away the life of a fellow creature (§ 188), evidence Melendez shot or aided and
abetted another in the shooting, is sufficient to prove attempted murder. (See People v.
Ramirez (2006) 39 Cal.4th 398, 465 [defendant acted intentionally by shooting the victim
twice at close range]; People v. Smith (2005) 37 Cal.4th 733, 743[the act of purposefully
firing a lethal weapon at another human being at close range, without legal excuse,
generally gives rise to an inference that the shooter acted with express malice].)

                                              18
              Melendez claims the evidence did not establish his identity as the young
Hispanic man with the white stick and gun, but this view of the record is improperly
skewed in his favor and in contravention of the standard of review. He also claims the
evidence fails to support the convictions under a theory he aided and abetted another in
the shooting. But again, reaching this conclusion requires that one ignore the proper
standard of review. While no evidence established the exact identity of the three or four
other young Hispanic men with Melendez, a reasonable inference in light of the totality
of the record is that Melendez, a self-admitted Logan Street gang member, was walking
around Logan Street’s claimed territory with a gun and backup. Then the group started
either a fight with Julio, or issued a gang challenge. After all, Ramirez said he heard
arguing and a gang hit-up before shots were fired. So a reasonable jury could conclude
Melendez, with the support of a number of other young men, asserted Logan Street’s
dominance in the gang’s claimed territory by committing a violent crime, either
personally or by aiding and abetting another. Recognizing the power of respect in gang
culture, and understanding how individuals and their gangs gain this respect, completes
the picture. In short, Melendez is simply wrong when he asserts the prosecution proved
nothing more than his “mere presence at the scene of the crime and his gang status.”
              b. Gang Crimes and Enhancements
              Melendez also challenges the sufficiency of the evidence to support the
active participation in a criminal street gang crimes and the gang enhancements. We
disagree, except as to the December 4 active participation conviction in count 3.
              The substantive offense of active participation in a criminal street gang has
three elements: (1) participation in a street gang that is more than nominal or passive; (2)
knowledge the gang’s members engage in, or have engaged in, a pattern of criminal gang
activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal
conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Melendez challenges the sufficiency of the evidence on the third element, and claims

                                             19
there is no evidence he willfully promoted, furthered, or assisted the felonious criminal
conduct of any other Logan Street gang member on either December 4 or 21.
              Melendez primarily relies on People v. Rodriguez (2012) 55 Cal.4th 1125
(Rodriguez). In Rodriguez, a case decided after this case was tried, our Supreme Court
held evidence a lone gang member committed a felony does not prove the third element
of the offense. (Rodriguez, supra, 55 Cal.4th at p. 1131.) As the court explained, the
word “members” is a plural noun. (Id. at p. 1132.) “Therefore, to satisfy the third
element, a defendant must willfully advance, encourage, contribute to, or help members
of his gang commit felonious criminal conduct. The plain meaning of section 186.22[,
subdivision](a) requires that felonious criminal conduct be committed by at least two
gang members, one of whom can include the defendant if he is a gang member.” (Ibid.)
              Applying Rodriguez to the December 4 and December 21 active
participation crimes charged in this case leads to different conclusions. At the time of the
shooting on December 4, Melendez was with four or five young Hispanic males. Daniela
described these individuals as “gang types.” However, the members of this group were
never identified, and the prosecution presented no evidence establishing any of them
were Logan Street gang members. Thus, there is insufficient evidence to support the
third element and the active participation conviction in count 3 must be reversed.
              We reach the opposite result with respect to the December 21 active
participation crimes charged in count 5. On that day, Melendez ran to Martinez’s house
with the gun used to shoot Julio. There he found Logan Street and Delhi gang members.
He asked them to help him hide the gun and they did so. Thus, there is sufficient
evidence to support the third element and the active participation conviction in count 5.
              Our reversal on count 3 has no effect on the gang enhancement finding
associated with count 1 or count 2. As the court observed in Rodriguez, there are several
differences between the active participation offense (§ 186.22(a)) and the gang
enhancement (§ 186.22(b)(1)). (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.) Thus, a

                                            20
lone gang member may be subjected to the enhanced penalties provided under section
186.22, subdivision (b)(1). (Rodriguez, supra, 55 Cal.4th at p. 1139.)
              To prove a gang enhancement allegation under section 186.22, subdivision
(b)(1), the prosecution must prove (1) the defendant committed the crime for the benefit
of, at the direction of, or in association with a criminal street gang, and (2) the defendant
had the specific intent to promote, further, or assist in any criminal conduct by gang
members. (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
Andrade fully explained how the shooting benefitted Logan Street by gaining respect and
intimidating community members and witnesses. And under these circumstances the jury
could reasonably infer Melendez had the required specific intent. Consequently,
sufficient evidence supports the gang enhancements.
3. Third Party Culpability Instruction
              Melendez requested the following pinpoint instruction on third party
culpability: “You have heard evidence that a person other than the defendant committed
the offense with which the defendant is charged. The defendant is not required to prove
the other person’s guilt. It is the prosecution that has the burden of proving the defendant
guilty beyond a reasonable doubt. There, the defendant is entitled to an acquittal if you
have a reasonable doubt as to the defendant’s guilt. Evidence that another person
committed the charged offense may by itself raise a reasonable doubt as to the
defendant’s guilt. However, its weight and significance, if any, are matters for your
determination. If after considering all of the evidence, including any evidence that
another person committed the offense, you have a reasonable doubt that the defendant
committed the offense, you must find the defendant not guilty.”
              Defense counsel stated he intended the instruction to be used solely on the
gun possession charge because Reyes, Martinez, and Savastano were also gang members
and convicted felons for whom gun possession was a crime. The trial court ruled the
instruction was inapplicable, citing the fact that possession includes both actual and

                                             21
constructive possession. The trial court further determined the proposed instruction could
confuse the jury, and that CALCRIM No. 2511,3 the pattern instruction for the crime,
was sufficient. The trial court’s ruling was correct.
              Possession may be constructive or actual, and possession may be shared by
two or more people. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) To prove
possession or constructive possession of a weapon, the prosecutor must prove three
elements: the defendant’s (1) knowledge of the weapon, (2) his or her right to control the
weapon, either controlling it directly or through another person, and (3) general intent to
possess it. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.)
              In this case, Reyes testified Melendez came to Martinez’s home with the
nine-millimeter gun in hand. He asked Reyes to help him hide the gun, and apparently
that is what they tried to do. Under the law, liability for the crime could also rest with
Reyes, Martinez, and Savastano, but that did not preclude Melendez’s conviction for the
offense. In short, we agree with the trial court.
              CALCRIM No. 2511 is a correct statement of the law, and it adequately
defined possession as relevant in this case. Furthermore, at least one part of Melendez’s
pinpoint instruction is misleading, if not incorrect. The statement, “Evidence that another
person committed the charged offense may by itself raise a reasonable doubt as to the
defendant’s guilt[,]” is not true if, as here, multiple people may have had simultaneous
constructive possession of an item. Consequently, we find no instructional error.
4. Pitchess Review
              Following January 2011’s mistrial, Melendez filed a Pitchess motion that
sought discovery relating to complaints about prior acts of falsification of reports,

       3  As given in this case, CALCRIM No. 2511 explained the concept of
constructive possession as follows: “Two or more people may possess something at the
same time. [¶] A person does not have to actually hold or touch something to possess it.
It is enough if the person has control over it or the right to control it, either personally or
through another person.”

                                               22
wrongful acts involving moral turpitude, illegal detentions, searches, or seizures, and any
reports relevant to the officers’ characters from the law enforcement personnel files of
Santa Ana Police Corporal Brown (No. 2681), Campuzano (No. 895), and Murg (No. 8).
              After reviewing defense counsel’s sealed declaration in support of the
motion, the trial court found good cause to conduct an in camera review with respect to
Brown and Campuzano. After the trial court conducted an in camera review of the
personnel files produced, the trial court stated it found no records to disclose and sealed
the record of the proceedings.
              Melendez requests appellate review of all the documents produced to the
trial court in response to his Pitchess motion. However, an appellate court need not
review the individual documents produced at the hearing. (People v. Myles (2012) 53
Cal.4th 1181, 1209.) When challenged on appeal, the trial court’s decision regarding the
discoverability of material in police personnel files is reviewed under the abuse of
discretion standard. (People v. Cruz (2008) 44 Cal.4th 636, 670.) This court ensures the
lower court’s compliance with the procedural guideline set out in People v. Mooc (2001)
26 Cal.4th 1216, 1228-1230 (Mooc).
              As noted, the documents screened by the trial court were not made part of
the record on appeal. However, the sealed transcripts of the in camera proceedings
indicate the trial court complied with all procedural requirements. The custodian of
records was sworn before the court and testified that all records responsive to the defense
motion were available for the court’s review. (Mooc, supra, 26 Cal.4th at pp. 1228-1230;
People v. White (2011) 191 Cal.App.4th 1333, 1340.) The court, not the custodian of
records, described each document for the record, conducted a thorough review of the
individual documents, and then determined the relevancy of these documents to the
purpose for Pitchess motions. (Mooc, at pp. 1229-1230.) The court found nothing
responsive to Melendez’s motion in either officers’ personnel file, and ordered the record
sealed. We have reviewed the sealed record, but find no indication of error. Thus, there

                                             23
is no justification for remanding the matter for further proceedings. (See People v.
Wycoff (2008) 164 Cal.App.4th 410, 414-415.)
                                     DISPOSITION
              The active participation conviction on count 3 is reversed for insufficiency
of the evidence. In all other respects, the judgment is affirmed. The clerk of the superior
court is directed to amend the abstract of judgment and forward a copy to the Department
of Corrections and Rehabilitation.


                                                 THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.




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