Filed 10/8/13 P. v. Falcon CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX


THE PEOPLE,                                                                2d Crim. No. B237163
                                                                        (Super. Ct. No. BA375870-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

JORGE FALCON,

     Defendant and Appellant.



                   Jorge Falcon appeals from the judgment following his conviction by jury of
willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187/664, subd.
(a)),1 with findings that the crime was for the benefit of a criminal street gang, and that
appellant used a firearm. (§§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b), (c) &
(e)(1).)2 The trial court sentenced him to state prison for 30 years to life, including a
consecutive 10-year gang enhancement. (§ 186.22, subd. (b)(1)(C).)
                   Appellant contends: (1) the gang benefit and personal firearm use findings
are not supported by substantial evidence; (2) the trial court violated his constitutional
rights by allowing the prosecutor to ask the gang expert hypothetical questions which

         1
             All statutory references are to the Penal Code unless otherwise stated.
         2
        Appellant's codefendants, Luis Secaida and Jaime Garcia are not parties to this
appeal. A separate jury decided their case, in simultaneous proceedings before the same
court.
included appellant's name, and counsel's failure to object to such questions deprived him
of the effective assistance of counsel; (3) the court abused its discretion by denying
appellant's request to disclose confidential juror information; and (4) the court erred by
imposing a 10-year gang enhancement for premeditated attempted murder. Respondent
correctly agrees with the last contention. We will strike the gang enhancement and
remand the matter to the trial court with directions. In all other respects, we affirm the
judgment.
                           Factual and Procedural Background
              On August 28, 2009, the victim, Jorge Ramirez, stood near a tattoo shop in
the 4400 block of South Avalon Boulevard, in Playboys gang territory. It was daylight,
and a few other people were there, including Ramon Guerra, and "Cricket," a Playboys
gang member. A gold sports utility vehicle (SUV), possibly a Jeep, slowly passed by,
twice, with three men inside. On its second pass, the SUV occupants threw gang signs,
and called out "41." They also shouted derogatory terms for the Playboys gang, like
"Peanut Butters," or "fuck putas." The SUV occupants were later identified as appellant,
Luis Secaida and Jaime Garcia, who are 41st Street gang members with visible gang
tattoos.
              Garcia parked the SUV. Appellant and Secaida got out and walked slowly
toward the tattoo shop. Appellant, who wore a black "hoodie," pulled a gun from his
waistband, and Ramirez ran away. Appellant shot at him. Secaida pulled out a gun,
pointed toward Ramirez, and fired.
              Los Angeles Police Department (LAPD) Officer Jose Vaca and his partner
arrived at the crime scene shortly after the shooting. They recovered six .32 caliber shell
casings, approximately 20 feet from the tattoo shop. Three months later, appellant was
detained and searched on an unrelated matter. The search yielded a gun, which
subsequent testing showed had fired the casings found at the crime scene.
              Officers interviewed Ramirez and Guerra on multiple occasions after the
shooting. After several months, Guerra identified appellant as the shooter. Ramirez


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identified appellant and Secaida and said they both shot at him from "point range" while
he was with Playboys members.
              Appellant told investigating officers that he was with Secaida (Grinch) and
Garcia (Chaos) before the shooting. He denied that he fired a gun at the Playboys, and
said Secaida had the gun, which he gave to appellant after the shooting.
              Ramirez and Guerra did not identify anyone at trial. They testified they had
been unable to identify anyone before trial. Ramirez testified he did not place his initials
on the photo lineup displays that bear his initials. Guerra testified that officers forced
him to select photos from the lineups, and he could not recall what he told them.
              Prosecution gang expert Officer Nathan Brown testified that he received in-
field training with experienced gang officers, two years of crime suppression experience
in LAPD's Metropolitan Division, and that he had regular contact with multiple Black
and Hispanic gangs in that Division. He then worked in the Newton Division gang unit
for two years, where he received additional training and experience in gang crime
investigation and gang suppression activities. His primary gang unit assignment included
the 83-member 41st Street gang and its much larger rival, the Playboys gang. They have
a multi-year feud over territory located near the shooting scene. Brown subsequently
became a patrol officer in the Newton Division, and regularly encountered the 41st Street
and Playboys gangs and continued to monitor their activities. He has testified as a gang
expert and he shares his expertise with other officers investigating gang-related crimes.
                                       DISCUSSION
                               I. Sufficiency of the Evidence
              Appellant argues that there is not sufficient evidence to support the gang
benefit and personal weapon use findings. We disagree.
              "In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence‒ that is, evidence that is reasonable,
credible, and of solid value‒ from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in

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support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither
reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v.
Albillar (2010) 51 Cal.4th 47, 59-60.)
                               A. Gang Benefit Enhancement
              We reject appellant's claim that the gang enhancement is not supported by
substantial evidence. The gang enhancement statute imposes additional consequences
when crimes are committed for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1).) An essential element of a criminal street gang is that one of its "primary
activities" is the commission of specified criminal offenses. (Id., subd. (f).) "The phrase
'primary activities,' as used in the gang statute, implies that the commission of one or
more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal'
occupations." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Assault with
deadly weapons or force likely to produce great bodily injury, robbery, murder, attempted
murder, gun possession and auto theft are among the crimes enumerated in the gang
statute. (§ 186.22, subd. (e)(1)-(3), (23) & (25); see People v. Vy (2004) 122 Cal.App.4th
1209, 1226 [attempted commission of enumerated crimes also falls under gang statute].)
To make the required showing, the prosecution may rely on evidence of the crimes
charged against the defendant, evidence of crimes committed by other gang members,
and expert testimony regarding the gang's activities. (Sengpadychith, at pp. 323-324.)
              Prosecution gang expert Officer Brown testified that the primary activities
of the 41st Street gang are "murder, robbery, vandalism, auto theft, weapons violations,
and possession of automatic weapons." Brown testified regarding Jose Garcia, the self-
admitted 41st Street member who was convicted in 2009 for second degree murder and
assault with a firearm, predicate offenses that he committed in January 2007. Brown
spoke with the officer who arrested Jose Garcia for the 2007 offenses.


                                              4
              Although Brown testified that the 41st Street gang committed crimes listed
in the gang statute, appellant argues the prosecution failed to present adequate evidence
of the 41st Street gang's primary activities. In so arguing, he relies in large part on
In re Alexander L. (2007) 149 Cal.App.4th 605. Alexander L. does not help him. There,
the gang expert testified that the subject gang "'committed quite a few assaults with a
deadly weapon, several assaults,'" and had been "'involved in murders'" and "'auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Id. at p.611.) The appellate
court concluded the testimony was insufficient to establish the gang enhancement
because (1) the expert admitted that the "vast majority" of cases connected to the gang
were "graffiti related;" and (2) his testimony lacked an adequate foundation: "[i]t is
impossible to tell whether his claimed knowledge of the gang's activities [was] based on
highly reliable sources, such as court records of convictions, or entirely unreliable
hearsay." (Id. at p. 612.)
              In contrast, gang expert Brown acquired extensive personal knowledge of
the 41st Street and Playboys gangs in the Newton Division gang unit, and as a patrol
officer in that Division. In addition to having hundreds of personal contacts in those
gangs, Brown reviewed field investigation records and reports pertaining to the gangs,
and consulted other officers regarding the gangs' crimes. The certified records of
convictions for the predicate crimes and Brown's testimony evidenced that the 41st Street
gang's primary activities included crimes enumerated in the gang statute. (People v.
Duran (2002) 97 Cal.App.4th 1448, 1465 [testimony of a gang expert, founded on
conversations with gang members, personal investigation of crimes committed by gang
members, and information from colleagues in other law enforcement agencies, may be
sufficient to prove a gang's primary activities].) People v. Martinez (2008) 158
Cal.App.4th 1324, 1330.)
                               B. Firearm Use Enhancement
              Viewing the evidence as we must, in the "light most favorable to the
judgment," we reject appellant's claim that there is not sufficient evidence to support the
jury's finding that he personally used a firearm. (People v. Albillar, supra, 51 Cal.4th at

                                              5
pp. 59-60.) Appellant admitted he was at the shooting scene. He was in possession of
the gun months after the shooting. He nonetheless claims there was not sufficient
evidence to support the finding that he personally used a firearm, and stresses that
Ramirez and Guerra failed to identify him as the shooter at trial. However, the jury heard
other evidence that they identified him as the shooter before trial. The evidence supports
the jury's finding that the firearm use allegation is true. (See People v. Cuevas (1995) 12
Cal.4th 252, 257 [identification is sufficient to support a conviction, even if the witness is
unable to positively identify the defendant at trial].) "Whether a defendant 'used a
firearm in the commission of' [a crime] is for the trier of fact to decide." (People v.
Masbruch (1996) 13 Cal.4th 1001, 1007.) We neither reweigh evidence nor reevaluate
the credibility of witnesses. (Albillar, supra, at p. 60.)
                                 II. Hypothetical Questions
              Appellant contends the trial court committed prejudicial error and violated
his constitutional right to due process and a fair trial by allowing the prosecutor to pose
hypothetical questions using his name, and the codefendants' names, which "allowed the
expert to opine that appellant was the shooter." We disagree.
              "As a general rule, a trial court has wide discretion to admit or exclude
expert testimony." (People v. Page (1991) 2 Cal.App.4th 161, 187.) "We apply an abuse
of discretion standard in reviewing a trial court's decision to admit the testimony of an
expert." (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
              Evidence Code section 805 provides that "[t]estimony in the form of an
opinion that is otherwise admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact." (People v. Prince, supra, 40 Cal.4th at p. 1227;
People v. Valdez (1997) 58 Cal.App.4th 494, 507 [a gang expert testified that the
defendant was a member of a particular gang and that his activities were undertaken on
behalf of the gang].) "Hypothetical questions must not be prohibited solely because they
track the evidence too closely, or because the questioner did not disguise the fact the
questions were based on the evidence." (People v. Vang (2011) 52 Cal.4th 1038, 1051.)


                                               6
                Appellant argues that the challenged hypothetical questions are prejudicial
because "it was disputed [he] was the shooter" and the expert's opinion told the jury
appellant "was the actual gang member who displayed the gun and fired." We disagree.
Appellant bases his claim of prejudice on the false premise that the gang expert opined
that he was the shooter. The expert's opinion did not even address the identity of the
shooter. Rather, it addressed the purpose of a hypothetical crime. The expert opined the
hypothetical crime was committed for the purpose of benefitting a criminal street gang.
We thus reject appellant's claim that the court erred prejudicially by allowing the
prosecutor to pose the hypothetical questions.3
                              III. Confidential Juror Information
                Appellant contends the trial court abused its discretion by denying his
petition for disclosure of personal juror information. We disagree.
                On October 6, 2011, the jury returned its verdict, including its finding that
appellant personally used a firearm. Jurors Nos. 2 and 7 were visibly upset. The trial
court polled the jury, and each juror expressed agreement with the verdict. A day after
the verdicts were returned, juror No. 7 spoke ex parte with the trial court. A reporter
recorded their meeting.4
                On October 19, 2011, the sentencing date, counsel filed a petition seeking
disclosure of juror information regarding jurors Nos. 2 and 7, because he believed other
jurors may have coerced them. Counsel cited the emotional distress of both jurors in
court, and described having later seen juror No. 7 "by the elevators in a daze," with
another juror consoling her. During proceedings on October 19th, the trial court advised
counsel of its meeting with juror No. 7, who had concerns about "whether or not

       3
         Our resolution of this issue defeats appellant's related claim that he was denied
the effective assistance of counsel because trial counsel failed to object to the improper
hypothetical questions using his name. To establish such a claim, he would have to
demonstrate prejudice, i.e., a reasonable probability that the result of the proceeding
would have been different if counsel had objected. (Strickland v. Washington (1984) 466
U. S. 668, 687-688.) Appellant has failed to demonstrate such prejudice.
       4
           The propriety of that meeting is not in issue.
                                                7
[appellant] personally discharged the firearm." While discussing the matter, the court
recalled having asked juror No. 7 whether there was any pressure to vote as she had, and
said she responded with an "unequivocal, 'No.'" The court noted that many jurors were
emotionally affected by the decision, which made sense, given the extremely serious
charges, appellant's young age, and other factors. The court also observed that juror
No. 7 did not seem to be "a likely candidate to be . . . pressured in an unlawful manner,
with respect to the ultimate verdict that she represented on the record in fact was her
own." The court ordered the reporter to provide counsel a transcript of the meeting with
juror No. 7, and invited counsel to submit further authority.
              On November 3, 2011, the court denied the petition because there was not
"a sufficient showing . . . of any juror misconduct that would necessitate or warrant
disclosure of the [requested] contact information."
              After a criminal jury verdict is recorded, all identifying juror information is
sealed until further order of the trial court. (Code Civ. Proc., § 237, subd. (a)(2).) A
defendant may "petition the court for access to personal juror identifying information
within the court's records necessary for the defendant to communicate with jurors for the
purpose of developing a motion for new trial or any other lawful purpose." (Code Civ.
Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes
facts sufficient to establish good cause for the release of the juror's personal identifying
information. The court shall set the matter for hearing if the petition and supporting
declaration establish a prima facie showing of good cause for the release" of the
requested information. (Code Civ. Proc., § 237, subd. (b).)
              Good cause for disclosure of juror information to support a motion for new
trial based on juror misconduct is "a sufficient showing to support a reasonable belief that
jury misconduct occurred." (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; People
v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) There is not good cause where allegations
of jury misconduct are speculative, conclusory, or unsupported, or the alleged misconduct
is not "likely to have influenced the verdict improperly." (Evid. Code, § 1150, subd. (a);


                                              8
see Rhodes, at p. 554.) We review the denial of a petition for disclosure for an abuse of
discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
              Appellant argues the trial court abused its discretion by denying his petition
for juror information because there was "undue pressure or coercion in the deliberations."
He cites the emotional distress of jurors Nos. 2 and 7, and the reference by juror No. 7 to
the juror (a lawyer) who was "helping" the jury. The record supports the court's
conclusion that other factors explain the jurors' emotional reactions. The reference to the
lawyer juror's assistance does not imply coercion.
              Further, the record does not support appellant's claim that juror No. 7's
comments prove she "had a reasonable doubt." She did not state she had such doubt.
She did say she was "struggling with is whether or not [appellant] was the shooter."
"However, she then repeatedly said she thought she was having "more of an emotional
reaction . . . [after] get[ting] a sense of who [the defendants] are as people." She also told
the court that counsel had given her his business card, and she thought she would contact
him and "ask him further questions."
              Appellant stresses that the record does not show the trial court asked juror
No. 7 whether other jurors pressured her, despite the court's contrary statement. It was
not required to make that inquiry, absent evidence of juror misconduct. (People v.
Guerra (2009) 176 Cal.App.4th 933, 942.) Appellant failed to show that any conduct by
the jury was "of such a character as is likely to have influenced the verdict improperly."
(Evid. Code, § 1150, subd. (a).) "[J]urors can be expected to disagree, . . . and to attempt
to persuade disagreeing fellow jurors by strenuous and sometimes heated means."
(People v. Johnson (1992) 3 Cal.4th 1183, 1255.) A verdict may not be impeached by
inquiry into the jurors' mental processes. (People v. Steele (2002) 27 Cal.4th 1230,
1261.) The court did not abuse its discretion by denying the petition.
                       IV. 10-Year Consecutive Gang Enhancement
              Appellant argues, and respondent agrees, that because appellant was
sentenced to an indeterminate term for the premeditated attempted murder, the trial court
should not have sentenced him to a consecutive 10-year term for the gang enhancement

                                              9
for that crime. We also agree. (People v. Lopez (2005) 34 Cal.4th 1002, 1004-1007;
id. at p. 1004 [when a defendant is convicted of a felony that carries a life sentence and
the crime is gang-related, section 186.22, subdivision (b)(5) "applies and imposes a
minimum term of 15 years before the defendant may be considered for parole"].) We
will strike the consecutive 10-year gang enhancement and remand the matter to the trial
court with directions.
                                      DISPOSITION
              We strike the section 186.22, subdivision (b)(1)(C), consecutive 10-year
gang enhancement imposed for the premeditated attempted murder, and direct the trial
court to impose the 15-year minimum parole eligibility requirement set forth in section
186.22, subdivision (b)(5). The clerk of the superior court is directed to amend the
abstract of judgment accordingly, and to forward a certified copy of the amended abstract
to the Department of Corrections. In all other respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          PERREN, J.


We concur:



              GILBERT, P.J.



              YEGAN, J.




                                             10
                               Craig J. Mitchell, Judge
                        Superior Court County of Los Angeles
                         ______________________________


             Thomas Owen, under appointment by the Court of Appeal, for Defendant
and Appellant
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Blythe H.
Leszkay, Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.




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