Filed 4/2/13 P. v. Sanchez CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)


THE PEOPLE,                                                                                  C064103

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. SF105530A,
                                                                                       SF105530B)
         v.

RICHARD GARCIA SANCHEZ et al.,

                   Defendants and Appellants.




         Following a joint trial before separate juries, defendants Richard Garcia Sanchez
and Francisco Mendez were convicted of the first degree murder of Sergio Reyes (Pen.
Code, § 187, subd. (a)1; count 1), with two special circumstances, discharging a firearm
from a motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)) and being an
active participant in a criminal street gang and carrying out the murder to further the
activities of the gang (§ 190.2, subd. (a)(22)). Defendants also were convicted of




1   Further undesignated section references are to the Penal Code.

                                                             1
shooting a firearm from a motor vehicle (former § 12034, subd. (c); count 2)2; and active
participation in a criminal street gang (§ 186.22, subd. (a); count 4). Mendez alone was
convicted of shooting at an inhabited dwelling (§ 246; count 3). As to both defendants,
the juries found true allegations a principal intentionally and personally discharged a
firearm in the commission of counts 1 and 2 (former § 12022.53, subds. (d) and (e)(1)),3
and that counts 1 and 2 were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). Sanchez’s jury also found true allegations Sanchez intentionally
and personally discharged a firearm in the commission of counts 1 and 2 (§ 12022.53,
subd. (d)), and Mendez’s jury found true and allegation count 3 was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
       The trial court sentenced Sanchez to life without the possibility of parole on
count 1, plus an additional 25 years to life for personally discharging a firearm and
causing death in the commission of the murder, which the court ordered “merged into the
life without parole.” The court imposed and stayed sentences of 25 years to life on the
additional firearm enhancement and a term of life with a minimum parole eligibility of
15 years on the gang enhancement ancillary to count 1. As to count 2, the court imposed
and stayed a sentence of 7 years (the upper term), plus two terms of 25 years to life for
the firearm enhancements, and 10 years for the gang enhancement. As to count 4, the
trial court imposed and stayed a sentence of 3 years (the upper term).




2 Section 12034 was repealed effective January 1, 2012, but was reenacted without
substantive change as section 26100. (See People v. Miller (2012) 202 Cal.App.4th
1450, 1459.)
3 Following defendants’ convictions the Legislature repealed section 12022.53. A new
version took effect on January 1, 2012. (Stats. 2010, ch. 711, §§ 5, 10.) The new version
continues section 12022.53 without change, except that, as relevant here, subdivision (d)
was revised to correct a cross-reference to former section 12034, subdivisions (c) & (d).
We shall refer to the former section as “section 12022.53.”

                                              2
       The trial court sentenced Mendez to life without the possibility of parole on count
1, plus 25 years to life for the firearm enhancement, which the court ordered “merged
into the life without parole sentence for Count 1.” The court imposed and stayed a
sentence of life with a minimum parole eligibility of 15 years on the gang enhancement
appended to count 1. As to count 2, the trial court imposed and stayed a sentence of
7 years (the upper term), plus 25 years to life for the firearm enhancement, and 10 years
for the gang enhancement. As to count 3, the court imposed and stayed a sentence of
7 years (the upper term), plus an additional term of life with a minimum parole eligibility
of 15 years for the gang enhancement. As to count 4, the court imposed and stayed a
sentence of 3 years (the upper term). The court also imposed various fines and fees,
including a $30 court facilities assessment for each offense. (Gov. Code, § 70373.)
       Defendants appeal. Sanchez contends the trial court prejudicially erred in
(1) including “developmental disability” in the jury instruction on mental competence at
his competency hearing, (2) admitting evidence Mendez was present and remained silent
when Sanchez made statements implicating himself and Mendez in Reyes’s murder, and
(3) sentencing him on count 2. Mendez contends the trial court prejudicially erred in
(1) allowing testimony to be read to the jury when neither he nor his attorney was
present, (2) instructing the jury regarding flight, (3) sentencing him to life without the
possibility of parole on count 1 when he was 15 years old at the time of Reyes’s murder,
and (4) imposing a court facilities assessment. Mendez also joins in Sanchez’s claim that
the trial court erred in sentencing defendants on count 2.
       We shall modify the defendants’ sentences on counts 1 and 2 and affirm the
judgments as modified.




                                              3
                   FACTUAL AND PROCEDURAL BACKGROUND
                                             I
                                      The Prosecution
       Late on the afternoon of November 15, 2006, Reyes was shot and killed as he
walked to the store to get some milk. Reyes’s young niece, who was outside at the time,
heard gunshots and ran inside and told family members what she had heard. Various
family members rushed down the street and discovered Reyes lying in a ditch.
       Neighbors telephoned 911 and reported hearing shots fired. A paramedic arrived
minutes later. Reyes “took one breath and he was pulseless [sic].” He was transported to
San Joaquin County Hospital and was pronounced dead at 6:15 p.m. He had been shot
three times. Among other things, his left lung and heart were perforated, causing massive
bleeding.
       After hearing two shots, Flo Ming, who lived near the scene of the shooting, ran
outside and observed a car “[back] up, kind of went in the ditch and . . . [pull] out and
c[o]me flying down the street in front of [her] house.” No shell casings were recovered
from the scene, suggesting the weapon used was a revolver.
       Law enforcement officers received a tip in August 2007, and on August 16, 2007,
searched a residence where Mendez was reportedly staying. When officers arrived,
Mendez ran out the back door. He was found hiding inside a “shed area” and taken into
custody.
       Mendez was interviewed by law enforcement later that same day. Evidence
concerning his statements only was presented to his jury. On the day of the shooting,
defendants were “cruising around” in their friend Rafael Cruz’s car when they came
across Reyes. Sanchez, who was driving, pulled over near where Reyes was walking and
asked him if he “bang[ed],” and Reyes responded by asking Sanchez the same question.
Sanchez pulled out a gun, fired eight shots at Reyes, and took off “to get away.” Mendez
initially claimed he did not know Sanchez had a gun, but later admitted that Sanchez


                                              4
“didn’t have no [sic] gun,” and that the gun that was used to shoot Reyes, a .22-caliber
revolver, belonged to Mendez. Sanchez provided the bullets, which he obtained from his
father. Mendez also stated that he had the gun in the glove box of Cruz’s car, handed it
to Sanchez when they saw Reyes, and told Sanchez, “you shoot him or I shoot him.”
When asked what happened to the gun after the shooting, Mendez explained that he later
threw it out the window of a car during a high speed chase with police, and he assumed it
was retrieved by the police.
        On August 17, 2007, the day after Mendez was taken into custody, officers
searched a residence where Sanchez was reportedly staying. While waiting outside,
officers saw Sanchez leave the residence, and they took him into custody.
        Sanchez was interviewed later that same day. Evidence concerning his statements
only was presented to his jury. Sanchez initially told officers he was with Mendez when
Mendez shot Reyes. He explained that he and Mendez had borrowed a gray four-door
car from Cruz and were cruising around when they saw Reyes walking down the street.
Mendez, who was driving, made a U-turn, pulled alongside Reyes, asked him, “What you
bang,” and then shot him eight times. Reyes fell to the ground and Mendez “took off.”
Mendez mistakenly believed Reyes was a Norteño. Sanchez was concerned he would be
blamed for the shooting because he loaded the gun, and his finger prints were on the gun
and the bullets. Sanchez denied having a gun or shooting at anyone that day.
        After a detective advised Sanchez that witnesses had identified him as the driver
and Mendez as the passenger, Sanchez admitted he was driving the car, and that he shot
Reyes eight times.4 He explained that Mendez said he wanted “to go shoot some
busters”5 and when Sanchez “rolled up on” Reyes, Mendez handed him the gun, and told


4 The detective acknowledged that this was a ruse, and that witnesses had not actually
identified Sanchez as the driver.
5   “Buster” is a derogatory term for a Norteño.

                                              5
him to shoot. Sanchez told Mendez he did not want to do it, and Mendez told him, “Do
it, before I take the gun away and shoot you.” Sanchez then shot Reyes eight times “[a]ll
over his body” and “took off.” Mendez told Sanchez he threw the gun away during a
high speed chase with police. Mendez said he was riding in a brown Honda during the
chase. Sanchez acknowledged he was a member of Vicky’s Town (VST), a Sureño gang,
and stated that other gang members threatened to kill him if he did not kill someone.
       Later, Sanchez was interviewed a second time while Mendez was present.
Mendez was instructed not to speak to Sanchez, and Mendez did as he was instructed.
Sanchez again admitted driving Cruz’s car and shooting Reyes. When he pulled
alongside Reyes, Mendez handed him a .22-caliber revolver and told him to shoot.
Sanchez had been a member of VST for seven years.
       Cruz’s father testified that in November 2006 Cruz drove a gray Ford Taurus. At
approximately 11:30 a.m. on November 15, 2006, the day of the shooting, he observed
two men arrive at his home, which he shared with Cruz, briefly go inside, and then leave
in Cruz’s car.
       On November 21, 2006, six days after the shooting, law enforcement found a
loaded .22-caliber revolver with a nine-round capacity next to the passenger side of a tan
or silver Honda that had been involved in a chase with the California Highway Patrol. A
ballistics expert testified that that two bullets recovered from Reyes’s body most likely
were fired from that gun.
       On November 30, 2006, two weeks after the shooting, a police officer had a
consensual encounter with defendants. Mendez was wearing blue shoes and a blue belt
with the number 13 on the buckle and had two Sureño tattoos (the roman numeral XIII
and the word “SUR”) on his left hand. He said he had been a Sureño for about a year.
Sanchez had VST and Sureño tattoos and said he was a Sureño and a member of VST, as
was Mendez.



                                             6
       A gang expert testified that in 2006, VST consisted of 188 members and was a
subset of the Sureño gang in Stockton since 1985. Both are criminal street gangs. They
identify with the number 13, the color blue, and the word “Sur.” Norteños are their
enemies and identify with the color red. Norteños wear a Mongolian hair style (a shaved
head with a ponytail in the back), and Sureños usually have shaved heads or close-cut
hairstyles. Another gang expert opined that defendants were both active Sureño and VST
gang members on the date Reyes was shot, that Reyes’s murder was perpetrated for the
benefit of, in association with, or at the direction of the Sureño/VST gang, and that Reyes
was shot because he was believed to be a Norteño. The expert explained that Reyes’s
murder would benefit the gang by instilling fear in the community and giving status to
the gang and the perpetrator within the gang, even if the victim was not a rival gang
member.
                                            II
                                       The Defense
       Sanchez’s defense was that he made a false confession and that Reyes was shot by
some Norteños. Sanchez called several witnesses to testify in his defense. Reyes’s
brother-in-law testified that shortly before the shooting, he saw a Ford Taurus slowly
drive past his house, where Reyes was living at the time. There were four occupants,
each of whom was wearing a red shirt and a red hat.
       Reyes’s niece, who was 15 years old at the time of the shooting, also saw a four-
door Ford Taurus drive past her home while she and Reyes were outside earlier that day.
The driver was a Hispanic man in his twenties with a Mongolian hair style and a red band
in his hair. There were two people in the two front seats and three people in the backseat,
and the driver appeared to be “mad-dogging” Reyes.
       Arthur Gunter, who lived near where the shooting occurred, observed a gray Ford
Taurus “flying past” immediately after the shots were fired. There were four Hispanic
men in the car and they were all wearing red. He identified Cruz as the driver and


                                             7
directed officers to Cruz’s home, where they observed what appeared to be the same gray
Ford Taurus Gunter observed after the shooting.
       Six months before Reyes was killed, Reyes’s cousin witnessed a Norteño confront
Reyes and ask Reyes “why he would spray paint [a] 13 in a Norteño area of town.”
       Mendez did not submit any evidence in his defense. During closing argument, his
counsel did not dispute that Mendez was present when Sanchez shot Reyes or that it was
his (Mendez’s) gun that was used to shoot Reyes; rather, he suggested that Mendez did
not know that Sanchez intended to shoot Reyes when he (Mendez) handed him the gun.
Mendez’s counsel argued that Mendez “should be a witness in this case, not a defendant.”
                                       DISCUSSION
                                            I
The Trial Court Properly Instructed the Jury on “Developmental Disability” at Sanchez’s
                                  Competency Hearing
       Sanchez first contends “[t]he trial court erred by including ‘developmental
disability’ in the jury instruction on incompetence, as [he] did not have a developmental
disability under state law, and the error misled the jury regarding [his] mental disorder, in
violation of [his] fourteenth amendment right to a fair trial of his competence to stand
trial.” We are not persuaded.
       Prior to trial, Sanchez’s attorney raised an issue concerning Sanchez’s competence
to stand trial. The trial court suspended proceedings, appointed Dr. John Chellsen, a
clinical psychologist, and Dr. Gary Cavanaugh, a psychiatrist, to evaluate Sanchez, and
scheduled a hearing on Sanchez’s competency. (§§ 1368, 1369.) A jury found Sanchez
competent to stand trial.
       Three doctors testified on Sanchez’s behalf at the competency hearing. Chellsen
concluded Sanchez was incapable of cooperating with counsel. He initially diagnosed
Sanchez with “mild mental retardation and mixed specific developmental disorders.”
One year later, after additional test results were made available, Chellsen determined that



                                              8
his “initial diagnosis . . . of mental retardation was erroneous,” and that Sanchez’s
“overall IQ score [was in] what’s called the borderline range, which is somewhere
between mentally retarded and low average. And so he would merit the diagnosis [of]
learning disorder, not otherwise specified.” When asked if “that disorder [is] recognized
in the psychiatric and the scientific community,” Chellsen responded, “It’s a recognized
diagnosis. It’s not as precise of one as mental retardation or a -- some other major
psychiatric disorders, but nonetheless, signifies impairment.” During cross-examination,
Chellsen was shown a videotape of Sanchez being interviewed by a detective and
thereafter observed that Sanchez “may have been less than candid and not evidencing his
best interviews with me.” Chellsen nevertheless concluded Sanchez was not competent
to stand trial.
       Dr. Roger Katz, a clinical psychologist retained by Sanchez, also testified on
Sanchez’s behalf. He evaluated Sanchez in June 2008 and opined that Sanchez was
“legally incompetent” at the time of the evaluation. Katz explained that while Sanchez’s
test scores “fell in the mildly retarded to the borderline range of intelligence,”
“[t]echnically [he] was not mentally retarded . . . because his nonverbal reasoning and
problem solving skills were in the normal range.” When asked to explain the difference
between mental retardation and a learning disorder, Katz stated, “Basically both mental
retardation and a learning disability fall in the general classification of a developmentally
[sic] disability.” On cross-examination Katz was shown evidence of a discussion
between Sanchez and his mother regarding a codefendant and the codefendant’s plea
deal. Katz found such evidence “reflected more of an understanding of the legal
situation” than he had previously observed, and that it “move[d] the needle a little bit
more in the direction that he might be competent.”
       Cavanaugh was the third doctor to testify on Sanchez’s behalf. Following his
initial evaluation, Cavanaugh concluded that Sanchez “was not able to rationally
cooperate with his attorney, and . . . not competent” to stand trial. He believed Sanchez’s

                                              9
intellectual functioning was “in the mentally retarded range” but was not sure “whether it
was a developmental disability . . . or whether it was acquired . . . .” After a follow-up
evaluation in August 2008, Cavanaugh determined that Sanchez had improved but was
still incompetent to stand trial. Thereafter, Cavanaugh “received a large amount of
material from the D.A.’s office,” including copies of Sanchez’s police interrogations,
recordings and transcripts of jail visits, and various letters written to and by Sanchez.
After reviewing those materials, Cavanaugh concluded Sanchez was “totally competent.”
       Dr. Gary Westcott, a clinical psychologist who had worked at Valley Mountain
Regional Center (VMRC) from 1986 to June 2007, testified for the prosecution. He
explained that mental retardation is a developmental disability. After reviewing a report
prepared by another doctor who was affiliated with VMRC, Westcott determined that
Sanchez did not meet the diagnostic criteria for support at VMRC. Specifically, he did
“not have a developmental disability as defined in California Statute,” nor did he meet
the criteria “for assigning a diagnosis of mental retardation.” Westcott did find that
Sanchez “had a very severe language based learning disability . . . .” However,
“[p]ersons whose handicapping condition is a result of a learning disability are
specifically excluded . . . from Regional Center services, and [Sanchez] was excluded on
that basis.” “[L]earning disabilities are recognized as disorders . . . .”
       During the jury instruction conference, Sanchez, through his counsel, objected to
the court instructing the jury in the language of CALCRIM No. 3451 to the extent the
instruction referenced “developmental disability,” arguing that “[t]here’s no evidence of
developmental disability,” and that he was not contending he had a developmental
disability; rather, he was proceeding on the theory that he was incompetent due to a
“mental disorder.” He also asserted that the instruction was confusing in that it could be
interpreted as stating that “developmental disability is a prerequisite to a finding of
incompetence, which is not correct.” Accordingly, he requested the court omit the
language concerning developmental disability in CALCRIM No. 3451. The prosecution

                                              10
opposed the request, noting that Sanchez had “two doctors come in here or he relied upon
two doctors that indicated that [he] was mentally retarded.” The trial court found that
there was significant evidence that Sanchez is mildly retarded and that the instruction
should be given with the developmental disability language intact. With respect to
Sanchez’s assertion that the instruction was confusing, the trial court disagreed, noting
that the instruction does not state that “you have to have a developmental disability to be
incompetent” and explaining that it intended to instruct the jury “that not every
instruction applies.”
       Thereafter, the trial court instructed the jury in the language of CALCRIM
No. 3451 as follows:
       “You must decide whether the defendant is mentally competent to stand trial.
That is the only purpose of this proceeding.
       “Do not consider whether the defendant is guilty or not guilty of any crime or
whether he was sane or insane at the time of the alleged crime or that any alleged crime
was committed.
       “The defendant is mentally competent to stand trial if he can do all of the
following:
       “1. Understand the nature and purpose of the criminal proceedings against him;
       “2. Assist, in a rational manner, his attorney in presenting his defense; and
       “3. Understand his own status and condition in the criminal proceedings.
       “The law presumes that a defendant is mentally competent. In order to overcome
this presumption, the defendant must prove that it is more likely than not that the
defendant is now mentally incompetent because of a mental disorder or developmental
disability.
       “A developmental disability is a disability that begins before a person is 18 years
old and continues or is expected to continue for an indefinite period of time. It must be a



                                               11
substantial handicap and does not include other handicapping conditions that are solely
physical in nature.
       “Examples of developmental disabilities include mental retardation and conditions
closely related to mental retardation or requiring treatment similar to that required for
mentally retarded individuals.”6
       “A trial court has a duty to instruct on general principles of law that are ‘closely
and openly connected to the facts before the court and that are necessary for the jury’s
understanding of the case.’ ” (People v. Moye (2009) 47 Cal.4th 537, 554.) Here, there
was evidence Sanchez had a developmental disability, and under the circumstances of
this case, an instruction addressing that issue was necessary for the jury’s understanding
of the case.
       Chellsen initially diagnosed Sanchez with mild mental retardation and “mixed
specific developmental disorders” and later found his overall IQ was somewhere between
mentally retarded and low average. While Katz concluded that Sanchez technically was
not mentally retarded, he noted that Sanchez’s test scores “fell in the mildly retarded to
the borderline range of intelligence . . . .” Katz also stated a learning disability, like
mental retardation, falls in the general classification of developmental disability. While
Sanchez ultimately decided not to argue that he was mentally retarded or otherwise
developmentally disabled, given the aforementioned evidence, the trial court did not err
in instructing the jury on how to evaluate the evidence presented.
       Contrary to Sanchez’s assertion, the instruction was not reasonably likely to
confuse the jury. Sanchez contends “[t]he inclusion and definition of ‘developmental
disability’ in CALCRIM No. 3451 would confuse a reasonable juror and at a minimum,




6 The challenged language tracks that of the applicable statutes. (See §§ 1367, 1369,
1370.1.)

                                              12
make [his] cognitive defects seem insignificant, as the testimony was clear that [his]
deficits did not rise to the level of a developmental disability under state law.”
       The jury was instructed, consistent with section 1367, that any mental
incompetency must be the result of a “mental disorder or developmental disability.”
(Italics added.) “We ‘credit jurors with intelligence and common sense’ [citation] and
presume they generally understand and follow instructions [citation].” (People v.
McKinnon (2011) 52 Cal.4th 610, 670.) We find that, if anything, the jury would have
been confused had the portions of the instruction referring to developmental disability
been excised given the evidence presented. We also note that Sanchez was free to argue
to the jury that his alleged incompetence stemmed from a mental disorder, and thus,
whether he was mentally retarded or otherwise suffered from a developmental disability
was not relevant to the jury’s determination. Indeed, his counsel did just that.
       On this record we have no trouble concluding that the trial court properly
instructed the jury regarding “developmental disability” pursuant to CALCRIM
No. 3451.
                                          II
   Any Potential Error in Admitting Evidence Mendez Was Present During Sanchez’s
               Second Interview with Law Enforcement Was Harmless
       Sanchez next contends that the admission of evidence that Mendez was present
and remained silent while Sanchez made statements implicating himself and Mendez in
Reyes’s murder was error under the Aranda-Bruton rule (People v. Aranda (1965) 63
Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476]
(Bruton)), and under the ruling of Crawford v. Washington (2004) 541 U.S. 36 [158
L.Ed.2d 177] (Crawford) because “any jury would have taken [Mendez’s] silence as
corroborative of [Sanchez’s] statements about the shooting and the involvement of both




                                             13
of them.”7 More specifically, Sanchez asserts that “Mendez’s silence corroborated and
endorsed [Sanchez’s] confession, which effectively made Mendez a witness against
[Sanchez], a witness [Sanchez] was unable to cross-examine because Mendez did not
testify at trial.” Sanchez raises an interesting issue; however, we need not reach it
because any error in admitting the challenged evidence was harmless under any standard.
       During the motions in limine, the prosecutor indicated she intended to introduce a
videotape of a “dual interview” of defendants. She explained that she would edit the
videotape such that the Mendez jury would be shown only the dialogue between the
detective and Mendez, and the Sanchez jury would only be shown the dialogue between
the detective and Sanchez. Sanchez objected, arguing that “the evidence . . . that the
codefendant [Mendez] is present and silent during the . . . dialogue between the detective
and [Sanchez] does create an Aranda Bruton [issue].” Sanchez suggested the prosecutor
present an audiotape of the interview rather than a videotape. The trial court disagreed,
explaining that Aranda-Bruton applies where the codefendant is a declarant, and Mendez
is not a declarant. The court also rejected Sanchez’s assertion that Mendez’s silence
amounted to an adoptive admission.


7 In Aranda, the California Supreme Court observed that when a confession of one
defendant incriminates a codefendant, it would not be possible for jurors to consider the
confession with respect to the confessing defendant and then ignore the statement with
respect to the codefendant. (Aranda, supra, 63 Cal.2d at p. 529.) Accordingly, the court
held that, as a matter of judicial procedure, when a confession of one defendant
implicates a codefendant, then the confession must be redacted to eliminate references to
the codefendant, or the confession must be excluded from evidence, or separate trials
must be granted. (Id. at p. 530.) In Bruton, the United States Supreme Court held that the
introduction of a confession of a defendant that implicates a codefendant violates the
codefendant’s constitutional right of cross-examination even if the jury is instructed to
disregard the confession in determining the codefendant’s guilt or innocence. (Bruton,
supra, 391 U.S. at p. 137 [20 L.Ed.2d at p. 485].) Crawford precludes the introduction
of out-of-court testimonial statements unless the witness is unavailable and the defendant
previously had an opportunity for meaningful cross-examination. (Crawford, supra, 541
U.S. at p. 59 [158 L.Ed.2d at p. 197].)

                                             14
       We need not decide whether the trial court erred in admitting the challenged
evidence because any error was harmless beyond a reasonable doubt. (People v.
Jennings (2010) 50 Cal.4th 616, 652.) Prior to the dual interview, Sanchez gave a
detailed confession in which he admitted driving the car and shooting Reyes. Moreover,
details of his confession were corroborated by other evidence concerning the type of gun
used (a .22-caliber revolver), what became of the gun (recovered following a high speed
chase involving a brownish Honda), and the car used in the shooting (Cruz’s gray Ford
Taurus). On this record, we conclude beyond a reasonable doubt that the jury would
have rejected Sanchez’s false confession defense and reached the same verdict had it not
learned that Mendez was present and remained silent during the second interview at
which Sanchez again confessed to driving the car and shooting Reyes. This is
particularly true where, as here, the prosecutor did not comment on Mendez’s silence at
anytime.


                                             III
                  Defendants’ Sentences on Count 2 Must Be Modified
       Defendants each contend their sentences for the gang enhancement on count 2
should be reduced from 10 to 5 years. Sanchez also contends that the trial court should
have stayed one of the 25-year-to-life firearm enhancements on count 2 pursuant to
section 12022.53, subdivision (f). We agree with both contentions and further find as to
Mendez only that the trial court should have stayed the gang enhancement on count 2
pursuant to section 12022.53, subdivision (e)(2).
       As previously discussed, both defendants were convicted in count 2 of shooting a
firearm from a vehicle pursuant to former section 12034, subdivision (c). As to Sanchez,
the trial court imposed the upper term of 7 years, plus two terms of 25 years to life for the
section 12022.53, subdivision (d) and subdivisions (d) and (e) enhancements, and 10
years for the section 186.22, subdivision (b)(1) enhancement. As to Mendez, the trial

                                             15
court imposed the upper term of 7 years, plus 25 years to life for the section 12022.53,
subdivisions (d) and (e) enhancement, and 10 years for the section 186.22, subdivision
(b)(1) enhancement. The court then stayed both defendants’ sentences on count 2
pursuant to section 654.
       The gang enhancement statute, section 186.22, subdivision (b)(1), provides in part
as follows:
       "Except as provided in paragraphs (4) and (5), any person who is convicted of a
felony committed for the benefit of . . . any criminal street gang . . . shall, upon
conviction of that felony, in addition and consecutive to the punishment prescribed for
the felony or attempted felony of which he or she has been convicted, be punished as
follows:
       “(A) Except as provided in subparagraphs (B) and (C), the person shall be
punished by an additional term of two, three, or four years at the court's discretion.
       “(B) If the felony is a serious felony, as defined in subdivision (c) of Section
1192.7, the person shall be punished by an additional term of five years.
       “(C) If the felony is a violent felony, as defined in subdivision (c) of Section
667.5, the person shall be punished by an additional term of 10 years.”
       Because the jury found that defendants violated section 12022.53 in the
commission of count 2, count 2 is a “violent” felony within the meaning of section 667.5,
subdivision (c)(22) (designating “[a]ny violation of Section 12022.53” as a “violent
felony”). Therefore, under section 186.22, subdivision (b)(1)(C), as the trial court found,
the additional punishment would be a fixed term of 10 years.
       However, section 1170.1, subdivision (f) provides: “When two or more
enhancements may be imposed for being armed with or using a dangerous or deadly
weapon or a firearm in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision shall not limit the



                                              16
imposition of any other enhancements applicable to that offense, including an
enhancement for the infliction of great bodily injury.”
       In People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, our Supreme Court held
that where a defendant is subject to a firearm enhancement and a gang enhancement
based on the use of a firearm, section 1170.1, subdivision (f) precludes imposition of both
enhancements.
       Here, defendants became eligible for the 10-year gang enhancement only because
of Sanchez’s firearm use, which use was charged and proved as provided in
section 12022.53. (§ 667.5, subd. (c)(22).) Thus, the firearm use resulted in additional
punishment not only under section 12022.53, but also under section 186.22,
subdivision (b)(1)(C). Based on the application of section 1170.1, subdivision (f), as
interpreted by our Supreme Court in Rodriguez, supra, 47 Cal.4th at pages 508-509,
defendants should have been sentenced to 5 years (not 10) for the gang enhancement (the
punishment for the enhancement absent the firearm element). (§ 186.22, subd. (b)(1)(B)
[providing for an additional five year term if the felony is “serious,” as defined in
§ 1192.7, subd. (c)]; 1192.7, subd. (c)(36) [making § 26100 (former § 12034) a serious
felony].) We shall modify defendants’ sentences on count 2 accordingly.
       We reject the People’s suggestion that no modification is necessary because the
trial court stayed defendants’ sentences on count 2 pursuant to section 654. As Sanchez
points out, should defendants’ convictions on count 1 be overturned at some point in the
future, their sentences on count 2 would no longer be stayed. Thus, the modification
sought here could have real significance.
       Sanchez also asserts that “the [trial] court should have stayed one 25-year-to-life
firearm enhancement under section 12022.53, subdivision (f).” That subdivision
provides in pertinent part: “Only one additional term of imprisonment under this section
shall be imposed per person for each crime. If more than one enhancement per person is
found true under this section, the court shall impose upon that person the enhancement

                                             17
that provides the longest term of imprisonment.” Here, the trial court imposed two
25-year-to-life terms under section 12022.53, subdivision (d) and subdivisions (d) and (e)
in sentencing Sanchez on count 2. One of those sentences must be stayed pursuant to
section 12022.53, subdivision (f). (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1126,
1129 [“the words ‘impose’ and ‘imposed,’ as used throughout subdivision (f) [of section
12022.53] . . . mean impose and then execute,” and “the Legislature intended the trial
court to stay, rather than strike, prohibited enhancements under section 12022.53”].) As
previously discussed, this is so even though the entire sentence on count 2 was stayed
pursuant to section 654 because in the event Sanchez’s conviction on count 1 is
overturned the sentence on count 2 will be executed.
      While not raised by Mendez, we note that section 12022.53, subdivision (e)(2)
provides in pertinent part: “An enhancement for participation in a criminal street
gang . . . shall not be imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or personally discharged a
firearm in the commission of the offense.” Here, the prosecution did not allege and the
jury did not find that Mendez personally used or personally discharged a firearm in the
commission of count 2. Accordingly, his sentence for the gang enhancement on count 2
must be stayed pursuant to section 12022.53, subdivision (e)(2).
      We shall reduce defendants’ sentences for the gang enhancement on count 2 from
10 to 5 years, stay Sanchez’s sentence for the section 12022.53, subdivisions (d)
and (e)(1) firearm enhancement on count 2 pursuant to section 12022.53, subdivision (f),
and stay Mendez’s sentence for the gang enhancement on count 2 pursuant to section
12022.53, subdivision (e)(2).




                                            18
                                          IV
The Trial Court’s Handling of the Jury’s Readback Request Did Not Violate Mendez’s
Constitutional Rights and Any Possible Violation of His Statutory Rights Was Harmless
       Mendez contends the trial court deprived him of his federal and state constitutional
rights to due process and the presence of counsel and violated his statutory rights under
sections 977 and 1138 when it allowed testimony to be read back to the jury when neither
he nor his attorney was present. As we shall explain, there was no violation of Mendez’s
constitutional rights and any possible violation of his statutory rights was harmless.
       During deliberations, the jury requested a readback of Ming and Gunter’s
testimony. The trial court advised the parties of the request and asked if Mendez was
willing to waive his appearance. Mendez responded that he was not willing to waive his
appearance. Citing People v. McCoy (2005) 133 Cal.App.4th 974, the trial court advised
Mendez that he did not have a right to be present and indicated its intent to send the court
reporter into the jury room to read the requested testimony. Prior to doing so, the court
admonished jurors that they could speak to the court reporter “only for one purpose and
that is concerning the mechanics of reading [the testimony] back. In other words, ‘Could
you read that again? Could you say that word again?’ But do not, obviously you can’t
say, ‘What did the witness mean by that?’ That’s for the jury to decide.”
       The United States Supreme Court has never held that allowing a readback of
witness testimony outside the presence of a defendant and his attorney is a violation of
the federal Constitution. (See People v. McCoy, supra, 133 Cal.App.4th at p. 982.)
California Supreme Court decisions that have considered the issue have uniformly held
there is no federal or state constitutional violation when a readback occurs outside the
presence of a defendant or his attorney. (Id. at pp. 982-983; citing, e.g., People v. Cox
(2003) 30 Cal.4th 916, 963 [“rereading of testimony is not a critical stage of the
proceedings”], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22, and People v. Pride (1992) 3 Cal.4th 195, 251 [no violation of a defendant’s



                                             19
rights to counsel and due process even though “no one was present (the court, counsel, or
defendant) to monitor or report the readback”].) The fact that Mendez refused to “waive
his appearance” at the readback does not change the equation. While the better practice
would have been to conduct the readback in Mendez’s presence given his apparent desire
to be present, there was no constitutional violation in the court’s failure to do so.
       Mendez also asserts that the readback of testimony here violated his statutory
rights under sections 977 and 1138.
       Section 977 provides in pertinent part: “In all cases in which a felony is charged,
the accused shall be present at the arraignment, at the time of plea, during the preliminary
hearing, during those portions of the trial when evidence is taken before the trier of fact,
and at the time of the imposition of sentence. The accused shall be personally present at
all other proceedings unless he or she shall, with leave of court, execute in open court, a
written waiver of his or her right to be personally present . . . .” (§ 977, subd. (b)(1).)
       Mendez’s absence from the readback of the witnesses’ testimony violated
section 977, subdivision (b)(1), because Mendez did not execute in open court a written
waiver of his right to be personally present. (People v. Avila (2006) 38 Cal.4th 491, 598.)
“But the error was ‘statutory only and thus “is reversible only if it is reasonably probable
the result would have been more favorable to defendant absent the error.” [Citation.]’
[Citation.] Because [Mendez] provides no basis on which we could conclude the result
of his trial would have been different had he [or his counsel] been present at the readback
[citation], we find the violation of section 977 was harmless.” (Ibid.)
       Section 1138 provides, “After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to be informed on any
point of law arising in the case, they must require the officer to conduct them into court.
Upon being brought into court, the information required must be given in the presence of,
or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they
have been called.” “Although the primary concern of section 1138 is the jury’s right to

                                              20
be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s
right to a fair trial conducted ‘ “substantially [in] accord[ance with] law.” ’ [Citations.]”
(People v. Frye (1998) 18 Cal.4th 894, 1007, overruled on other grounds in People v.
Doolin, supra, 45 Cal.4th at p. 421, fn 22.) As previously discussed, however, the trial
court’s handling of the readback did not violate Mendez’s right to a fair trial, and any
violation of his statutory rights was harmless.
                                             V
                   The Trial Court Properly Instructed the Jury on Flight
       Mendez next contends the flight instruction given by the trial court (CALCRIM
No. 372) impermissibly lowered the burden of proof and was not supported by substantial
evidence. We disagree with both contentions.
       “On review, we examine the jury instructions as a whole, in light of the trial
record, to determine whether it is reasonably likely the jury understood the challenged
instruction in a way that undermined the presumption of innocence or tended to relieve
the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.”
(People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
       Over Mendez’s objection, the trial court instructed the jury with CALCRIM No.
372 as follows: “If the defendant fled immediately after the crime was committed, or
after he was accused of committing the crime, 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, the evidence that the
defendant fled or tried to flee cannot prove guilt by itself.”
       Mendez asserts “the flight instruction undermined the presumption that [he] lacked
the requisite mental state and thereby relieved the prosecution of the burden to prove the
offenses beyond a reasonable doubt and deprived [him] of a jury verdict” because it
presumes the crime was committed. He also observes that “CALCRIM No. 372 varies
significantly from the flight instruction contained within Penal Code section 1127c.” We


                                              21
rejected identical arguments in People v. Paysinger, supra, 174 Cal.App.4th at
pages 30-31, and see no reason to revisit that decision here.
       Mendez also asserts there was no substantial evidence to support giving the flight
instruction because “[m]erely being driven from the scene” did not constitute flight, and
“[g]iven the frequency of [his] contact with law enforcement officers his flight [eight
months after the shooting] cannot logically be attributed to a consciousness of guilt for
the shooting . . . .”
       “ ‘In general, a flight instruction “is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.” ’ [Citations.] Evidence that a defendant left
the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a
purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the
prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid
arrest, only that a jury could find the defendant fled and permissibly infer a consciousness
of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
       Here, the record supported the inferences for the flight instruction. Neighbors
reported hearing tires squealing and seeing a car “flying down the street” immediately
after the shooting. Mendez himself told officers that after the shooting, he and Sanchez
took off “to get away.” That Mendez was not driving the car was a fact for the jury to
weigh in light of the permissive language of the instruction. Moreover, the circumstances
gave rise to an inference of consciousness of guilt. Mendez did not attempt to help
Reyes, nor did he attempt to call for or seek assistance. From this evidence, the jury
could conclude that the circumstances of Mendez’s departure evidenced his guilt as an
aider and abettor in the shooting. (People v. Abilez (2007) 41 Cal.4th 472, 521-522 [jury
can infer guilt when defendant chose not to stay in house where victim killed]; People v.
Jackson (1996) 13 Cal.4th 1164, 1226 [the jury reasonably may infer guilt from evidence
that the defendant ran from the scene of the murder down the street to a vehicle and then

                                            22
drove home], abrogated on other grounds as stated in McGee v. Kirkland (C.D. Cal.
2009) 726 F. Supp. 2d 1073, 1080.)
       There was also evidence Mendez fled out the back door of his home and hid in the
backyard when law enforcement arrived to execute a search warrant several months after
the shooting. To the extent evidence was presented that would support a finding that
Mendez fled was for reasons unrelated to Reyes’s shooting, those were facts for the jury
to consider in determining the meaning of Mendez’s conduct.8
       On this record, the jury reasonably could infer that Mendez’s flight from the scene
of the crime or from his home when law enforcement arrived to execute a search warrant
reflected consciousness of guilt. (People v. Abilez, supra, 41 Cal.4th at p. 522.)
       In any event, any possible error was manifestly harmless. The instruction did not
figure in the prosecutor's closing argument. Moreover, the instruction did not posit the
existence of flight; both the existence and significance of flight were left to the jury. (See
People v. Crandell (1988) 46 Cal.3d 833, 870.) It is not reasonably probable a verdict
more favorable to Mendez would have resulted had the instruction not been given. (Ibid.)




8 Mendez’s assertion that “the trial court should have fashioned the instruction . . . to
make it clear that . . . any consciousness [of guilt] may have flowed from the commission
of other offenses” is not well taken. Jurors were properly instructed that it was up to
them to decide whether Mendez fled or tried to flee, and that if they concluded that he
had, it was up to them “to decide the meaning and importance of that conduct.” To the
extent Mendez offered evidence that he ran out the back door of his home when law
enforcement arrived for reasons unrelated to Reyes’s shooting, those were circumstances
for the jury to consider in evaluating the meaning and importance of his conduct.

                                             23
                                           VI
                   Defendants’ Sentences on Count 1 Must Be Modified
       Mendez contends, and the People concede, that his sentence of life without the
possibility of parole on count 1 for the special circumstance murder of Reyes is
unauthorized because he was just 15 years old at the time of the shooting. We agree.9
       Section 190.5 provides in pertinent part: “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more special
circumstances enumerated in Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age of 18 years at the time
of the commission of the crime, shall be confinement in the state prison for life without
the possibility of parole or, at the discretion of the court, 25 years to life.” (§ 190.5,
subd. (b).) However, “[f]or juveniles under 16 who were 14 or 15 when the crime was
committed, a life term without possibility of parole is not permitted, leaving a term of 25
years to life with possibility of parole.” (People Demirdjian (2006) 144 Cal.App.4th 10,
17.)
       Mendez was 15 years old at the time of the murder. Accordingly, his sentence of
life without the possibility of parole is unauthorized. The People request that “the case be
remanded for resentencing, thus giving the trial court an opportunity to reevaluate the
sentence in accordance with section 190.5.” We see no need to remand the case because
the 25-year-to-life sentence on the substantive offense as well as the 25-year-to-life
sentence on the firearm enhancement are mandatory.
       In addition, we directed the parties to submit supplemental letter briefs addressing
whether the trial court erred when it “merged” defendants’ sentences of 25-year-to-life




9 Because we conclude that the life without the possibility of parole sentence is
unauthorized we need not address Mendez’s additional argument that the sentence
constitutes cruel and unusual punishment.

                                              24
for the firearm enhancement into the sentence for the substantive offense on Count 1. All
responded that the trial court had erred and that defendants’ sentences for the firearm
enhancement should have been imposed consecutively. We agree. First, the merger
doctrine does not apply to enhancements. (See People v. Sanders (2003) 111
Cal.App.4th 1371, 1373-1374.) Moreover, section 12022.53, subdivision (d) expressly
provides that the defendant “shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.” (Italics added; see also Cal. Rules
of Court, rule 4.405(3) [defining “enhancement” as “an additional term of imprisonment
added to the base term”]; see also People v. Kim (2011) 193 Cal.App.4th 1355,
1362-1363 [holding that section 12022.53, subdivision (d) “triggers a mandatory
consecutive 25-year-to-life sentence,” which the trial court has no discretion to modify].)
       Accordingly, we shall modify Mendez’s sentence on count 1 in pertinent part as
follows: 25 years to life in state prison for the special circumstance murder, plus a
consecutive 25 years to life for the section 12022.53, subdivisions (d) and (e)
enhancement. We shall modify Sanchez’s sentence on count 1 in pertinent part as
follows: life without the possibility of parole for the special circumstance murder, plus a
consecutive 25 years to life for the section 12022.53, subdivision (d) enhancement.
                                         VI
The Trial Court Properly Imposed a Court Facilities Assessment Pursuant to Government
                                 Code Section 70373
       Finally, Mendez contends the trial court erred in imposing a court facilities
assessment because the statute authorizing the assessment, Government Code section
70373, was enacted after the date of his crimes. We disagree.
       Government Code section 70373, provides in pertinent part: “To ensure and
maintain adequate funding for court facilities, an assessment shall be imposed on every
conviction for a criminal offense, including a traffic offense . . . . The assessment shall
be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in



                                             25
the amount of thirty-five dollars ($35) for each infraction.” (Gov. Code, § 70373, subd.
(a)(1), added by Stats. 2008, ch. 311, § 6.5.) The effective date of the statute is
January 1, 2009. (See Stats. 2008, ch. 311.)
       Mendez committed the subject crimes on November 15, 2006. The jury convicted
him on December 7, 2009. As part of his sentence, the trial court imposed a $120 court
facilities assessment ($30 for each of his four felonies).
       We previously rejected a claim that this assessment violates ex post facto
principles, finding “the assessment is not punitive because it was adopted as one
component of the effort to address a budget shortfall; it is not denominated a “fine”; the
amount per conviction is small; and the amount is not dependent on the seriousness of the
offense.” (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413; see also People v.
Lopez (2010) 188 Cal.App. 4th 474, 479; People v. Fleury (2010) 182 Cal.App.4th 1486,
1492–1494; People v. Davis (2010) 185 Cal.App.4th 998, 1000–1001; People v. Phillips
(2010) 186 Cal.App.4th 475, 477–479.) We see no reason to revisit those decisions here.
       Because Mendez was convicted following the enactment of the statute, the trial
court properly ordered him to pay the assessment.
                                       DISPOSITION
       Sanchez’s sentence is modified as follows: on count 1, life without the possibility
of parole, plus a consecutive 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d), plus an additional 25 years to life for the firearm
enhancement under section 12022.53, subdivisions (d) and (e), stayed pursuant to
section 654, plus an additional term of life with a minimum parole eligibility of 15 years
for the gang enhancement, stayed pursuant to section 654. As to count 2, the upper term
of 7 years, plus a consecutive 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d), plus an additional 25 years to life for the firearm
enhancement under section 12022.53, subdivisions (d) and (e), plus 5 years for the gang
enhancement. Then entire sentence on count 2 is stayed under section 654, and the

                                             26
firearm enhancement under section 12022.53, subdivisions (d) and (e) is also stayed
under section 12022.53, subdivision (f). As to count 4, the upper term of 3 years, stayed
pursuant to section 654. The judgment is affirmed as modified.
       Mendez’s sentence is modified as follows: on count 1, 25 years to life, plus a
consecutive 25 years to life for the firearm enhancement under section 12022.53,
subdivisions (d) and (e), plus an additional term of life with a minimum parole eligibility
of 15 years for the gang enhancement, stayed pursuant to section 654. As to count 2, the
upper term of 7 years, plus an additional 25 years to life for the gang enhancement under
section 12022.53, subdivisions (d) and (e), plus 5 years for the gang enhancement. The
entire sentence on count 2 is stayed pursuant to section 654 and the firearm enhancement
is also stayed under section 12022.53, subdivision (e)(2). As to count 3, the upper term
of 7 years, plus an additional term of life with a minimum parole eligibility of 15 years
for the gang enhancement. As to count 4, the upper term of 3 years. The entire sentences
on counts 3 and 4 are stayed under section 654. The judgment is affirmed as modified.
       The trial court is directed to prepare amended abstracts of judgment to reflect
these modifications and to forward copies of the same to the California Department of
Corrections and Rehabilitation.



                                             BLEASE                   , Acting P. J.


We concur:


         NICHOLSON                 , J.


         ROBIE                     , J.




                                            27
