Filed 5/27/15 P. v. Mendoza CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067023
         Plaintiff and Respondent,
                                                                               (Super. Ct. No. BF138387)
                   v.

MARK ANTHONY MENDOZA, SR.,                                                               OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook
A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Mark Anthony Mendoza, Sr., a Varrio Bakers criminal street gang member, was
convicted of the first-degree, special-circumstance murder of Roman Fernandez, a
member of the rival Colonia Bakers gang. He was also found guilty of several additional
charges. Mendoza received a sentence that included a term of life without the possibility
of parole. He now contends: (i) the trial court erred in failing to give, on its own motion,
a jury instruction stating that the jury must decide whether two prosecution witnesses
were accomplices and, if so, must view their testimony with caution and must not convict
Mendoza solely on the basis of their uncorroborated testimony; (ii) the trial court erred
when it refused to try gang enhancements separately in a bifurcated trial and failed to
sever a charge of being an active participant in a gang; (iii) the trial court erred by failing
to instruct the jury that the charge of being an active gang participant required proof that
Mendoza acted, on some occasion, in concert with at least one other gang member, and in
any event there was insufficient evidence to prove the gang participation charge because
it was not shown that Mendoza acted in concert with another gang member; and (iv) there
was insufficient evidence to prove the gang enhancements or the gang-murder special
circumstance.
       The People concede, and we agree, that there was insufficient evidence to prove
that Mendoza acted in concert with another gang member. Therefore, under People v.
Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), Mendoza could not properly be convicted
of being an active gang participant. We also conclude that there was insufficient
evidence to support the gang enhancements on the charges of being a felon in possession
of a gun and ammunition. The gun and ammunition in question were not shown to be
connected with the murder and not otherwise shown to be possessed for the benefit of
Mendoza’s gang. We reject the remainder of Mendoza’s arguments.
       The People assert, and Mendoza does not dispute, that the record reflects
sentencing errors. Specifically, the court made findings that supported a number of
sentence enhancements based on prior offenses but failed to include those enhancements
in the sentence it imposed.
       We reverse the conviction on count 5 (being an active gang participant) and the
gang enhancements on counts 3 and 4 (being a felon in possession of a firearm and

                                              2.
ammunition). We remand to allow the trial court to recalculate Mendoza’s sentence in
light of these reversals and to correct the sentencing errors. We affirm the judgment in
all other respects.
                         FACTS AND PROCEDURAL HISTORY
       At a Bakersfield bar called Stella’s Sandtrap, sheriff’s deputies and an ambulance
arrived in response to a reported shooting around 1:50 a.m. on August 21, 2011. They
found Roman Fernandez lying in the parking lot with a gunshot wound to his chest, not
breathing, and with no pulse. Fernandez was taken to a hospital, where he was
pronounced dead at 2:12 a.m. An autopsy showed that he was killed by a single shot that
entered the left side of his chest, exited near his right armpit, and damaged his heart,
liver, diaphragm, and right lung.
       The district attorney charged Mendoza with the crime. The information alleged
five counts: (1) first-degree premeditated murder (Pen. Code, §§ 187, subd. (a), 1891);
(2) discharging a firearm at a person from a motor vehicle (former § 12034, subd. (c));
(3) being a felon in possession of a firearm (on a separate occasion—Aug. 25, 2011, four
days after the shooting) (former § 12021, subd. (a)(1)); (4) being a felon in possession of
ammunition (also on Aug. 25, 2011) (former § 12316, subd. (b)(1)); and (5) actively
participating in a criminal street gang (§ 186.22, subd. (a)). In connection with count 1,
the information alleged the special circumstances that the murder was committed by
firing a gun from a motor vehicle (§ 190.2, subd. (a)(21)) and that it was committed by an
active participant in a criminal street gang to further the gang’s activities (§ 190.2,
subd. (a)(22)). In connection with counts 1 through 4, the information alleged, for
sentence-enhancement purposes, that the offenses were committed to benefit a criminal
street gang (§ 186.22, subd. (b)(1)). Also for sentence-enhancement purposes, the
information alleged in connection with counts 1 and 2 that Mendoza personally fired a

       1Subsequent    statutory references are to the Penal Code unless otherwise noted.


                                              3.
gun, causing death (§ 12022.53, subd. (d)). For count 1, the information alleged that
Fernandez was killed by a gun fired from a motor vehicle (§ 12022.55). Finally, in
connection with all counts, the information alleged that Mendoza had previously been
convicted of two robberies and one count of possessing a controlled substance for sale.
For sentencing purposes, the robberies were alleged to be serious felonies (§ 667,
subd. (a)), strikes under the Three Strikes Law (§§ 667, subds. (c)-(j), 1170.12), and
offenses for which Mendoza had served a prison term after which he did not remain free
of felony convictions for five years (§ 667.5, subd. (b)). The possession-for-sale
conviction was also alleged to be an offense for which Mendoza served a prison term
after which he did not remain free of felony convictions for five years. The
section 12022.55 enhancement was later voluntarily dismissed by the prosecution, and
count 1 was amended during trial to add an allegation that Mendoza personally used a
firearm (§ 12022.5, subd. (a)).
       At trial, two witnesses testified that they were in a pickup truck with Mendoza
when Mendoza fired a gun through the window at Fernandez. These witnesses were
Gabriel Ramirez (we will refer to Gabriel and Sandra Ramirez by their first names to
avoid confusion) and Mark Mendoza, Jr. Mark Mendoza, Jr., is Mendoza’s son. (To
avoid confusion, we will refer to him as Mark, Jr.) Gabriel is a cousin of Mark, Jr.’s,
girlfriend. Gabriel testified that at closing time, at the end of a night of drinking at
Stella’s Sandtrap, he, Mark, Jr., and Mendoza got into a four-door truck. Mendoza was
in the right front seat, Gabriel was in the right rear seat, and Mark, Jr., was the driver.
The truck began to back up, and a Hispanic man with tattoos on his face walked up to it
on the passenger side. When the man was within a few feet of the truck, Gabriel leaned
back to go to sleep. His window was open. He heard a loud pop that made his ears ring.
He saw a flash and heard the man outside the truck scream. Then he saw a gun, held by
Mendoza, pointing out the right front window. A rag was covering Mendoza’s hands.
Mendoza brought his hands back inside and the truck sped away. They drove to the

                                              4.
home of Eva Soto, who at the time of trial was Mendoza’s fiancée. (Gabriel thought it
was Mendoza’s house, but Soto testified that Mendoza was not living there.)
       Mark, Jr., testified that he, his father, and Gabriel got into the truck to leave
Stella’s Sandtrap. Mark, Jr., who had had three or four beers, was driving. Mendoza was
in the front passenger seat, and Gabriel was behind Mendoza in the right rear seat. As
they got in, Mendoza said he wanted to fight Roman Fernandez because of an incident
earlier in the evening (described in more detail below) between Gabriel and a woman
who was part of a group that included Fernandez. Mark, Jr., pleaded with Mendoza to
just come home. Mark, Jr., backed the truck out of its parking space and then stopped,
because he thought Mendoza was about to get out and fight. Instead, Mark, Jr., heard a
pop and saw a flash on his right, where Mendoza was sitting. Mark, Jr., did not see a
gun, but he saw Mendoza drawing his hands, which were covered with a shirt, back into
the truck through the window. Mark, Jr., was convinced Mendoza had shot someone, but
he admitted he did not see it happening. Gabriel’s window was closed. Mark, Jr., drove
to Soto’s house.
       The jury was shown video footage taken by a surveillance camera aimed at the
parking lot of Stella’s Sandtrap. The video is dark, and the events in question take place
a considerable distance from the camera, toward the back of the parking lot. A pickup
truck can be seen backing out of a parking space and then stopping. The right rear door
opens, someone gets in, and the door closes. Then another person walks up to the truck
on the passenger side. Bystanders suddenly look or move toward the truck. The truck
pulls away quickly and a person falls to the ground.
       Several witnesses at trial described events that led up to the shooting. Rosemary
Delarosa, who was Mark, Jr.’s, girlfriend, testified that she went to Stella’s Sandtrap on
the night of the shooting with Mark, Jr., Gabriel, and Sandra Ramirez. Gabriel and
Sandra were siblings; they were also cousins of Delarosa. They arrived around 10:00
p.m. Mendoza and Soto joined them about 20 minutes later. Delarosa got drunk.

                                              5.
Around midnight, a woman threw a pitcher of beer at the group. At the time, Delarosa
did not know what prompted the woman to do this. At closing time, the six companions
left the bar together. The men got in Delarosa’s truck and the women in Soto’s car.
Mendoza told Delarosa to ride in Soto’s car.
      Gabriel, in his testimony, explained why the beer was thrown. While drunk, he
tapped a woman on the rear end with his foot “to get her attention.” She became angry
and threw the beer. Delarosa and Sandra argued with the woman who threw the beer.
Fifteen or 20 minutes later, Delarosa and Sandra persuaded Gabriel that he ought to
leave. Mark, Jr., and Sandra drove him to Sandra’s house. When they got there,
however, Gabriel decided he was being wrongly punished when he had not done anything
wrong; he insisted on going back. When he got back, a man approached him and asked
in a “weird” way who he was. The man was Hispanic and had tattoos on his face.
      Mark, Jr., testified that Mendoza told him Roman Fernandez had been talking with
the woman who threw the beer. Mendoza told Mark, Jr., he wanted to fight Fernandez.
      Eva Soto testified that the woman whom Gabriel tapped with his foot was with
some men, one of whom had “Colonia” tattooed on his face. The Colonia Bakers are a
criminal street gang in Bakersfield. Mendoza, Soto’s boyfriend, had many tattoos on his
body, including some saying “Varrio.” The Varrio Bakers are another criminal street
gang in Bakersfield. Soto had been with Mendoza for 18 years and had not seen any new
tattoos on him during the last 10 years. Mendoza was diagnosed with leukemia in 2007
and was receiving chemotherapy.
      At closing time, Soto left in her car with Delarosa and Sandra. She was drunk.
They stopped at a supermarket to get more beer, then drove to Soto’s house.
      Sandra testified that she, too, was drunk at Stella’s Sandtrap on the night of the
shooting. She also described leaving the bar in Soto’s car with Soto and Delarosa,
buying beer, and proceeding to Soto’s house.



                                            6.
       Daniel Garduno, a customer at Stella’s Sandtrap on the night of the shooting,
testified about interactions he had with Mendoza there. Garduno said he was a former
member of the Varrio Bakers and had agreed to testify in exchange for the dismissal of
pending charges. He had the letters VB tattooed on his face and other gang tattoos
elsewhere on his body. He also said he had terminal cancer of the spine and had been
told shortly before the time of trial that he had six to eight months to live.
       Garduno testified that, as he stood at the bar, played pool and danced, he was
approached a number of times by a man who had a tattoo on his forehead labeling him a
member of the rival Colonia Bakers gang. The man was called Negro and he asked
Garduno if he knew where he was and whether he was comfortable. Stella’s Sandtrap
was in Colonia Bakers territory, according to Garduno. Garduno understood Negro to be
expressing disrespect to him as a rival, but Garduno did not react, since he was no longer
an active Varrio Bakers member. Garduno did tell Negro he was from the Varrio Bakers,
however.
       Mendoza also approached Garduno at Stella’s Sandtrap and introduced himself as
Huero from Varrio Bakers. They shook hands and Garduno felt comfortable knowing a
Varrio Bakers member was present. Later, Mendoza approached again, upset, and told
Garduno some men were “rubbing on his wife’s friends.” Mendoza pointed the men out
to Garduno. They were Colonia Bakers members. Garduno told Mendoza not to worry.
He said, “If they start tripping, I’m right here.” “Tripping” meant acting out or behaving
disrespectfully. As he was leaving for the night, Garduno saw Mendoza again. Mendoza
asked Garduno if he was leaving. Garduno said yes. Mendoza said, “[W]ell, I got the
fuska,” which was a term for a gun. He showed the gun to Garduno. Garduno asked
whether Mendoza had the gun because “[t]hese fools are still tripping.” Mendoza said
yes. Garduno said he would remain, but he did not. Garduno was concerned that
someone might have told Mendoza that Garduno was a gang dropout and that Mendoza
might use the gun on Garduno.

                                              7.
       The jury was shown another surveillance video from the parking lot of Stella’s
Sandtrap. Garduno identified one man in the video as himself and another as Mendoza.
Mendoza and Garduno face one another briefly and Mendoza quickly removes a hand
from his pants pocket and puts it back in. Garduno testified that the video showed the
moment when Mendoza revealed the gun. The gun is not visible in the video. Delarosa
testified that she remembered seeing Mendoza speaking with a man who had a tattoo on
his face.
       Mendoza’s five companions also testified about events following the shooting.
Gabriel testified that he, Mendoza, and Mark, Jr., drove to Soto’s house and that the three
women arrived there also. Gabriel did not speak with any of them about the shooting.
Mendoza “had told me to keep my mouth shut or he would peel my cap back, too,”
Gabriel testified. Gabriel took this to mean Mendoza would shoot him. Gabriel left the
house and did not speak to Mendoza again. Three days later, someone in a car followed
Gabriel and his daughter to church. Gabriel was afraid, so when he got inside, he asked
the pastor for the phone number of a police officer who attended the church. From the
officer, he learned that it was sheriff’s deputies who had followed him. Gabriel decided
to tell the story of the shooting to the deputies. At his own request, Gabriel was placed in
the witness-protection program.
       Mark, Jr., testified that after he heard the shot and began driving away, he asked
his father what had happened. Mendoza told him just to keep driving. When they arrived
at Soto’s house, Mendoza went into the garage and came back out after about five
minutes. Later, on the patio, Mark, Jr., heard Mendoza and Gabriel arguing about
something Gabriel had said to Soto. Mendoza told Gabriel to be quiet. Mark, Jr.,
discussed the shooting with Mendoza, Delarosa, Gabriel, and Sandra.
       Mark, Jr., was arrested as a suspect in the shooting. He was held for four days,
during which he did not tell police what he had seen. A week after being released, he



                                             8.
went to the police and told them his father shot Fernandez. He was not promised that he
would not be charged.
       Delarosa testified that as she, Soto, and Sandra were driving away from Stella’s
Sandtrap at closing time and heading for the supermarket to buy beer, she heard a pop
like a firecracker. She could not tell where it came from. When they got to Soto’s house,
Mark, Jr., and Gabriel did not tell her anything about what happened. Mark, Jr., cried
and said she did not need to know and it was none of her business. He did, however, tell
her he heard a shot and his ear was ringing. Later, after being released from custody,
Mark, Jr., finally told Delarosa that Mendoza shot someone.
       Sandra testified that, after they all arrived at Soto’s house after leaving Stella’s
Sandtrap, she heard Mendoza arguing with Gabriel. Mendoza “told my brother Gabriel I
should split your wig like I did to the other fool.” Mendoza also said “that when he shot
the guy, he shot him from the side, that he barely missed him.”
       Eva Soto testified that when she and the others came to her house after leaving
Stella’s Sandtrap, there was an argument, but it had nothing to do with the shooting. She
argued with Gabriel over Gabriel’s “disrespectful,” “obnoxious,” and “out of control”
drunken behavior. She did not hear Mendoza threatening anyone. Soto did not know
about the shooting at all that night.
       The prosecution presented evidence about the discovery of a gun and some
ammunition in Soto’s house. Detective James Newell testified that he searched Soto’s
garage and found a .380-caliber Bersa handgun among some clothes in a cardboard box.
Seventeen bullets of a different caliber (.22) were found in the same place. Soto testified
that the gun did not belong to her or her children, and she did not know to whom it
belonged. Ramon Gallardo Garcia, a resident of Arvin, testified that the same gun was
stolen from his home in June 2010. A criminalist testified that he tested swabs taken
from the gun for DNA and compared the results with a sample of DNA taken from
Mendoza. DNA from the trigger had at least two contributors. One contributor had a

                                              9.
profile shared by Mendoza which matched the profile of one in 5.4 million Hispanic
people.
       The prosecution played for the jury a recording of a telephone conversation
between Mendoza and Soto that took place while Mendoza was in jail. During this
conversation, Soto said, “Well they, they found the other gun out in Arvin and they found
bullets that [Audi] got from her dad’s house. Remember those ones? Where were those
at?” “They were right there,” Mendoza replied, “[w]ith the gun.” Audi is Soto’s
daughter. Soto testified that Audi’s father (who is not Mendoza) gave Audi the bullets
that were found in the garage. Soto also testified that she referred to Arvin when
describing the gun the officers found because one of the officers had said something
about Arvin at the time of the search.
       Officer Shane Shaff of the Bakersfield Police Department testified as an expert on
criminal street gangs. He opined that the Varrio Bakers are a criminal street gang
engaged in a pattern of criminal gang activity, with primary activities of narcotics sales,
shootings, stabbings, murder, and auto theft. He based this opinion on his numerous
contacts with and arrests of gang members in Bakersfield, including Varrio Bakers
members. He also relied on several specific convictions of predicate offenses committed
by Varrio Bakers members. The primary rivals of the Varrio Bakers are the Colonia
Bakers and the Okie Bakers.
       Shaff also opined that Mendoza was an active participant in the Varrio Bakers at
the time of the shooting. For this opinion, Shaff relied on several factors: Garduno had
testified that he and Mendoza were both Varrio Bakers members. Mark, Jr., said
Mendoza was a member. There were five offense reports in which Mendoza was
described as participating in offenses Shaff considered to be characteristic gang activities
or in which Mendoza claimed to be a Varrio Bakers member. Mendoza had several gang
tattoos on his chest, stomach, hand and legs, including some that referred specifically to



                                             10.
the Varrio Bakers. Based on similar information, Shaff opined that Fernandez was a
member of the Colonia Bakers at the time of the shooting.
          The prosecutor asked Shaff the following question:

          “An active participant of the Varrio Bakers arrives at a bar that is within the
          Colonia Baker territory. While in that bar he leaves the bar and goes and
          locates a firearm, comes back and shows that firearm to another person he
          believes to be part of his same gang, the Varrio Bakers, 20 minutes prior to
          the shooting. The known active participant of the Varrio Bakers exits the
          bar with some family members, enters a vehicle, and upon a Colonia Baker
          coming alongside that vehicle shoots that Colonia Baker criminal street
          gang member.

                 “Do you have an opinion as to whether or not that incident is for the
          benefit of the Varrio Bakers criminal street gang?”
          Shaff’s opinion was that it was. He said the shooting would benefit the gang by
boosting the reputation of the gang and the member and instill fear in rival gangs and the
public.
          Mendoza testified in his own defense. In his telling, the story of his night at
Stella’s Sandtrap was as follows: When he and Soto arrived, they sat down and the man
he later learned was Roman Fernandez was sitting next to them. Fernandez had
“Colonia” tattooed on his forehead. Later, near the pool tables, Soto saw a friend of hers
who was with Garduno. They spoke to the friend, who introduced Garduno as Kiki.
Garduno asked Mendoza if he was “from the Varrio.” Mendoza said he “used to be.”
          At one point, Mendoza and Soto left the bar, drove to an ATM, and returned. In
the parking lot, Mendoza saw and spoke with Garduno. Mendoza had some marijuana in
his pocket. He showed it to Garduno and asked if Garduno wanted to smoke. Garduno
said no. Mendoza did not have a gun and was not familiar with the term “fuska.”
          Back inside the bar, Gabriel, whom Mendoza did not know well, was talking with
some women who were standing near Fernandez. Mendoza had to ask Mark, Jr., who
Gabriel was, as he had met him only one time before and had forgotten him. Gabriel



                                               11.
kicked one of the women in her rear end and the woman threw beer. Then the woman
talked with Fernandez, who looked over at Gabriel and Mendoza. Mendoza went and
spoke to Garduno. Mendoza said, “[H]ey, these guys over here are tripping about this
guy over here. And, you know, that was it. I said if something cracks off, you know,
would he fight.”
       At closing time, Mendoza and Mark, Jr., went out to the parking lot and got in the
truck. Mark, Jr., was driving and Mendoza was in the front passenger seat. Mark, Jr.,
backed out of the parking space and then Gabriel walked up and Mark, Jr., stopped to let
him get in the back seat. Mendoza took off his hat and shirt. He was sitting in his
undershirt and preparing to fasten his seatbelt when he heard a gunshot from behind. He
did not see what happened. He did not know if they were being shot at. He told Mark,
Jr., to drive away.
       At Soto’s house, Mendoza inspected the truck for bullet holes. Gabriel called
someone on his phone.
       Mendoza denied that he ever said he would peel anyone’s cap back or split
anyone’s wig. When he and Soto referred to a gun during the recorded telephone call,
they were talking about a BB gun that belonged to Soto’s son. Mendoza admitted on
cross-examination that he left some bullets in Soto’s house. He said he put them with the
BB gun.
       Mendoza testified that, in the summer of 2011 before the shooting, he did laundry
in Soto’s garage and helped clean the garage. He authenticated a picture of himself
holding a child in a blue shirt and said this was the same shirt that the gun was found with
in the box in the garage. He had never seen the gun before.
       Mendoza admitted that he had once been a Varrio Bakers gang member, but
claimed he was one no longer. He said he dropped out in 1991.




                                            12.
       Mendoza testified that when Mark, Jr., was a teenager, Mark, Jr., was part of a
“tagging crew” that was originally affiliated with the Varrio Bakers. Later the crew had a
falling out with the Varrio Bakers and became affiliated with the Colonia Bakers.
       In closing arguments, the prosecution’s theory was that Mendoza murdered
Fernandez because Fernandez was a member of a rival gang. The defense theory was
that Gabriel killed Fernandez over the conflict arising from Gabriel’s mistreatment of one
of the women who were with Fernandez.
       The jury found Mendoza guilty of all charges and found the murder to be in the
first degree. It found true the special circumstances and the enhancement allegations.
The court subsequently found the prior conviction allegations true.
       The court sentenced Mendoza as follows: On count 1, life without the possibility
of parole, plus 25 years to life for personally discharging a firearm causing death, plus
one year for each of the three prior prison terms; on count 2, seven years, plus five years
for the gang allegation; on count 3, three years, plus four years for the gang allegation; on
count 4, three years, plus four years for the gang allegation; and on count 5, three years.
The sentences on counts 2, 3, and 5 were stayed pursuant to section 654. The total
sentence was life without the possibility of parole, plus 25 years to life, plus 10 years.
                                       DISCUSSION
I.     Accomplice testimony instructions
       Mendoza argues that the court erred when it failed to give, on its on motion, an
instruction directing the jury to view the testimony of Gabriel and Mark, Jr., with caution,
and not to convict Mendoza based on their testimony without corroboration, if they were
accomplices in the killing of Fernandez. Mendoza does not claim he requested such an
instruction.
       Section 1111 provides:

              “A conviction [cannot] be had upon the testimony of an accomplice
       unless it be corroborated by such other evidence as shall tend to connect the


                                             13.
       defendant with the commission of the offense; and the corroboration is not
       sufficient if it merely shows the commission of the offense or the
       circumstances thereof.

               “An accomplice is hereby defined as one who is liable to prosecution
       for the identical offense charged against the defendant on trial in the cause
       in which the testimony of the accomplice is given.”
       The substance of section 1111 has long been the law because of the dangers
generally associated with accomplice testimony. “[I]t was, of course, recognized that
evidence of an accomplice, coming from a tainted source, the witness being … a man
usually testifying in the hope of favor or the expectation of immunity, was not entitled to
the same consideration as the evidence of a clean man, free from infamy.” (People v.
Coffey (1911) 161 Cal. 433, 438.)
       To comply with section 1111, a trial court must, on its own motion, give the jury
an appropriate instruction in any case in which there is sufficient evidence at trial that a
witness is an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.) CALCRIM
No. 334 is appropriate when it is a question of fact for the jury whether the witness is an
accomplice, while CALCRIM No. 335 is appropriate if the court concludes as a matter of
law, or the parties stipulate, that the witness is an accomplice. (See People v. Hayes
(1999) 21 Cal.4th 1211, 1270-1271.)
       In this case, there was no basis for the court to determine as a matter of law, and
the parties did not stipulate, that Gabriel or Mark, Jr., were accomplices. We will assume
for the sake of argument, however, that there was substantial evidence that would have
supported a finding that Gabriel, at least, was an accomplice. It was open to the jury to
believe Mendoza’s testimony and conclude that Gabriel was the shooter.
       The People argue that section 1111 does not apply if the evidence supports the
view that the witness was a direct perpetrator rather than one who assists in the crime, but
this is incorrect. (People v. Fauber (1992) 2 Cal.4th 792, 833-834 [accomplices for
purposes of § 1111 are all those defined as principals by § 31, i.e., all direct perpetrators



                                             14.
and all aiders and abettors].) The People also argue that the instruction was unnecessary
because Mendoza’s “theory” was that Gabriel was the sole perpetrator, not Mendoza’s
accomplice. The question, however, is not what Mendoza wanted the jury to find, but
what the jury could reasonably find. We assume the jury could have accepted the
proposition that Gabriel was the shooter but still rejected Mendoza’s claim that he never
had the gun and was uninvolved. Accordingly, we assume it was error not to instruct the
jury with CALCRIM No. 334 or its equivalent.
       It has been held that an erroneous failure to instruct on accomplice testimony in
accordance with section 1111 is harmless if “there is sufficient corroborating evidence in
the record.” (People v. Lewis (2001) 26 Cal.4th 334, 370.) This corroborating evidence
“may be slight, may be entirely circumstantial, and need not be sufficient to establish
every element of the charged offense.” (People v. Hayes, supra, 21 Cal.4th at p. 1271.)
The corroborating evidence is sufficient to show harmlessness if “it tends to connect the
defendant with the crime in such a way as to satisfy the jury that the accomplice is telling
the truth.” (People v. Fauber, supra, 2 Cal.4th at p. 834; see also People v. Gonzales
(2011) 52 Cal.4th 254, 303 [relying on foregoing authorities].)
       Sufficient corroborating evidence was presented at trial in this case. Sandra
testified that she heard Mendoza admitting he fired a shot at Fernandez and threatening to
do the same to Gabriel. Garduno testified that Mendoza solicited his assistance in an
expected conflict with a group of Colonia Bakers and, in connection with this request,
showed him a gun. Under the standard just described, no more than this was required. If
the jury believed Sandra and Garduno, it could reasonably conclude that Gabriel and
Mark, Jr., were telling the truth and Mendoza was the shooter.
       Mendoza argues that federal constitutional principles are at stake and therefore we
should apply the harmless-error standard of Chapman v. California (1967) 386 U.S. 18,
24, 36; i.e., we should ask whether the error was harmless beyond a reasonable doubt.
There is no authority for the proposition that federal constitutional principles are at stake

                                             15.
when a court fails to instruct on accomplice testimony under section 1111. In fact, as
Mendoza acknowledges, in People v. Frye (1998) 18 Cal.4th 894, 968-969, overruled on
other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22, our Supreme
Court held that the federal Constitution is not involved in the question of whether it is
proper to allocate to the defendant the burden of showing that a witness is an accomplice
under section 1111. This is because the accomplice-testimony issue is unrelated to the
prosecution’s burden of proving the elements of the offense. Mendoza says Frye did not
deal with a failure to give any instructions on the accomplice-testimony issue, and the
federal Constitution was violated here because the “accomplice status of a prosecution
witness is intertwined with proof of the defendant’s guilt .…” There is, however, no
authority for the view that the federal Constitution is violated whenever a trial court’s
instructional error merely has something to do with proving guilt. A failure to give a
section 1111 instruction is a state law error, and the Chapman standard does not apply.
II.    Bifurcation and severance
       A.      Bifurcation
       Mendoza made a motion to bifurcate the trial so that the evidence supporting the
gang special circumstance and the enhancements on counts 1 through 4 could be
presented separately and not bias the jury on the question of guilt. The court denied the
motion, stating that the gang evidence was admissible on the issue of guilt because the
jury could find that Mendoza’s gang membership was the motive for the killing and
helped to show his intent. Mendoza now argues that the denial of the motion was
incorrect. We review the ruling for abuse of discretion. (People v. Hernandez (2004) 33
Cal.4th 1040, 1048 (Hernandez).)
       Under section 1044, which vests discretion in the trial court to control the conduct
of a criminal trial, a trial court is authorized to bifurcate a trial so that prior convictions or
gang enhancements are not presented to the jury until after the jury has made a
determination of guilt. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049.) In the case of

                                               16.
gang enhancement, bifurcation may be necessary because some of the evidence relevant
to a gang-enhancement allegation, such as predicate prior offenses committed by the
defendant, may be unduly prejudicial. (Id. at p. 1049.) At the same time, however,
“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.”
(Ibid.) Under such circumstances, denial of bifurcation would be appropriate. (Id. at
pp. 1049-1050.) Further, in a gang-enhancement case, bifurcation can properly be denied
even when gang-related evidence is presented that, absent a gang enhancement, would
have been found substantially more prejudicial than probative and thus inadmissible
under Evidence Code section 352. Countervailing considerations, such as conservation
of funds and judicial resources, can prevail over a defendant’s showing of potential
prejudice under these circumstances. (Hernandez, supra, at p. 1050.) For this reason,
“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.” (Ibid.)
       We agree with the People’s view that this is a case in which denial of a bifurcation
request was appropriate because the gang evidence was sufficiently probative of guilt,
since it demonstrated Mendoza’s motive and intent. The evidence indicated that, after his
friends had a conflict with someone associated with a gang rival, Mendoza formed a plan
to take revenge on that rival and retrieved a gun to carry it out. Mendoza made his
intentions known to a fellow Varrio Baker who happened to be present, showing the
fellow member his gun and explaining why he had it. Officer Shaff’s testimony helped
the jury understand the significance of a Varrio Baker’s act of retaliatory violence against



                                            17.
a Colonia Baker in Colonia Baker territory. This act would reinforce the reputation of the
gang and member as a menace to rivals.
       Even if some of the gang evidence would have been inadmissible had gang
enhancements not been charged, “the countervailing considerations that apply when the
enhancement is charged permitted a unitary trial.” (Hernandez, supra, 33 Cal.4th at
p. 1051.) Given the relevance of Mendoza’s gang membership to the question of guilt,
we see nothing in the record that was so unduly prejudicial that the expense and delay of
a bifurcated trial for the gang allegations were still necessary. There was no abuse of
discretion.
       Mendoza also contends that the refusal to bifurcate violated federal due-process
principles because the gang evidence was highly inflammatory and grossly unfair. (See,
e.g., People v. Arias (1996) 13 Cal.4th 92, 127 [due process denied if joinder of counts
results in gross unfairness].) We disagree. The gang evidence undoubtedly was
damaging to Mendoza, but because it was closely intertwined with the proof of his guilt,
the presentation of it to a jury determining his guilt was not unfair.
       B.     Severance
       Mendoza did not ask the trial court to sever count 5, the gang-participation
offense, for a separate trial. He now contends we should interpret his bifurcation request
as impliedly including a severance request, which the court erroneously denied when it
denied the bifurcation motion, or else hold that trial counsel was constitutionally
ineffective when he did not make a request for severance. We will assume for the sake of
argument that the bifurcation request was sufficient to preserve the issue for appeal and
thus will analyze the issue directly, rather than applying an ineffective-assistance
analysis. We review a ruling on a motion for severance for abuse of discretion. (People
v. Marshall (1997) 15 Cal.4th 1, 27-28.) Cross-admissibility of the evidence from one
trial in the other trial ordinarily renders severance unnecessary. (Ibid.)



                                             18.
       Failing to sever count 5 was not an abuse of discretion because, as discussed
above, it was proper not to bifurcate the gang enhancements for counts 1 through 4, and
essentially the same evidence was relevant to count 5 as was relevant to the
enhancements. The gang-enhancement statute (§ 186.22, subd. (b)) and the gang-
participation-offense statute (§ 186.22, subd. (a)) have somewhat different elements, but
we see little or nothing in the record in this case that was admissible to prove the offense
that was not also admissible to prove the enhancements. In other words, essentially all
the gang evidence was cross-admissible. Because the jury properly would have heard the
evidence relevant to count 5 in a trial limited to counts 1 through 4, severance of count 5
would not have protected any interest of Mendoza’s, and the court consequently had
discretion to deny severance.
III.   Instructions and sufficiency of evidence for gang-participation charge
       Mendoza asserts that the evidence was insufficient and the jury instructions were
incorrect for count 5, the gang-participation offense. The People concede the evidence
was insufficient under Rodriguez, supra, 55 Cal.4th 1125. We agree.
       Rodriguez deals with the meaning of the requirement that, to be a gang member
under section 186.22, subdivision (a), a person must promote, further, or assist in
criminal conduct “by members of that gang.” Specifically, the case answers the question
whether this language means the prosecution must prove the defendant committed a
predicate offense, either as a principal or an aider and abettor, in concert with another
person who was a gang member. (Rodriguez, supra, 55 Cal.4th at pp. 1128, 1131.)
Some courts, including this one, had held that this was not required, and that a person
could be proved to be a gang member based on a predicate offense in which he or she
acted alone. (See People v. Salcido (2007) 149 Cal.App.4th 356, 368, overruled by
Rodriguez, supra, at p. 1137, fn. 8.) Concluding that the predicate offense must be
committed in concert with another, the Supreme Court explained its reasoning as follows:



                                             19.
       “Section 186.22(a) speaks of ‘criminal conduct by members of that
       gang.’ (Italics added.) ‘[M]embers’ is a plural noun. The words
       ‘promotes, furthers, or assists’ are the verbs describing the
       defendant’s acts, which must be performed willfully. The phrase
       ‘any felonious criminal conduct’ is the direct object of these verbs.
       The prepositional phrase ‘by members of that gang’ indicates who
       performs the felonious criminal conduct. 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(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.” (Rodriguez, supra, 55 Cal 4th at p. 1132.)
       This holding applies here. The People did not attempt to prove that Mendoza
committed any predicate offense in concert with anyone. It follows that he was not
proven guilty of violating section 186.22, subdivision (a), and his conviction on count 5
must be reversed. In light of this conclusion, it is unnecessary to discuss the claim that
the jury was incorrectly instructed on count 5.
IV.    Sufficiency of evidence for gang enhancements and gang special circumstance
       Mendoza contends that the evidence was insufficient to support the true findings
on the gang enhancements imposed on counts 1 through 4 under section 186.22,
subdivision (b). Section 186.22, subdivision (b), provides a sentence enhancement for
“any person who is convicted of a felony committed for the benefit of, at the direction of,
or in association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members .…”2 Mendoza also claims
the evidence was insufficient to support the true finding on the gang special circumstance


       2The  language “promote … any criminal conduct by gang members” is similar to
language in section 186.22, subdivision (a), the gang-participation offense statute. In
Rodriguez, as indicated above, our Supreme Court held that the reference to “members”
in section 186.22, subdivision (a), means the defendant must have acted in concert with
another gang member. The Rodriguez court also specifically stated, however, that there
is no such requirement for a true finding under section 186.22, subdivision (b), despite
the similarity of the language. (Rodriguez, supra, 55 Cal.4th at pp. 1138-1139.)


                                            20.
alleged under section 190.2, subdivision (a)(22), in connection with count 1.
Section 190.2, subdivision (a)(22), requires a finding that the defendant killed the victim
intentionally while the defendant was an active participant in a criminal street gang and
that the murder was committed to further the activities of the gang.
       When considering a challenge to the sufficiency of the evidence to support a
judgment, we review the record in the light most favorable to the judgment and decide
whether it contains substantial evidence from which the finder of fact could make the
necessary finding beyond a reasonable doubt. We presume every inference in support of
the judgment that the finder of fact could reasonably have made. We do not reweigh the
evidence or reevaluate witness credibility. We cannot reverse the judgment merely
because the evidence could be reconciled with a contrary finding.3 (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.)
       The evidence was sufficient to support the gang enhancements on counts 1
(murder) and 2 (discharging a firearm at a person from a motor vehicle) and the gang
special circumstance for count 1. The evidence indicated that Mendoza was a Varrio
Bakers member and Fernandez was a Colonia Bakers member. After a conflict between
members of the groups with whom Mendoza and Fernandez came to the bar, Mendoza
retrieved a gun and sought the support of another Varrio member for an expected
conflict. Officer Shaff opined that the shooting of a gang member by a rival gang
member under circumstances like these would be for the benefit of a gang. Having heard
that gangs seek to fortify their reputations by resolving conflicts with rivals by force, the




       3Mendoza    frames his argument in terms of federal due process but acknowledges
that the standard for sufficient evidence under the federal Constitution is identical to the
standard under California law. (See People v. Johnson (1980) 26 Cal.3d 557, 576
[California standard same as federal Constitutional standard stated in Jackson v. Virginia
(1979) 443 U.S. 307, 318-319].)


                                             21.
jury could reasonably conclude that the requirements of section 186.22, subdivision (b),
and section 190.2, subdivision (a)(22), were satisfied.
       Mendoza proposes an alternative, non-gang-related explanation for his behavior,
which he says defeats both the section 186.22, subdivision (b), finding and the
section 190.2, subdivision (a)(22), finding: After the conflict between Gabriel and the
woman who threw the beer, Mendoza wanted “to protect the people he was with, none of
whom were gang members.” The basic facts of the case do not support the view that
Mendoza acted to protect anyone when he shot Fernandez. Mendoza shot Fernandez
hours after the conflict between Gabriel and the woman was over and as Mendoza and his
group were leaving. Delarosa, Soto, and Sandra had already driven away in another car.
There was no evidence that Fernandez did anything threatening as he approached the
pickup truck.
       In any event, the existence of a possible alternative to the conclusions accepted by
the jury is not a reason to find the evidence insufficient. As we have said, we do not
reverse a judgment just because the evidence could be reconciled with a different
outcome.
       Mendoza also maintains that the evidence was insufficient because Officer Shaff’s
opinion “was not coupled with other evidence that [Mendoza] fired the shot with the
specific intent to benefit the Varrio Baker gang.” We disagree. Shaff’s opinion was
supported by other evidence. The testimony of several witnesses showed that there was a
conflict between the people accompanying Mendoza and the people accompanying
Fernandez. Garduno’s testimony supported the conclusion that Mendoza felt this
situation merited a response by him as a gang member confronting a rival gang member.
Mendoza sought out assistance and support for this confrontation from a fellow Varrio
Bakers member, a man who was otherwise unknown to Mendoza and whom he had no
non-gang reason to approach.



                                            22.
       This case is thus unlike People v. Albarran (2007) 149 Cal.App.4th 214, 227, on
which Mendoza relies, in which it was held that a gang motive was not shown because
“the only evidence” supporting the view that the defendant acted to gain respect for his
gang was “the fact of [the defendant’s] gang affiliation.” Here there was more. This case
also is unlike People v. Ramon (2009) 175 Cal.App.4th 843, 851, on which Mendoza also
relies, in which it was held that there were no facts to support a gang expert’s opinion that
the defendants acted to benefit a gang. There, the only facts were that the defendants
were gang members and were stopped by police in their gang’s territory. (Id. at p. 850.)
Here, again, we have described circumstances supporting the enhancement that went
beyond Mendoza’s gang membership and the occurrence of the crime in rival gang
territory.
       We agree with Mendoza, however, that there was insufficient evidence to support
the enhancement findings on counts 3 and 4, possession by a felon of a gun and
ammunition. The prosecution’s evidence tied Mendoza to the stolen gun and the bullets
found in Soto’s garage; it also tied Mendoza and his gang to the shooting. It did not,
however, tie the gun or the bullets to the shooting or Mendoza’s gang membership to his
possession of the gun or bullets. In effect, the People asked the jury to infer that if a gang
member is found to have committed a gang-related offense with a gun, then any gun or
ammunition subsequently found in the member’s possession must have been possessed
by him for a gang-related purpose. Without more, this inference cannot properly be made
because nothing prevents a gang member from possessing a gun or ammunition for
purposes independent of his gang status.
       The People’s very brief argument on this point relies on the following evidence:
Garduno’s testimony that Mendoza showed him a gun; the evidence that Mendoza used a
gun to kill Fernandez for a gang purpose; and Shaff’s testimony that shootings are a
primary gang activity. For the reasons just stated, this evidence was insufficient to show
that Mendoza possessed the gun and bullets found in Soto’s garage to benefit his gang.

                                             23.
       Perhaps the People could have proved that Mendoza possessed a gun and
ammunition for a gang purpose on the date of the shooting, since he actually used a gun
to commit a gang murder on that date. The People did not attempt to prove this,
however. The information specifically charged Mendoza with gun possession on
August 25, 2011—the date the gun was found in Soto’s garage—not August 21, 2011,
the date of the shooting.
       The gang enhancements on counts 3 and 4 will be reversed.
V.     Sentencing errors
       The People have identified two sentencing errors, a clerical error in the court’s
minute order from the sentencing hearing, and a clerical error in the abstract of judgment.
Mendoza does not dispute the existence of these errors.
       The first sentencing error involves application of the Three Strikes Law. Each
count of the information alleged that Mendoza was convicted of first-degree robbery
(§ 212.5) in 1992 and again in 1994. The information further alleged that these offenses
were strikes under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). The court
found the allegations true. The sentence recommendation in the probation report,
however, did not include enhancements for the strikes. At the sentencing hearing, the
probation officer told the court that the Criminal Justice Information System did not show
the strike priors. The prosecutor objected and pointed out that, under the Three Strikes
Law, the sentences for each count should have included terms of 25 years to life. The
court proceeded to sentence Mendoza without applying the Three Strikes Law.
       The trial court was required either to impose or to strike the Three Strikes Law
enhancements, and its failure to do either resulted in an unauthorized sentence. (People
v. Bradley (1998) 64 Cal.App.4th 386, 391.) We will direct the court to correct the error
on remand.
       The second sentencing error is similar to the first. The information alleged that
the robberies from 1992 and 1994 were serious felonies under section 667,

                                            24.
subdivision (a), and the court found the allegations true. Under section 667,
subdivision (a)(1), five-year enhancements on each count were mandatory. (People v.
Purata (1996) 42 Cal.App.4th 489, 498.) The court did not impose these enhancements.
Again, we will direct the court to correct the error on remand.
       The error in the court’s minute order is the statement that the total sentence is life
without the possibility of parole plus “the total fixed term of 35” years. The total
sentence the court stated orally was life without the possibility of parole, plus 25 years to
life, plus 10 years. The error in the abstract of judgment is that it indicates a determinate
term of 25 years for the section 12022.53, subdivision (d), enhancement (personally
firing a gun, causing death) on count 1. The correct term for that enhancement is 25
years to life. Since the court will be generating a new minute order and abstract on
remand, we presume these errors will be corrected.
VI.    Cumulative error
       Mendoza argues that if we find multiple errors to be harmless separately, we
should find them to be prejudicial cumulatively. We have identified only one harmless
error—the failure to instruct on accomplice testimony—so there are not multiple
harmless errors of which we could evaluate the cumulative effects.
                                      DISPOSITION
       The conviction on count 5 and the true findings on the gang enhancements on
counts 3 and 4 are reversed. The matter is remanded to the trial court for resentencing
and correction of the sentencing errors identified in this opinion.
                                                                 _____________________
                                                                                Smith, J.
WE CONCUR:

 _____________________
 Gomes, Acting P.J.

 _____________________
 Franson, J.


                                             25.
