Filed 1/28/14 P. v. Baskin CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B244611

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA086624)
         v.

JEREMIAH BASKIN et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County, Jesse I.
Rodriguez, Judge. Affirmed.
         Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant Jeremiah Baskin.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant Traveon Hill.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellants Jeremiah Baskin and Traveon Hill were convicted of attempted second
degree robbery and second degree commercial burglary. Appellants were charged with
the murder of accomplice Brandon Lincoln under the provocative act doctrine, but the
jury found them not guilty of that charge. The jury found true the allegations that the
burglary and attempted robbery were committed for the benefit of a criminal street gang
within the meaning of Penal Code section 186.22, subd. (b)(1).1 Appellant Hill admitted
that he had suffered two prior serious felony convictions within the meaning of the Three
Strikes law and section 667, subdivision (a), and that he had served a prior prison term
within the meaning of section 667.5, subdivision (b). Appellant Baskin admitted that he
had suffered a prior serious felony conviction within the meaning of the Three Strikes
law and section 667, subdivision (a), and that he had served a prior prison term within the
meaning of section 667.5, subdivision (b). The trial court sentenced appellant Baskin to a
total term of 16 years in state prison and appellant Hill to a term of 30 years to life in
state prison.
       Appellants appeal, contending the trial court: made numerous improper and
prejudicial remarks during jury voir dire; erred in instructing the jury on consciousness of
guilt; and in denying the joint defense motion to bifurcate the trial on the gang
enhancements. Appellants further contend there is insufficient evidence to support the
true finding on the gang enhancements. Appellants also contend the prosecutor
committed misconduct. Additionally appellants contend the trial court abused its
discretion in denying their motions to strike their prior convictions for sentencing
purposes. We affirm the judgments of conviction.




       1
           Unless otherwise indicated, all future statutory references are to the Penal Code.



                                               2
                                        I. FACTS


       1. Prosecution’s case


       On August 18, 2010, a young man came into Arturo Rios’s jewelry store twice to
inquire about fixing a watch. Both Rios and his employee, Maria Gonzales, were
suspicious of the young man and Gonzales worried that something bad might happen.
       Later in the day, just before 6:00 p.m., the same man, Brandon Lincoln, came into
the store with three other men. Rios was sitting at a desk at the end of the store and
Gonzales was cleaning showcases. Lincoln entered the store quickly and pulled out an
object from his waistband. Appellant Hill rushed toward Rios. Hill also pulled out an
object from his waistband. One of these objects turned out to be a mallet-style hammer,
but the way that the intruder moved led Rios to believe it was a gun. A second hammer
was recovered from the jewelry store after the shooting. Appellant Baskin and the fourth
man did not remove anything from their waistbands.
       Rios heard loud “pops” which he later learned was the breaking of his store’s glass
showcases. Rios believed the men were going to shoot him and Gonzales. He was
frightened. Gonzales panicked and was concerned for her safety. Rios stood up, pulled
out his gun from his waist and fired it as appellant Hill was heading toward him. He fired
15 bullets, hitting appellants and Lincoln. Lincoln and appellant Hill crawled out of the
store and the other two men fled. Rios was still scared. He reloaded his gun, fearing the
men would return to shoot him.
       Gonzales called 911. Police found two hammers on the floor of the jewelry store.
Gloves were also found near the crime scene. Apart from Rios’ gun, no other firearms
were found at the crime scene.
       The incident was recorded by a security camera on the premises. The tape was
played for the jury at trial.




                                             3
       Appellant Baskin, who had been shot three times and was bleeding heavily, went
to Lincoln’s home, which Lincoln shared with his aunt, Adrianne Hicks. Hicks and her
neighbor, Delila Duran, took appellant Baskin to the hospital.
       Police found Lincoln face down on the sidewalk in front of the store. He had been
shot four times and was dead.
       Appellant Hill was found across the street from the jewelry store, lying face down
and bleeding. He was on the phone telling someone he had been shot in the store.
Appellant Hill was severely injured by the gunshots but survived.
       Swabs were taken of blood from inside the jewelry store and the sidewalk near
Lincoln’s home and were tested. The DNA on the swab from the store matched appellant
Hill’s DNA, and the DNA on the swab from the sidewalk matched appellant Baskin’s
DNA.
       Three witnesses testified about appellants’ gang affiliation. Detective Traci
Gonzales of the Los Angeles County Sheriff’s Department testified that in 2005, when
she worked as a detective assigned to gang-related cases, she had contact with appellants.
Both appellants had admitted to Detective Gonzales that they were members of the
Santana Blocc gang.
       Lincoln’s neighbor Duran had known him since childhood. She knew that he was
a member of the Santana Blocc gang. He was known as “Blocc Boy” and “Savage.”
Lincoln’s home was a “hangout” for the Santana Blocc gang.
       Detective Richard Sanchez of the Los Angeles County Sheriff’s Department
testified as a gang expert that the Santana Blocc Crips is a violent criminal gang in
Compton. The common sign or symbol for the gang is “SBC” or “SBCC.” The gang
uses “Blocc,” instead of “Block” for part of its name because the last two letters stand for
“Compton Crip.” Sometimes the “B” in the word “Blocc” is crossed out because the
letter “B” stands for the rival Bloods gang.
       Detective Sanchez testified that the primary activities of the Santana Blocc gang
included petty thefts, narcotics sales, assaults with deadly weapons, burglaries, robberies,



                                               4
attempted murders and murders. The types of robberies committed by gang members
include robberies of jewelry stores.
       Detective Sanchez had contact with both appellants. He heard them admit to
being Santana Blocc gang members, with appellant Hill admitting to be a member in
2005, and appellant Baskin admitting to be a member in 2002. Detective Sanchez
observed and photographed appellant Hill’s tattoos. On his hands were tattooed the
words “Blocc” and “Boy,” signifying that he was claiming the Santana Blocc gang.
Right above his wrist and forearm was a tattoo of a stack of $100 bills, which is a
common gang tattoo called a money roll, signifying that the gang member is making a lot
of money from illegal activities. The fingers on both his hands were tattooed with the
numbers 5150, signifying that “they are crazy.” One tricep was tattooed with the letter
“S” for “Santana,” and the other tricep was tattooed with the letter “B” for “Blocc.” The
front part of each shoulder was tattooed in the shape of a hand making a letter “C”
gesture for “Compton Crip.” Detective Sanchez opined that appellant Hill is an active
Santana Blocc gang member. He also opined that appellant Baskin was a member of the
Santana Blocc gang.
       Based on a hypothetical scenario mirroring the evidence in the case, Detective
Sanchez opined that the crimes were gang-related, committed at the direction of, in
association with and for the benefit of Santana Blocc Compton Crip, a gang he described
as “tight knit” with “a very tight alliance.” Detective Sanchez unequivocally testified,
“there is no doubt in my mind it was [at] the direction of Santana Blocc Compton Crip.
[¶] They do it to gain profits. . . . They make the money, and, then, they turn that money
into narcotics, which is easier to sell than the actual jewelry.”


       2. Defense case


       Appellant Baskin offered two witnesses in his defense. Detective Freddy Arroyo
of the Los Angeles Police Department, testified that on August 18, 2010, he interviewed
Maria Gonzales in Spanish, a language in which he was fluent. Gonzales told Detective

                                               5
Arroyo that she was present when the Rios Jewelry Store shooting occurred, and that she
saw one of the young men earlier in the afternoon when he had come into the store. She
had been at the front door of the store because she had been suspicious of the young man.
Detective Arroyo asked Gonzales at least twice whether she saw the young men with any
weapons, and each time she said she did not see any weapons.
        Detective Matthew Maffei, also of the Los Angeles Police Department, testified
that on August 18, 2010, he was asked to help in an investigation of a shooting at the
Rios Jewelry store. At the store, Rios told Detective Maffei that he shot the suspects who
came into his jewelry store because he was afraid they would shoot him. Detective
Maffei took Rios to the park across the street from the jewelry store. At the park, Rios
positively identified appellant Hill.
        Appellant Hill did not offer any evidence.


                                        II. DISCUSSION


        1. Court’s Comments during Voir Dire


        Appellants contend the trial court made numerous improper and prejudicial
comments to prospective jurors during voir dire. We consider each set of remarks in
turn.


        a. Comments about terrorism and 9/11


        Appellants contend the trial court made comments about terrorism and 9/11 which
were in no way relevant to this matter and which were highly prejudicial.




                                              6
       i. Proceedings below


       During voir dire, the trial judge told the prospective jurors that he liked to use
analogies. The trial court said, “This analogy has nothing to do with this case. It is a
hypothetical case. Something that happened some years back.” The court then said,
“Hypothetically speaking, hopefully it never happens again, but we have a terrorist attack
on our nation and kills one or 2,300 people. Last time I checked, I think about 98 to 99.7
of the 365 or 80 million people that we have would love be to [sic] the arresting officer,
the jury, the judge and the executioner as to that terrorist that happened on our shores.
Nothing to do with this case. But the issue becomes most of those same people would
abhor—like I said, would be all of them at once in one coin, arresting officer,
executioner, judge, jury, all of them at once, and then they pull the trigger against that
terrorist when they are caught and tried. But if the criteria is how much you despise that
or you disagree with that terrorist—if the criteria was that and being a fair and impartial
juror in that hypothetical situation, then that terrorist could never be tried in this country
because, last time we checked, no one likes those people. The question is irrespective
of . . . whether you like something or not, the question is are you able to put that aside
and say, yeah, I don’t like this; I don’t like that. The question is[,] are you able to be fair
and impartial in this case.”
       The court added: “That’s a further analogy that I gave you about Donald Trump
giving me all that money. The bottom line is irrespective of my likes or dislikes, can I be
fair pursuant to my oath, pursuant to my morals and my ethics. Simple as that.”


       ii. The court’s comments did not result in prejudice to appellants


       As the trial court stated, a terrorist attack “has nothing to do with this case.” The
court used the terrorism reference while explaining an easily understood concept to
potential jurors: It is a common reaction for a juror to not “like” a criminal defendant,
but he or she must be able to set aside such a feeling in order to give the defendant a fair

                                               7
trial. There was thus no reason to refer to a terrorist attack or to tell the prospective
jurors that in the court’s opinion virtually everyone in America would want to be the
executioner of the terrorists.
       The mention of 9/11 “continue[s] to invoke fear, dread and anger in the listener.”
(People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1259-1260.) Given the continued
emotional power of 9/11, we question whether there is ever a need in an ordinary
criminal trial to refer to 9/11, directly or indirectly. There was clearly no need to do so in
this case.
       We find the error harmless under either the federal or state standard of review.
(Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818,
836.) The trial court’s reference to terrorism was brief and not graphic. Jurors acquitted
appellants on the most serious charge of murder, showing that they were not prejudiced
by the court’s comments and were able to fairly consider each charge on its merits. The
evidence against appellants on the burglary and robbery charges was overwhelming. The
robbery was videotaped and the recording shown to the jury. Appellant Hill was found
across the street from the store and was overheard stating that he had been shot in the
store. Lincoln’s aunt and a neighbor testified that appellant Baskin came to Lincoln’s
house on the evening of the robbery seeking assistance for gunshot wounds he had
suffered.


       b. Comments About Reasonable Doubt and the Burden of Proof.


       Appellants contend the trial court inaccurately paraphrased the definitions for
reasonable doubt and the burden of proof and the resulting error violated their due
process rights and require reversal per se.2



       2
         Both appellants claim the comments were improper. Each appellant makes some
specific claims of impropriety in his brief that the other does not, but each joins in the
other’s contentions.

                                               8
       Respondent contends appellants forfeited their claims by failing to object to the
trial court’s remarks. (See People v. Boyette (2002) 29 Cal.4th 381, 459 [failure to object
to trial court’s disparaging remarks about expert witness waived claim of misconduct].)
Appellants contend the trial court’s remarks were the equivalent of a jury instruction.
They point out that instructional errors which affect a defendant’s substantial rights may
be raised on appeal even in the absence of an objection in the trial court. (People v.
Brown (2003) 31 Cal.4th 518, 539, fn. 7.)
       We view the trial court’s comments as closer to being instructions on the law than
the sort of general comment considered by the Court in People v. Boyette, supra, 29 Cal.
4th at page 459. The trial court in fact read the prospective jurors the standard
CALCRIM instruction on reasonable doubt. The rest of the court’s comments were
related to that instruction. Accordingly, we will review appellant’s claim.


       i. Proceedings below


       During voir dire, the court read the definition of the legal term “reasonable
doubt.”3 Afterward, the court told the prospective jurors, “Do not ask me to explain it to
you because I will get in trouble. In deciding what is a reasonable doubt, that is between
you and you and between you and the other jurors if you are selected; no more, no less.”

       3
         The court read the following out loud: “The fact that a criminal charge has been
filed against the defendants is not evidence that the charge or charges is or are true. You
must not be biased against the defendant because they have been arrested, charged with a
crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent.
This presumption requires that the People prove a defendant guilty beyond a reasonable
doubt. Whenever I tell you the People must prove something, I mean they must prove it
beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the charge or charges is or are true. The evidence may
not eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt. [¶] In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves a defendant guilty
beyond a reasonable doubt, he’s entitled to an acquittal, and you must find him not
guilty.”

                                             9
       The trial court then explained that appellants are presumed innocent, even if they
never say a word at trial, that the prosecution has the burden to prove the case to the jury
beyond a reasonable doubt, and that “[t]he defense doesn’t have to prove anything to
you.” The court further explained that appellants “don’t have to call any witnesses. They
don’t have to ask a question. They don’t have to stand up, nothing, theoretically
speaking. And the burden remains with the prosecution, period. Like I always say, it is
not a high burden. It is not a low burden. It is not . . . a medium burden. It is a burden
that was established ad infinitum, sort of forever, period. We as judges have to accept it
whether we like it or not.”
       The court reiterated the prosecution’s burden of proof: “The People’s burden is
beyond a reasonable doubt. . . . It is not to prove the case to you perfect or a hundred
percent. It doesn’t exist. There’s no perfect case. There’s no case that anyone can prove
a hundred percent.”
       “We see on television. We read the papers all—there are—I think last time I
counted with all the different channels, there are like 300, 400 channels nowadays.
Maybe a great percentage of them are crime programs, lawyer programs, police
programs. So technological—you know, looking at all this, and everything is perfect
down to the 10th trillionths of a trillionth of your hair. That’s not real life at least as to
the People’s burden. Okay. Keep that in mind.”
       “Proof beyond a reasonable doubt. You don’t go in there looking for a doubt
because it is proof beyond a reasonable doubt. If you have a doubt as to the guilt or
innocence here, then you have to decide is it reasonable or not because you could have
doubts, but they must be reasonable. So you don’t go in there already saying there is a
doubt. Only if in your mind after you decide what the facts are, discuss the case, the facts
with the other jurors, discuss the evidence, the exhibits, the law, and you have to decide.
If I have a doubt, is it reasonable or not. If you don’t have a doubt, that’s it.”
       The trial court explained that jurors are not to speculate, and are to listen to the
evidence. The court told the prospective jurors that the lawyers “prepared this case.
They know the case better than you and I will know this case ever. They know whether

                                               10
they have an obligation. They have a burden. They know where they’re going in this
case. They know what they need to do.”
         Toward the end of voir dire, when the trial court asked the prospective jurors
collective questions, it explained the prosecution’s burden of proof and the presumption
of innocence: “In terms of the burden of proof; the People’s obligation to prove the case
and each element beyond a reasonable doubt against the defendants, the defendants’ right
not to testify—the lawyers don’t have to prove anything to you. The defendants don’t
have to prove their innocence to you. They are presumed to be innocent. . . . This
presumption can be overcome by the People through their witnesses and exhibits. Of
course, that presumption remains until after you cross that threshold and go into the jury
room to deliberate and determine what the facts are. You are not to consider penalty or
punishment. You are not to speculate. You are not to be investigators. You are not to be
partisans. You are not to be litigants. You are to be judges of the facts; no more, no
less.”
         After the jurors were selected, one of them asked, “You’re going to make sure that
we understand the instructions and the law and everything[?] I want to do this right.”
The trial court answered, “I am convinced beyond any doubt whatsoever that all of you
will do your job according to the law and according to your oath. The instructions—the
law is the law. I read the law to you. [¶] Remember when I read that reasonable doubt
that I told you don’t ask me what it means because I’m going to get in big trouble. You
don’t want me to lose my job. [¶] Okay. Remember we are judges. We are judges.
These are the attorneys, extremely professional people. They know what they are
doing. . . . You don’t have to worry about anything. . . .”


         c. The trial court did not improperly paraphrase the law


         A trial court errs when it explains or expands upon the concept of reasonable
doubt in a manner which lowers the prosecution’s burden of proof. (People v. Johnson
(2004) 119 Cal.App.4th 976, 985-986.)

                                              11
       Appellants contend the trial court’s comments were the same as those found
improper in People v. Johnson, supra, 119 Cal.App.4th at pages 985-986, and People v.
Johnson (2004) 115 Cal.App.4th 1169, and had the same effect. Appellants are mistaken.
       In one of those cases, the trial court compared reasonable doubt to decisions jurors
made in daily life, such as going to college, and argued that jurors could not come up
with a decision in life made with “absolutely no doubt,” and could not wait to be
“convinced beyond all possible doubt” before making a decision because “it’s never
happened in your life[.]” (People v. Johnson, supra, 119 Cal.App.4th at p. 980.) In the
other case, the court stated people plan future activities such as vacations because they
“have a belief beyond a reasonable doubt that they will be here tomorrow.” (People v.
Johnson, supra, 115 Cal.App.4th at p. 1171.)
       In both cases, the Court of Appeal found the comments erroneous because
everyday activities do not require the same deliberative process as required for a jury trial
and do not require an individual to have an abiding conviction of the wisdom of their
conviction. That was not the case here. The court did not use everyday activities to
explain or illustrate the concept of reasonable doubt.
       Appellant Hill further contends the trial court improperly suggested to jurors that
the meaning of beyond a reasonable doubt was up to them. He claims that while “at
some point this is entirely true, a jury’s determination of reasonable doubt necessarily
depends on how it is defined.” Appellant overlooks the fact that the trial court’s remark
came immediately after the court read the jury instruction defining reasonable doubt.
Further, as we discuss throughout this section of the opinion, the trial court did not
misstate the definition of reasonable doubt. Thus, appellant’s claim fails.
       Appellant Hill also contends the trial court erred in informing the prospective
jurors that the People could establish reasonable doubt with a less than “perfect” case,
“suggesting that evidentiary deficiencies were the norm, and not to expect a case to be
prove to an exactitude.” We do not agree. The court’s comments were made in reference
to television shows, and suggest only that trials in real life are not like trials on television.
The court pointed out that television shows are “technological—you know, looking at all

                                               12
this, and everything is perfect down to the 10th trillionths of a trillionth of your hair.”
The court’s comments were consistent with the standard jury instruction on reasonable
doubt, which states, “The evidence need not eliminate all possible doubt because
everything in life is open to some possible or imaginary doubt.”
       Appellant Hill additionally contends the court’s comment to jurors that they not
begin deliberations “looking for a doubt” suggests that the jury should not subject the
prosecution’s case to rigorous thinking. Appellant is mistaken. The court was telling the
prospective jurors not to pre-judge the case. The rest of the court’s statement was: “So
you don’t go in there already saying there is a doubt. Only if in your mind after you
decide what the facts are, discuss the case, the facts with the other jurors, discuss the
evidence, the exhibits, the law, and you have to decide. If I have a doubt, is it reasonable
or not. If you don’t have a doubt, that’s it.”
       Appellant Baskin points to several phrases by the court which he claims were
erroneous. Like appellant Hill, he points to the comments about a “perfect” case as
misstating the reasonable doubt standard. As we discuss, supra, those comments were
proper.
       Appellant Baskin also contends the prosecutor compounded the court’s error by
also incorrectly paraphrasing the reasonable doubt instruction when he said: “What is
beyond a reasonable doubt? It is exactly what the judge instructed. I can’t say it is 52
percent or 99 percent. There is no number you can put on it. As the prosecutor in this
case, it is my burden to prove the case to you if you are selected as jurors to prove the
case to you beyond a reasonable doubt.” Appellant does not elaborate on his claim. We
see nothing incorrect in the prosecutor’s statement. The prosecutor told the prospective
jurors to follow the court’s instruction, adding only that a number cannot be put on
reasonable doubt. That is true.
       Appellant Baskin further contends the trial court improperly paraphrased the
burden of proof by using the phrases “it is not a high burden” and “presumption of
innocence is not static.” The phrases are taken out of context.



                                                 13
       The court said in full: “[I]t is not a high burden. It is not a low burden. It is
not . . . a medium burden.” The court was explaining that the burden of proof standard
was a complex concept, not easily explained by simple adjectives. That is true.
       The court said in full: “The presumption of innocence is not static. It is not
forever because that presumption can be overcome by the prosecution . . . .” This is
clearly a correct statement of law. A defendant begins a case with the presumption of
innocence, but that presumption can be rebutted by the prosecution.
       Finally, appellant Baskin contends the trial court incorrectly suggested the defense
had a burden when the court stated: “[T]hese lawyers, as I said, they prepared this case.
They know the case better than you and I will know this case ever. They know whether
they have an obligation. They have a burden.” The court continued: “They know where
they’re going in this case. They know what they need to do. They know what they need
to ask. It is a lot of tactical considerations in a trial.”
       In context, the court was telling the prospective jurors not to decide the case
before they went into the jury room for deliberations. Before making the above remarks,
the court told the prospective jurors: “When we’re sitting here, as I said, we could be
speculating, and you are sitting there saying I just wish Mr. Bengston would call this
witness. Because in the meantime, from now until you cross that threshold there, you’re
not to speculate. You’re not to form or express any opinions about the case.” The court
then reiterated that the prospective jurors should not speculate about why a person might
not have been called as a witness, or a question was not asked. The court then made the
above-quoted remark, which explains to jurors why they should not speculate. This was
a proper statement of the law.


       d. Appellants’ right not to testify


       Appellants contend that when the court told the prospective jurors “judges
penalize defendants for not testifying,” the court was somehow conveying to the
prospective jurors that this was acceptable behavior.

                                                14
        i. Proceedings below


        The trial court initially told prospective jurors: “In every criminal case, the person
charged with a crime, . . . those people do not have to testify in a case in which they are a
defendant. So Mr. Hill and Mr. Baskin—it is one of the most absolute things in criminal
law, the right not to testify. . . .”
        The court added: “But the problem is that I’m going to give you a lot of
instructions. I’m going to give you a lot of admonitions. I’m going to tell you to do
some things, and I’m going to tell you a lot more things not to do. But I realize that no
matter how many instructions I will give to you in writing or orally, I cannot control your
minds. That’s an understatement because, believe it or not, when I’m sitting, I cannot
even control my own mind. How would I expect to control yours? But the guidelines
that we give you, the admonitions that we give you to protect everyone’s rights, including
the People, are things that come into play sometimes. And sometimes you may be sitting
there, and unconsciously things come into your mind. . . .”
        “Because of this area, it happens quite often that most jurors will tell us, if, if not
all of them, yes, I accept the point of law that in a criminal case a defendant does not
have to testify. He has that absolute right. What happens is that some of us start thinking
about it and say why not. And sometimes what happens is people penalize—judges
penalize defendants for not testifying. . . . Can’t do it. Can’t do it.”
        “Why? Because that is . . . the law. That’s what our forefathers say when they
were founding our republic, democracy. [Two], it is pursuant to your oath; [three], it is
the only right thing to do because they do have a burden. The burden is with the People;
no more, no less.”


        ii. The court did not convey approval of inferring guilt.


        “[T]he privilege against self-incrimination of the Fifth Amendment prohibits any
comment on a defendant’s failure to testify at trial that invites or allows the jury to infer

                                               15
guilt therefrom, whether in the form of an instruction by the court or a remark by the
prosecution. [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 662.)
       The court’s comments do not invite the prospective jurors to infer guilt from
appellants’ decision to exercise their Fifth Amendment rights. The court’s comments
consist of an acknowledgement that some people want to infer guilt when a defendant
does not testify coupled with an admonition that it is very important not to infer guilt and
thereby penalize a defendant for exercising his right not to testify. In other words, the
court was telling the prospective jurors to fight against a common impulse. There is
nothing improper about these remarks.
       As for the use of the term “judges,” appellants read too much into this term. The
trial court repeatedly told the prospective jurors to think of themselves as judges. Well
before making the above-quoted remarks, the court told the prospective jurors: “I’m
going to tell you that we are not partisans in this case. You and I are judges here if you
are selected.” Later, the court again told prospective jurors “You are not to be
investigators. You are not to be partisans. You are not to be litigants. You are to be
judges of the facts; no more, no less.” Thus, when the court stated that “sometimes what
happens is people penalize—judges penalize defendants for not testifying,” he was
referring primarily to jurors. There was nothing improper in this remark.


       e. Trial court’s comments about punishment/death penalty


       Appellant Baskin contends that the trial court’s comment about punishment and
the death penalty during voir dire violated the prohibition of considering penalty during
the guilt phase of the trial. Appellant Hill joins in this contention.
       Respondent contends appellants have waived this claim by failing to object in the
trial court. (See People v. Boyette, supra, 29 Cal.4th at p. 459.) We agree. Assuming for
the sake of argument that the claim was not waived, we would see no error.
       The court first stated: “In every criminal case, when a person is charged with a
crime, . . . you have to have no concerns about it because in the same way that I as a

                                              16
judge here cannot tell you what the facts are and what your verdict should be—that’s the
province of the jurors. If we go to the next step, you are not to tell me or consider penalty
or punishment because that’s irrelevant to you, period. That should never ever enter into
your mind in your deliberations. I’ll get back to that in a few moments.”
       The court later stated: “You’re not to consider penalty or punishment. The
important thing is not that you don’t think about it because you can’t help it sometimes.
The important thing is that if those things come into your mind, you must do your utmost
pursuant to your oath and to your morals and to your ethics— that you sort of take them
out. You heard some of our leaders in the past. That they compartmentalize things. You
have to compartmentalize it and put it outside your mind. After the case is over, you can
do anything with it but not during the case. Ladies and gentlemen, keep that in mind,
please.”
       Baskin is correct that the jury should not consider possible penalties when
deciding guilt. (See People v. Martinez (2010) 47 Cal.4th 911, 958; People v. Holt
(1984) 37 Cal.3d 436, 458.) The court’s comments were an explanation of that
prohibition, not a violation of it. It is of course the trial court’s duty to explain such rules
to the jury.


       f. The court’s “religious” references


       Appellant Baskin contends the trial court’s references to biblical terms and the
jurors’ religious beliefs were improper and, considered with the court’s other comments,
prejudicial. Appellant Hill joins this contention.
       Respondent contends appellants have waived this claim by failing to object in the
trial court. (See People v. Boyette, supra, 29 Cal.4th at p. 459.) We agree. Assuming for
the sake of argument that the claim was not waived, we would see no error.
       While questioning the individual prospective jurors seeking to be excused from
jury service, the trial judge at one point commented about “flood gates.” He said it was a
biblical name. He said, “If I open the flood gates too wide [i.e., allowed prospective

                                               17
jurors to open the doors of his courtroom in order to leave], even the attorneys would
leave. I’m the only one left.” Later during voir dire, the trial judge mentioned that he
gave his courtroom doors the biblical name “flood gates.” He reiterated, “I am convinced
if I open those doors a little bit too wide, I’d be the only one left. I have to be careful of
your request [to be excused from jury service]. Please keep that in mind.”
       Still on the topic of why he often needed to deny prospective jurors’ requests to be
excused from jury service, the trial judge noted, “Sometimes people say, you know,
judge, my upbringing, my religious beliefs, my philosophical beliefs, my political beliefs,
whatever beliefs that I have do not allow me to be sitting in judgment of another human
being.” The court explained why these excuses did not warrant being excused from jury
service as follows: “[T]he problem is except in some very distant areas in the death
penalty case, which this is not the one, that you are not . . . sitting in judgment of another
human being. . . . [I]f you are selected [to be on the jury panel], you’re going to be sitting
in judgment of the evidence . . . .”
       “Appeals to religious authority at the guilt phase are . . . impermissible . . . .”
(People v. Harrison (2005) 35 Cal.4th 208, 247.) “The jury at the guilt phase is not
charged with making an ethical or normative decision; instead, it decides questions of
historical fact based on the evidence and applies to those facts the law as articulated by
the trial court. Religious input has no legitimate role to play in this process. [Citation.]
[¶] But not every reference to the Bible is an appeal to religious authority. Not only is
the Bible a religious text, but it is also generally regarded as a literary masterpiece;
indeed, it is among the oldest and best-known literary works in our culture. The English
departments of major secular universities teach courses on the Bible as literature. And
this court has repeatedly held that in closing argument attorneys may use ‘illustrations
drawn from common experience, history, or literature.’ [Citations.] As an article in a
respected law journal explains, ‘fiction, anecdotes, jokes and Bible stories are commonly
regarded as acceptable’ in closing argument. [Citation.]” (Id. at pp. 247-248 [fn.
omitted].)



                                              18
       The trial court’s first “religious” reference was to flood gates and was clearly a
literary allusion to illustrate the court’s point. There is no doubt that a reasonable juror
would have understood it as such. The court’s comment was proper. The court’s second
“religious” reference simply acknowledged that some jurors have concerns that their
religious beliefs prevent them from serving on a jury. This is not an appeal to religious
authority in any way. The court in fact emphasized that jurors were to judge the
evidence, not the person. The court’s comment was proper.


       g. The court’s comment on race


       Appellant Baskin contends the trial court improperly remarked on appellants’ race.
Appellant Hills joins in this contention.
       Respondent contends appellants have waived this claim by failing to object in the
trial court. (See People v. Boyette, supra, 29 Cal.4th at p. 459.) We agree. Assuming for
the sake of argument that the claim was not waived, we would see no prejudice to
appellants.
       The trial court made one statement about race, telling the jurors prior to trial, “You
are not to consider the defendants’ race at all in this case to determine whether they are
guilty or not guilty.” Even assuming for the sake of argument that this remark were
improper, we would find it harmless under any standard of review. (See, e.g., Chapman
v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46 Cal.2d at p. 836.) It
was a very brief reference, substantively it was unobjectionable and, as we discuss
throughout this opinion, the evidence against appellants was overwhelming.


       2. Bifurcation


       Appellant Baskin contends there was scant evidence at the preliminary hearing
showing that the crimes were gang-related, and thus the gang evidence was extremely
prejudicial with little probative value for the substantive charges. He concludes the trial

                                              19
court erred in denying the defense motion to bifurcate the trial court of the gang
enhancement allegations. Appellant Hill joins in this claim.


          a. Applicable law


          A trial court’s denial of bifurcation of a jury trial is subject to review for an abuse
of discretion. The court’s decision will not be disturbed on appeal unless it exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)
          “[E]vidence of gang membership is often relevant to, and admissible regarding,
the charged offense. Evidence of the defendant’s gang affiliation—including evidence of
the gang’s territory, membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like—can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues pertinent to guilt of the
charged crime. [Citations.] To the extent the evidence supporting the gang enhancement
would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and
bifurcation would not be necessary. [Citation.]” (People v. Hernandez, supra, 33 Cal.4th
at pp. 1049-1050.) “Even if some of the evidence offered to prove the gang enhancement
would be inadmissible at a trial of the substantive crime itself—for example, if some of it
might be excluded under Evidence Code section 352 as unduly prejudicial when no gang
enhancement is charged—a court may still deny bifurcation.” (Id. at p. 1050.) “[A] trial
court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader
than its discretion to admit gang evidence when the gang enhancement is not charged.”
(Ibid.)


          b. Proceedings below


          Prior to trial, defense counsel jointly requested to bifurcate the gang allegations.
The trial court denied the request.

                                                 20
       The court explained its denial: “The issue is under a 352 analysis whether or not
the prejudicial effect substantially outweighed the probative value and the consumption
of time, a number of things.”
       “[U]sing this balancing process, based on the offer of proof that has been given to
the court and the arguments that the three of you have made, the court comes to the
reasonable, common sense conclusion, exercising its full discretionary powers, that the
gang membership is prejudicial, but the probative value of that association, of that
brotherhood, of sort of the Three Musketeers idea, the classical idea of the Three
Musketeers substantially outweighs any prejudicial effect because even though motive is
not an element, it does go to a certain motive. It goes to intent and identification when
we have these three people that just how coincidental that they just meet at this store at
the front door and decided to say, hey, let’s make our day. This is a day’s pay. We’re
going to go in there and break the cases and steal everything. At least two of them have
hammers, and then the fact that Mr. Baskin, as an offer of proof, is injured.”
       “Again, I don’t have any information whether or not we have any photos or any
video of Mr. Baskin being at the location, but he goes back to the location where the first
suspect, now the deceased, lives and is a known hangout. When we’re looking at the
totality of the circumstances, again, I think that it is relevant, and it is material, and the
probative value clearly outweighs any prejudicial effect. [¶] And, therefore, the People
are allowed to be able to use that testimony in the case in chief, and it is not bifurcated.”


       c. The trial court did not abuse its discretion by denying the motion to bifurcate


       Section 186.22, subdivision (b)(1) applies to “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 . . . .” (Italics added.) Generally, if the evidence shows that a
defendant “intended to and did commit the charged felony with known members of a
gang, the jury may fairly infer that the defendant had the specific intent to promote,

                                               21
further, or assist criminal conduct by those gang members.” (People v. Albillar (2010) 51
Cal.4th 47, 68.)
       The evidence at the preliminary hearing showed that Hill, Baskin and Lincoln
were members of the same gang, the Santana Blocc Compton Crip (“SBCC”). The
evidence also suggested that the fourth robber was a gang member. Robberies were one
of the primary activities of that gang. The victim’s description of the attempted robbery
showed concerted activity. Following the attempted robbery, Baskin went to a known
SBCC gang house to seek assistance. This is sufficient evidence to support an inference
that the attempted robbery was committed in association with a criminal street gang and
with the requisite specific intent.
       Since the evidence at the preliminary hearing supported an inference that the
attempted robbery was gang-related, the trial court did not abuse its discretion in denying
the motion to bifurcate the gang enhancement.
       Even if the trial court erred, any error was harmless under any standard of review.
(See, e.g., Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46
Cal.2d at p. 836.) As we discuss in section 1 of this opinion, the evidence against
appellants on the burglary and robbery charges was overwhelming. Jurors acquitted
appellants on the most serious charge of murder, showing that they were not prejudiced
by the gang evidence and were able to fairly consider each charge on its merits.


       3. Sufficiency of the evidence – gang enhancement


       Appellants contend there is insufficient evidence to support the jury’s true findings
on the gang enhancement allegations. They specifically contend the prosecution relied
almost entirely on expert testimony and this testimony was deficient.




                                            22
       a. Applicable law


       “In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate
a witness’s credibility. [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 210
[internal quotation marks omitted].)
       It is well settled that expert testimony may be used to prove a gang enhancement.
(People v. Vang (2011) 52 Cal.4th 1038, 1048; People v. Hernandez, supra, 33 Cal.4th at
pp. 1047-1048; People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Indeed, “‘[e]xpert
opinion that particular criminal conduct benefited a gang’ is not only permissible but can
be sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement.
[Citation.]” (People v. Vang, supra, 52 Cal.4th at p. 1048.)
       Expert testimony concerning the culture, habits, and psychology of gangs is
permissible because these subjects are “sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a); see
also People v. Gardeley (1996) 14 Cal.4th 605, 617.) Gang experts may testify regarding
certain activities of the gang even though they may parallel the elements of the criminal
street gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The expert
also may testify concerning whether the defendant acted for the benefit of a gang, even
though it is an ultimate factual issue for the jury to decide, because these are matters far

                                              23
beyond the common experience of the jury. (People v. Hill (2011) 191 Cal.App.4th
1104, 1120; People v. Valdez, supra, 58 Cal.App.4th at pp. 508-510.) In addition, an
expert’s testimony is admissible concerning an individual’s membership in a gang, the
primary activities of a specific gang, the motivation for a particular crime, and gang-
related tattoos. (People v. Hill, supra, 191 Cal.App.4th at p. 1120.)


       b. Analysis


       Here, the gang expert testified that robberies, including take-over and smash-and-
grab robberies of jewelry stores, were one of the primary activities of SBCC. He also
testified that SBCC was a “tight knit” gang and was not a gang that “will just let anybody
go and do [crimes like takeover robberies] without them.” This is sufficient to support
the expert’s testimony, in response to a hypothetical based on the facts of the case, that
the attempted robbery was at the direction of the SBCC, and also in association with and
for the benefit of the SBCC.
       Appellant Hill contends that the expert’s opinion that the robbery would have
“benefited the gang because the jewelry could be turned into cash to buy narcotics [to
then sell] stretches any realistic requirements of actual evidence of gang motivation.”
Assuming Hill is correct that the proposed use of the cash strains credulity and is
speculative, the essence of the opinion is sound: SBCC committed jewelry store
robberies to obtain jewelry which could be converted to cash to finance the ongoing
activities of the gang.
       Appellant Hill also contends that there is no evidence that “gang membership or
the apparatus of the gang” were relied upon or played any role in the burglary and
attempted robbery” and hence no evidence to support a finding that the crimes were
committed “in association with” a criminal street gang. Hill relies on People v. Albillar,
supra, 51 Cal. 4th at page 60, for this evidentiary requirement. In that case, the court
found sufficient evidence that defendants relied on their common gang membership and
the apparatus of the gang in committing the charged crimes. (Ibid.) Much of this

                                             24
evidence came from the gang expert who testified in part that gang members chose to
commit crimes together because, “‘[t]hey can trust on each other’s loyalties. They can
handle contingencies that may arise during the commission of [the] crime that they did
not plan for initially.’” (Id. at p. 60-61.) “In addition, the bonds within the gang ‘would
keep people from ratting on their own gang’ to the police about the crimes that gang
members were committing.” (Id. at p. 61.) The remainder of the evidence came from the
defendants concerted activities in committing the crimes.
       Similar evidence was present here. There was ample evidence that appellants
acted in concert with each other, Lincoln, and the unidentified fourth man. Lincoln
assessed the jewelry store, left, then returned with appellants and the fourth man. They
wore gloves and brought hammers to break through the glass cases in the store. The men
broke at least some of the glass cases before fleeing from the victim’s gunfire.
       The gang expert testified that SBCC gang members “do it among themselves.
[SBCC] is not a gang that will just let anybody go and do stuff like this without them.”
The expert explained: “There is a reason for that. The term ‘snitch.’ They don’t want to
take someone that is not going to be loyal to the gang. [¶] You really have to have a
close knit group when you do stuff like this because they don’t want the weak individual
to wind up” in police hands. This is very similar to the expert’s testimony in People v.
Albillar, supra, 51 Cal. 4th at pages 60-61. There was also evidence that Baskin went to
Lincoln’s aunt’s house, a known gang hangout, to seek assistance after he was
(unexpectedly) wounded. Thus, he relied on the gang apparatus to handle a contingency
that occurred during the crimes.
       Appellants also rely on In re Daniel C. (2011) 195 Cal.App.4th 1350, People v.
Ramon (2009) 175 Cal.App.4th 843, and In re Frank S. (2006) 141 Cal.App.4th 1192 to
show insufficiency of the evidence. Their reliance is misplaced.
       In re Daniel C. involved a minor who was an affiliate of a gang and who
committed a robbery while accompanied by an admitted gang member and a gang
affiliate. The gang enhancement was found true even thought the minor said no gang
words and made no gang signs, and his companions were not involved in the crime. The

                                             25
Court of Appeal reversed the true finding on the gang enhancement because there was
“no evidence that the minor acted in concert with his companions. [The minor’s]
companions left the store before he picked up the [stolen item], and they did not assist
him in assaulting [the victim].” (In re Daniel C., supra, 195 Cal.App.4th at p. 1361.)
Here, as we discuss, supra, there was ample evidence that appellants acted in concert
with each other, with Lincoln and with the unidentified fourth man.
       In re Frank S., involved a gang affiliate who committed the crime of carrying a
concealed dirk or dagger. The gang enhancement was found true even though he was
arrested alone. The minor told police that “he had been jumped two days prior and
needed the knife for protection.” There was no evidence that the minor had any reason to
expect to use the knife in a gang-related crime. The Court of Appeal reversed the true
finding, holding: “To allow the expert to state the minor’s specific intent for the knife
without any other substantial evidence opens the door for prosecutors to enhance many
felonies as gang-related and extends the purpose of the statute beyond what the
Legislature intended.” (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Here,
appellants committed the charged crimes in concert with fellow gang members, and there
was evidence that robbery was a primary activity of their gang. This is sufficient to
create an inference that appellants had the requisite specific intent. (See People v.
Albillar, supra, 51 Cal.4th at pp. 60-61.)
       People v. Ramon involved a gang member who was convicted of receiving a
stolen vehicle, being a felon in possession of a firearm and carrying a loaded firearm in
public; the gang enhancement allegations to those crimes were found true. Ramon was a
gang member, was accompanied by another gang member, and was stopped in his gang’s
territory. The gang expert relied on identical hypothetical facts as the basis for his
opinion that the crimes were committed for the benefit of the gang. The Court of Appeal
reversed the true finding on the gang enhancement, ruling that these facts did not support
the expert’s opinion. The court concluded that “[t]he analysis might be different if the
expert’s opinion had included ‘possessing stolen vehicles’ as one of the activities of the
gang.” (People v. Ramon, supra, 175 Cal.App.4th at pp. 852-853.) Here, the expert’s

                                             26
opinion was that take-over and smash and grab robberies of jewelry stores were one of
appellants’ gang’s primary activities.
       Appellant Baskin also cites People v. Ochoa (2009) 179 Cal.App.4th 650 for the
proposition that the gang expert’s testimony alone was insufficient to support the gang
enhancement. The Court of Appeal explained that the expert testimony alone was
insufficient because “‘[T]he record must provide some evidentiary support, other than
merely the defendant’s record of prior offenses and past gang activities or personal
affiliations, for a finding that the crime was committed for the benefit of, at the direction
of, or in association with a criminal street gang.’ [Citation.]” (Id. at p. 657) There was
no such support in Ochoa, however, because the defendant made no gang references
during the crimes and acted alone. (Id. at p. 653.) As we discussed, the crimes in this
case involved at least three gang members acting in concert to commit a crime that was
one of the primary activities of their gang. Thus, there was something more than just the
gang expert’s testimony.


       4. Consciousness of guilt instruction


       Appellants contend that the trial court violated their due process rights
by instructing the jury with CALCRIM No. 372, which permits the jury to infer
consciousness of guilt from flight. They contend the instruction is legally incorrect and
was not supported by the evidence.4
       The trial court instructed the jury on CALCRIM No. 372 as follows: “If a
defendant fled or tried to flee immediately after the crime was committed, that conduct
may show that he was aware of his guilt. If you conclude that a defendant fled or tried to
flee, it is up to you to decide the meaning and importance of that conduct. However,
evidence that a defendant fled or tried to flee cannot prove guilt by itself.”


       4
         Appellant Hill makes these contentions in his opening brief. Appellant Baskin
joins in Hill’s contentions and has also filed a supplemental letter brief on this issue.

                                               27
       a. Standard of review


       A claim of instructional error is reviewed de novo. (People v. Cole (2004) 33
Cal.4th 1158, 1210.) “The proper test for judging the adequacy of instructions is to
decide whether the trial court ‘fully and fairly instructed on the applicable law . . . .’
[Citation.] ‘“In determining whether error has been committed in giving or not giving
jury instructions, [the reviewing court] must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.]’ [Citation.]” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.)


       b. CALCRIM No. 372 is a correct statement of the law


       Appellants contend CALCRIM No. 372 permits an irrational inference of guilt.
Appellants are mistaken.
       As appellants acknowledge, the California Supreme Court approved CALJIC
No. 2.52, the predecessor instruction to CALCRIM No. 372. (People v. Pensinger
(1991) 52 Cal.3d 1210, 1243; see also People v. Mendoza (2000) 24 Cal.4th 130, 179-
180.)5 Appellants contends that CALCRIM No. 372 differs significantly from CALJIC
No. 2.52 because the CALCRIM instruction uses the phrase “aware of his guilt” which is
not found in the earlier CALJIC instruction. They contend that the CALCRIM phrase
equates flight with guilt.
       Appellants acknowledge that the Fifth District Court of Appeal rejected this claim
in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, but argue this case is wrongly

       5
         The Ninth Circuit has upheld instructions permitting consciousness of guilt to be
inferred from false statements. (United States v. Perkins (9th Cir. 1991) 937 F.2d 1397,
1401-1402.)

                                              28
decided. We agree with our colleagues in the Fifth Appellate District that the use of the
term “aware of his guilt” does not create a different inference than the one permitted by
the earlier CALJIC instruction. (People v. Hernandez Rios, supra, 151 Cal.App.4th at
pp. 1158-1159.) CALCRIM No. 372 does not permit an irrational inference of guilt.
       Appellants also contend CALCRIM No. 372 permits the jury to give evidence of
flight whatever weight the jury chooses and even to make it the determinative factor in
their deliberations. They conclude this violated their right to be convicted only upon
proof of each element of the crime beyond a reasonable doubt. We do not agree.
       The language of CALCRIM No. 372 states, “it is up to you to decide the meaning
and importance of that conduct.” This language is very similar to the language of its
predecessor instruction, CALJIC No. 2.52, which told the jury, “[t]he weight to which
this circumstance is entitled is a matter for you to decide.” We see no meaningful
difference between the two phrases.
       The California Supreme Court has repeatedly rejected the claim that CALJIC
No. 2.52 reduced the prosecutor’s burden of proof. CALJIC No. 2.52 makes “clear to the
jury that certain types of deceptive or evasive behavior on a defendant’s part could
indicate consciousness of guilt, while also clarifying that such activity was not of itself
sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and
significance assigned to such behavior. The cautionary nature of the instructions benefits
the defense, admonishing the jury to circumspection regarding evidence that might
otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that
these consciousness-of-guilt instructions did not improperly endorse the prosecution’s
theory or lessen its burden of proof.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224
[italics added]; see also, e.g., People v. Boyette, supra, 29 Cal.4th at pp. 438-439.) We
likewise reject appellants’ similar claim concerning CALCRIM No. 372.
       Further, nothing in CALCRIM No. 372 negated multiple other instructions given
in this case concerning the jury’s fact-finding duties, including CALCRIM Nos. 200
(Duties of Judge and Jury), 220 (Reasonable Doubt), 226 (Witnesses), 251 (Union of Act
and Intent: Specific Intent or Mental State), and 302 (Evaluating Conflicting Evidence).

                                             29
       c. CALCRIM No. 372 was properly given in this case


       Appellants claim that the four suspects fled to escape the victim’s shooting and so
it was improper for the trial court to give a flight instruction. There is sufficient evidence
of flight to support the instruction.
       Both appellants not only left the store where the victim was shooting, but
continued to flee. Baskin went to Lincoln’s home. Hill fled to the park across the street
from the store, where he apparently collapsed from his gunshot wounds. He was found
by police in the middle of the park toward the alley. These circumstances are sufficient
evidence to support the flight instruction for both appellants. (See People v. Bradford
(1997) 14 Cal.4th 1005, 1054-1055 [it is well-established that flight does not require the
physical act of running away from the crime scene; all it requires is that the defendant
intended to avoid being seen or arrested].)
       Further, the trial court instructed the jury that it only needed to use those
instructions given by the court that applied to the facts that the jury found true.
Specifically, the court instructed with CALCRIM No. 200 (Duties of Judge and Jury) in
pertinent part, “Some of these instructions may not apply, depending on your findings
about the facts of the case. [Do not assume just because I give a particular instruction
that I am suggesting anything about the facts.] After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.”


       d. Any error was harmless


       Even assuming for argument’s sake that the trial court committed instructional
error in giving CALCRIM No. 372, such error was harmless under any standard of
review. (See, e.g., Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson,
supra, 46 Cal.2d at p. 836.) As we discuss in section 1, supra, the evidence of
appellants’ guilt on the robbery and burglary charges was overwhelming. The jury



                                              30
acquitted appellants of the most serious charge of murder, showing that the jury was not
misled into believing that appellants were guilty simply because they left the scene.


        5. Prosecutorial misconduct


        Appellant Baskin contends the prosecutor committed misconduct when he stated,
“We hear argument about the defendants not having guns. How do we know that? We
know they had hammers, but we don’t know that they didn’t have guns.” Appellant Hill
joins in appellant Baskin’s claims. We agree, but find the error harmless.
        Respondent contends appellant Baskin waived this claim by failing to object.
Baskin contends that any objection on his part would have been futile because appellant
Hill’s counsel objected and was overruled. We agree that an objection would have been
futile, and so the claim is cognizable on appeal. (People v. Arias (1996) 13 Cal.4th 92,
159.)
        The prosecutor is given wide latitude during closing arguments to make statements
supported by the evidence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) The
prosecutor is not permitted to go beyond the evidence and speculate or to substantially
misstate the evidence. (People v. Gonzales (2011) 51 Cal.4th 894, 947.)
        There was no evidence that appellants or their accomplices had guns. There was
no evidence from which a reasonable juror could infer appellants or their accomplices
had guns. The prosecutor’s comments invited the jury to speculate that appellants or
their accomplices had guns. This was improper.
        The prosecutor’s remarks were harmless, however, under any standard of review.
(See, e.g., Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46
Cal.2d at p. 836.) The jury acquitted appellants of the most serious charge of murder,
indicating that the jury did not speculate that appellants were armed during the robbery
and thereby provoked the victim’s shooting. There was overwhelming evidence that
appellants committed the burglary and attempted robbery.



                                            31
       6. Romero 6 motions


       Each appellant contends the trial court erred in denying his motion to dismiss one
or more prior strike convictions, and thereby violated his constitutional rights.


       a. Applicable law


       “[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, . . . the court . . . must
consider whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17
Cal.4th 148, 161.)
       A court’s ruling on a motion to strike a prior conviction is reviewed under the
deferential abuse of discretion standard. Under that standard an appellant who seeks
reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is
not enough to show that reasonable people might disagree about whether to strike one or
more of his prior convictions. “Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in conformity with the spirit
of the law,” the reviewing court must affirm the trial court’s ruling even if it “might have
ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 310;
see People v. Carmony (2004) 33 Cal.4th 367, 373.)




       6
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                              32
       b. Baskin’s motion


       In his motion to strike, appellant Baskin conceded that he went into the jewelry
store with appellant Hill, Lincoln and a third male for the purpose of committing a
“smash and grab” theft. Baskin described his role as carrying the bag. He pointed out
that no jewelry was actually stolen. Appellant Baskin argued that mitigating factors in
his favor were his current age, his age of 21 years when he committed his “strike”
offense, his large, supportive family, his 10-year-old son, and his criminal history. He
claimed that he “matured as a person and as a father,” and that he “has grown spiritually.”
Appellant Baskin also claimed that his current offenses were for financial reasons only,
and that he did not intend to hurt anyone, as indicated by his and his accomplices’ lack of
weapons other than the hammers.
       Appellant’s motion was accompanied by letters from his grandmother, mother,
stepfather, two aunts, and a woman who used to babysit him, and also by a statement
about an interview of jail chaplain Kevin Cannon. The chaplain said that he had met with
appellant weekly for one hour since January 2011, and that appellant was “a ‘sensitive,
sincere person who wants to change.’” The chaplain also said that appellant had told him
that he was innocent, and the chaplain believed appellant. The chaplain stated that
incarcerating appellant would do a great disservice to appellant’s son, the city and the
community.
       The court recognized that Baskin had the support of his family, but pointed out
“that’s sort of a two-edge sword . . . because when looking at 1385 in this area, . . . if we
were to look at [appellants’] support, their backgrounds and things of that nature, one
would say perhaps, just perhaps, these two young people shouldn’t be here, not only
should they not be here in this case but in any other case in the past because you have the
support that many people do not have, have never had.” The court continued, explaining,
“because we are looking at the interests of justice in the totality, no matter how perhaps a
court feels personally, when we’re looking at the totality of the circumstances, as to Mr.
Baskin, the court would be abusing its discretion in striking his prior. . . . I think that Mr.

                                              33
Baskin was just released on parole . . . either from the state prison or from parole or
active on parole.”
       We see no abuse of discretion in the trial court’s denial of Baskin’s motion. The
court’s discussion of family support shows that the court carefully considered the
mitigating factors in this case, but concluded that they did not outweigh the aggravating
factors, which included the current crime and Baskin’s criminal history. The current
crime was pre-planned and coordinated, and given that it involved four perpetrators, at
least two of whom carried hammers, it carried the risk of violence. That violence in fact
materialized. Baskin had a lengthy criminal record, beginning when he was 16 years old.
He suffered his prior strike conviction in April, 2006, when he was 21 years old, and
violated his parole in that matter in September, 2009. Since the trial court properly
considered the nature and circumstances of appellant’s current and prior convictions and
the particulars of his background, character and prospects, and reached an impartial
decision, that trial court did not abuse its discretion. (See People v. Williams, supra, 17
Cal.4th at pp. 161-164.)
       Baskin’s reliance on People v. Cluff (2001) 87 Cal.App.4th 991 to show an abuse
of discretion is misplaced. The defendant in Cluff committed a technical violation of
section 290 by failing to update his address on his birthday, but did so without an intent
to deceive and without undermining the purpose of the law, since his existing registered
address was accurate and police could easily locate him. (Id. at pp. 1001-1003.) There
was no evidence he had committed any sex crimes since he left prison almost 10 years
earlier, and a court-appointed psychologist opined that with probation supervision and
participation in a treatment program, Cluff would not re-offend. (Id. at p. 1002.) In
contrast, Baskin’s criminal conduct was not merely a technical violation of the law, and
Baskin re-offended quite soon after being released from custody. Baskin offered no
expert testimony that he was unlikely to re-offend. Thus, People v. Cluff, supra, does not
assist Baskin.




                                             34
       c. Hill’s motion


       In his motion to strike, appellant Hill stated that he grew up in poverty, raised by
an alcoholic and physically abusive mother who eventually moved with him to his
grandmother’s overcrowded house. After his great-grandmother and great-uncle died
within a month of each other in 2002, appellant was depressed, but did not receive
treatment for his depression. He did poorly in school, but received little help. His
limited intellectual functioning impaired his ability as an adult to make good decisions.
       Appellant Hill claimed he became a gang “drop out” during his two years in jail
awaiting trial in this matter. He was “deeply saddened at the loss of life-long friend”
Lincoln, whose death “impressed on Mr. Hill the need to turn his life around.” He was
“highly remorseful” for his crimes. Hill argued that another mitigating circumstance was
his “near death experience” from being shot at by the victim and seriously injured,
including forcing him for over a year to be wheelchair-bound as he learned to walk again.
His defense counsel wrote, “Often when someone has a near-death experience[,] they
may be highly motivated to change any negative things in their life and work to become a
more productive, positive member of society.”
       Appellant Hill’s two strike priors for robbery arose from the same case; one was a
residential robbery, the other a commercial robbery. Appellant Hill claimed that he had
committed two jewelry snatchings in the Metro area when he had been homeless, and that
he had used the money from the jewelry to pay for motels. He also claimed that he did
not have a weapon.
       The court recognized that “Mr. Hill, albeit he hasn’t had the support perhaps that
Mr. Baskin has had, but he still has all those relatives that have been there for him and are
still there for him and that many other people have not had. I believe that he was released
from custody a few months before this incident. And parole discharge date would have
been 5-14-13. [¶] So when the court is looking at the totality of the circumstances as to
Mr. Hill, . . . it would appear irrespective of his perceived lack of opportunities, that the
interests of justice would even less be served to him than as to Mr. Baskin. So, therefore,

                                              35
when looking at the totality of the circumstances, again, the court would believe that I
would be abusing my discretion if I struck any of the strikes for Mr. Hill.”
       We see no abuse of discretion in the trial court’s denial of Hill’s motion. The
court’s discussion of family support, including the fact that Hill did not have as much
support as Baskin, shows that the court carefully considered the mitigating factors in this
case, but concluded that they did not outweigh the aggravating factors, which included
the current crime and Hill’s criminal history. The current crime was pre-planned and
coordinated. Hill admitted that he was one of the men carrying a hammer. Given that the
crimes involved four perpetrators, at least two of whom carried hammers, it carried the
risk of violence. That violence in fact materialized. As the court recognized, Hill had
only recently been released from custody when he committed the crimes in this matter,
and was still on parole from his prior convictions. Since the trial court properly
considered the nature and circumstances of appellant’s current and prior convictions and
the particulars of his background, character and prospects, and reached an impartial
decision, that trial court did not abuse its discretion. (See People v. Williams, supra, 17
Cal.4th at pp. 161-164.)
       To the extent that appellant Hill also relies on People v. Cluff, supra, 87
Cal.App.4th 991, that reliance is misplaced for the same reasons that Baskin’s reliance is
misplaced.




                                             36
                                  III. DISPOSITION


             The judgments are affirmed.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           MINK, J.*




We concur:




      TURNER, P. J.




      MOSK, J.




      *
        Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                           37
