Filed 5/17/16 P. v. Melgoza CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068797
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF148767A)
                   v.

JOSE MELGOZA,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Trinidad Ortiz was murdered on the night of September 22, 2012. The murder
investigation focused on appellant/defendant Jose Melgoza and his half brother, George
(Jorge) Chavez. The police obtained search warrants to wiretap cell phones linked to
defendant and Ortiz. The wiretaps revealed conversations that implicated defendant in
the murder. As the investigation drew near defendant and Chavez, defendant called Jose
Rizo and told him to get rid of the “burner.” Defendant, Chavez, Rizo, and Ortiz were
members of the Colonia Bakers gang. The murder weapon was found at Rizo’s house.
Based on a DNA profile obtained from the murder weapon, Rizo and Chavez were
excluded as possible contributors, but defendant could not be excluded.
       Defendant was convicted of count I, first degree premeditated murder of Ortiz
(Pen. Code, §§ 187, subd. (a), 189),1 with firearm and gang enhancements (§ 12022.53,
subds. (d), (e)(1); § 186.22, subd. (b)); count II, felon in possession of a firearm (§ 29800,
subd. (a)(1)), with a gang enhancement; and count III, active participation in a criminal
street gang (§ 186.22, subd. (a)(1)). He was sentenced to 50 years to life.
       On appeal, defendant contends the court should have granted his motion to unseal
the confidential portions of the search warrant affidavits, reveal the identities of the
confidential informants, and traverse the search warrants for the wiretaps. He also
challenges the instructions for aiding and abetting and the gang allegations, and whether
the gang enhancement was supported by substantial evidence. We affirm.




       1   All further statutory citations are to the Penal Code unless otherwise indicated.

                                               2.
                                         FACTS
                                 SEPTEMBER 22, 2012
The murder
       On the evening of September 22, 2012, Joseph Contreras was standing outside his
house on the 2100 block of Monterey Avenue. He noticed a man walk by his house. A
small black car appeared on Monterey Avenue and stopped next to the man for “[a]
second or so.” The man stood next to the passenger side of the car. No one got out of the
car. Contreras suddenly heard four or five gunshots, and the car left the area.
       At 8:37 p.m., Contreras called 911 and reported someone had just been shot and
was dying. He said a guy was walking down the street, a black car drove up and stopped
next to the man, and the man was shot. Contreras said he did not see how many people
were in the car and added: “I guess there’s two guys in the car” because “I guess he shot
from the right side  the passenger side.” Contreras said the man “was looking back”
when he was shot. He thought the black car could have been a Nissan.
       Deputy Almanza of the Kern County Sheriff’s Department responded to the scene
within a minute of the dispatch. He found Trinidad “Scooby” Ortiz lying on his back in a
puddle of blood.
       Ortiz had been shot five times in the back. He was unresponsive. He was taken to
the hospital where he died from the gunshot wounds.
       There were 8 nine-millimeter shell casings found in the street near Ortiz’s body.
All the casings had the same head stamps. A black butane torch lighter, a black “NY”
baseball cap, blue and white bloody clothes, and a clear plastic bag were also found on
the street. The bag contained a white substance of suspected narcotics.
Contacts between defendant, Chavez, and Rizo
       Law enforcement investigators obtained search warrants for forensic evidence and
wiretaps on certain cell phones. The two target cell phone numbers subject to the wiretap



                                             3.
warrants were associated with defendant (661-859-3637) and his half brother, George
“Jorge” Chavez (661-281-7629).
      The wiretaps revealed the following communications on the night of the murder.
At 7:42 p.m. on September 22, 2012, there was a two-minute call from Chavez’s cell
phone to Jose Rizo’s cell phone.
      At 8:33 p.m., a 46-second call took place between the cell phone numbers
assigned to Chavez and defendant.
      Around 8:34 p.m., about three minutes before the 911 call, there were attempted
contacts between defendant’s phone and Chavez’s phone.
      At 8:37 p.m., the bystander called 911 to report the murder.
      The call detail reports placed the cell phone number associated with defendant
near 2113 Monterey at the time of the shooting.
      At 8:57 p.m., there was a call from Chavez’s cell phone to defendant’s cell phone.
A portion of this call bounced off the cell tower near Rizo’s house. There were four calls
subsequently placed between the cell phones of Chavez and Rizo.
      Defendant’s cell phone registered multiple calls between 10:09 p.m. and 10:24
p.m., which hit cell phone towers that covered the county fairgrounds.2
                                    OCTOBER 9, 2012
Arrest of Chavez
      At 7:35 p.m. on October 9, 2010, Officer Harless conducted a traffic stop on
Chavez and arrested him on a felony warrant for a probation violation. Chavez was
wearing a Chicago Bulls cap with the letters “CB,” which Harless believed meant the
Colonia Bakers gang. Harless seized a Glock 2340-caliber semiautomatic handgun from
Chavez and a jar of marijuana. Chavez also had two cell phones. The firearm was not
the murder weapon.

      2 As we will discuss below, defendant and his mother discussed using his alleged
presence at the county fair as an alibi.

                                            4.
                                     OCTOBER 25, 2012
Defendant’s possession of the cell phones
       When Chavez was arrested, one of the two cell phones found in his possession had
the number 661-281-7629.
       Chavez remained in custody for the duration of the investigation into Ortiz’s
homicide. Krystal Garza (Garza), defendant’s girlfriend, testified that after his arrest,
Chavez contacted Elva Cortez Rayas (Rayas), the mother of both defendant and his half
brother, Chavez. Chavez told Rayas that she needed to obtain another cell phone with the
same number.3
       Garza testified that from October 25 to 28, 2012, defendant had possession of a
new cell phone with Chavez’s number of 661-281-7629. Garza testified that she shared a
cell phone with defendant that he regularly used.
       As noted above, the sheriff’s department obtained search warrants for wiretaps on
these two target cell phone numbers: 661-859-3637 and 661-281-7629.
Defendant calls Rayas
       Garza testified that on October 24 and 25, 2012, defendant was in a residential
drug treatment program.
       At 4:53 p.m. on October 25, 2012, defendant used one of the target cell phones
and called Rayas, his mother from the treatment center. The conversation was monitored
by the wiretap.
       Defendant and Rayas talked about Chavez’s arrest. Rayas said she went to
Chavez’s court hearing, the marijuana sales charge had been dropped, but he still had the
gun charge. Defendant said Chavez would have a hard time because of the gun.
       Rayas told defendant that “Smalls” already got out of jail and had called Garza’s
phone. Defendant said he needed the number for Smalls because “I have a hell of a lot of


       3   Krystal Garza testified as a defense witness.

                                               5.
people that need taken care of,” he had “about 1/2 a pound sold of work but I don’t have
the means. I don’t have anyone on the outside,” and he had not been let out yet.
Defendant said he might get a pass to go to court the next day, and he would “act like it
took a long time at court. To do something there outside.”
       Defendant said he did not know what was going to happen at court, and he would
leave if they gave him a hard time. Rayas suggested that he leave for Mexico. Defendant
said he would not go to Mexico, but he would hide out, make a little money, and then
leave “because they are going [to] give me some good time.”
       Defendant admitted he was using drugs again. Rayas became upset and asked if it
was heroin, and defendant said yes.

       “[Rayas]:    [B]ut hopefully you get rid of that habit son … because we
       will mess up our own lives son … I can’t believe all you were going
       through and you started to do that…

       “[Defendant]:        I know … but I did…

       “[Rayas]:          No, you need lots more experience … like Jorge …
       how many times did I tell you guys not carry a gun … remember … I told
       you too … you didn’t listen … right?

       “[Defendant]:      Since we went and killed that fool … I put my gun
       away … my gun is still put away…

       “[Rayas]:     No more … no more … never again…

       “[Defendant]:       My gun has not come out … I want you to know and
       understand that even though I was all f[**]ked up … I still wanted to
       change and work and do whatever I could.” (Italics added.)
Detective Conner contacts defendant’s mother
       At 5:30 p.m., Detective Conner went to Rayas’s house and spoke to her. Conner
told Rayas he was a homicide detective, he was looking for defendant, and he needed to
talk to him. Conner left his card and asked Rayas to tell defendant.




                                            6.
Detective Conner contacts Chavez
       At 7:30 p.m. on the same day, Detective Conner went to the Lerdo facility and
interviewed Chavez, who was still in custody. He asked Chavez if he knew what
happened to Trinidad Ortiz.
       Within a short time, Conner’s visits to Rayas and Chavez triggered a series of calls
between defendant, Chavez and Rizo.
Rayas tells defendant about the detective’s visit
       At 7:53 p.m., defendant called Rayas. Rayas told defendant that a detective and
two officers “came looking for you” to ask questions about “[a] dead guy.” Defendant
asked if he was the “primary suspect,” and if they asked for Chavez or him. Rayas said
they wanted to ask him questions about a dead guy.

       “[Defendant]:       …With those types of cases they are not going to ask
       me questions they are going to want to arrest me… That’s why  If they
       went to the house and they said I am a suspect…
       Rayas said defendant had proof he was at the fair and asked who saw him there.
Defendant said they were “going to have to bury me and I have to fight the case.”
Defendant added: “I was going to leave here now and hide.” Rayas said they would
follow him, and it would look guilty to run. Rayas told defendant to call the officer
tomorrow and tell him he was at the fair. Defendant said no, and that he would call
Rayas back.
Defendant calls Rizo about the “burner”
       At 8:04 p.m., defendant called Jose Rizo. Rizo asked who it was. Defendant said
it was “Little [G]uy.” Defendant asked Rizo where he was. Rizo said he was by the
southwest.

       “[Defendant]:        “Hey fool, do you still have the burner … the other
       one dude?

       “Rizo:               Yes … fool.



                                            7.
“[Defendant]:   Um … because we are going to need to throw it away
fool.

“Rizo:          You want to throw it away?

“[Defendant]:   Yes … fool.

“Rizo:          Oh … how do you want to do it or what?

“[Defendant]:   When are you going to be home?

“Rizo:          In a little bit.

“[Defendant]:   Fool my mom said a homicide detective came.

“Rizo:          Uh huh.

“[Defendant]:   And she told me they wanted to talk to me because I
                am a suspect in the death of that fool.

“Rizo:          Really?

“[Defendant]:   Yeah.

“Rizo:          Oh … because I have it well hidden fool.

“[Defendant]:   All right … if not tomorrow or ….

“Rizo:          Do you want me to move it somewhere else?

“[Defendant]:   Nah, it’s cool right there … just leave it there. Are
                you going to be at your house in the morning?

“Rizo:          Yes dude.

“[Defendant]:   I will go by there early fool.

“Rizo:          Okay … I was going to say that if you want I could
                stash it real good fool … I could take it to my sister or
                something.

“[Defendant];   Nah, just be at your house early and then I will go by
                there and go pick [unintelligible] off.”




                                   8.
Rayas calls defendant
       At 8:08 p.m., Rayas called defendant. She reported that Chavez called her and
said the detective had been out to see him.
       Rayas passed along several messages from Chavez to defendant. Chavez wanted
defendant “just to make a good zipper … that’s it.” Chavez said “everything is fine …
just close the deal … he already closed.” Chavez wanted defendant to “just tell them you
don’t know anything you were at the fair and you found out through the news… Okay?”
Defendant agreed.
       Rayas again said that Chavez wanted defendant “just to close your zipper real
good” because “they don’t have any convincing” proof and “[t]hey’re just doing a half-
assed job.” Rayas added that defendant should “[b]e real firm and look at their face and
don’t get nervous … that is what Jorge [Chavez] told me right now.”
Chavez calls defendant
       At 8:27 p.m., Chavez called defendant from jail, and told defendant not to say
anything and to “[z]ip your zipper.” Chavez said they had talked to him. Chavez and
defendant discussed whether defendant should flee. Chavez asked defendant about the
location of his cell phone. Defendant said he had it with him. Chavez said he needed
some numbers from the cell phone.
       Chavez told defendant he had to think straight, get tough, talk to their mother, not
panic, and “flee like a goat.”
Rayas and defendant talk about fleeing
       At 9:07 p.m., Rayas called defendant. Rayas told defendant that she thought he
could go to Iowa and stay with his uncle. Rayas said he needed to get his papers, and
Garza could pick up a suitcase with his clothes. Defendant agreed.
       Garza testified defendant walked out of the treatment program with her on October
25, 2012.



                                              9.
                                   OCTOBER 26, 2012
Defendant calls Rayas
       At 9:40 a.m. on October 26, 2012, defendant called Rayas from his “father-in-
law’s” house. Rayas told defendant to stay there until she reached “Javier,” apparently
referring to his uncle in Iowa. Rayas said defendant’s father had called, she told him
“what happened,” and his father wanted defendant to flee to Mexico.
       Rayas told defendant to use a cigarette to burn off the tattoo that was on his face,
even if it left a scar. Defendant agreed. Rayas told defendant not to leave his location,
and she would see what was going to happen to Chavez. Rayas was going to tell Javier
that defendant needed to leave because there were no jobs in Bakersfield.
       At 10:13 a.m., defendant called Rayas (661-316-9378). Rayas wanted to know if
defendant’s girlfriend was involved. Defendant replied, “No … they just said they saw
me in her car,” but “she is not involved in none of that.” (Italics added.) Defendant and
Rayas talked about how he should leave and decided he should take the train to avoid
detection.
       At 2:38 p.m., Rayas called defendant (661-859-3637) and passed along more
messages from Chavez. Chavez wanted defendant to stay off the streets because they
were looking for him. Defendant said he knew that.
       Defendant and Rayas discussed whether he could buy “Lupe’s” papers so he could
get a job, and whether Lupe had a clean record, because he knew he could not work with
his own papers. Defendant knew he could not use his own papers because “if I am a
suspect in that death … It’s going to show up everywhere.”
       Rayas asked defendant, “Why did you guys get involved in that,” and said his
father cried when he found out. (Italics added.) Defendant asked Rayas what she told his
father. Rayas replied, “That they were involving you in murder… He said everything is
for his f[**]ken [sic] gangs and he was crying.”



                                            10.
       Defendant said he had talked to Garza about joining him once he got situated.
Rayas said she would leave once Chavez was released, and Chavez also intended to leave
if he received probation. Rayas warned defendant to be on alert for any immigration
authorities when he was on the train to Iowa.
Defendant contacts Rizo
       At 6:29 p.m., a text message was sent from defendant’s phone to Rizo’s phone,
which said: “U get home yet?”
       At 6:33 p.m., a text message was sent from Rizo to defendant: “Give me an hour.
I’m leaving Delano.” At 6:38 p.m., a text message was sent from defendant to Rizo:
“For sure though, I need to holla ASAP.”
       At 7:13 p.m., defendant called Rizo and asked for his location. Rizo said he was
by Shafter, and he could be home in 15 minutes. Defendant told him to hurry because he
was waiting outside.
                                  OCTOBER 27, 2012
Defendant and Rayas
       At 11:35 a.m. on October 27, 2012, defendant called Rayas and said he was going
to leave “tomorrow Sunday then.”
       At 6:07 p.m., Rayas called defendant and they talked about his travel
arrangements. Rayas again passed along messages from Chavez to defendant. Chavez
wanted defendant “to scram as soon as possible” and “to save your own head and not stay
so they won’t get you.” Defendant was going to ask Garza’s mother to pay for the train
ticket with her credit card.
       At 7:33 p.m., Rayas called defendant and said it was all arranged for him to live
with their relatives in Iowa. Defendant had to take the train to Nebraska and then a bus to
Des Moines. Rayas also reported that Lupe had a clean record, and he was willing to sell
his papers to defendant. Defendant was happy because otherwise he was going to have to
steal someone else’s papers.

                                           11.
       Rayas asked defendant what he was doing with Chavez’s cell phone. Defendant
said he would leave it with Garza in case Chavez needed contact numbers. Defendant
would not take his own cell phone with him because the parole officer would track him
and discover he had left. They agreed that Garza would tell the police that she broke up
with defendant, and she did not know where he was.
       Around 10:00 p.m. on October 27, 2012, Deputy Murillo watched defendant
purchase clothing and a large suitcase at Walmart in Bakersfield.
                                   ARREST OF RIZO
       On October 27, 2012, Deputy Hudson conducted a traffic stop on Rizo and
arrested him.
Search of Rizo’s house
       After Rizo was arrested, Deputy Hudson and other officers searched Rizo’s
residence. In one bedroom, they found court documents and paperwork in Rizo’s name,
photographs of him, and paraphernalia from the New York Yankees.4
       There was a couch in this same bedroom. The officers discovered a cavity had
been cut out of the back portion of the couch. Inside that cavity, they found a steel
assault-style rifle with a 30-round magazine, and a Smith & Wesson semiautomatic pistol
lacking handgrips (serial No. A632153). The pistol was wrapped in a blue towel.
       A pillow that had been on the couch contained a plastic bag with 10 individually
wrapped bindles of marijuana. The pillow also contained two handguns: a chrome
Taurus nine-millimeter handgun with a black grip (TNG 99899); and a dark black Taurus
nine-millimeter semiautomatic handgun (TRE 08173), along with a loaded magazine and
a nylon-style holster.




       4The defense argued that Rizo was the likely gunman because of the “NY” cap
found at the murder scene, and the Yankees paraphernalia in Rizo’s bedroom.

                                            12.
Discovery of the murder weapon and defendant’s DNA
       During subsequent tests, a criminalist determined the chrome Taurus (TNG
99899) found in Rizo’s bedroom had fired the 8 nine-millimeter casings that were found
at the scene of the homicide.
       DNA samples were taken from defendant, Chavez, and Rizo, and their profiles
compared with DNA tests conducted on the trigger slide and grips of that same handgun.
The DNA profile from the gun had at least four contributors.
       Defendant could not be excluded as a major contributor to the major portion of the
DNA profile from the gun.
       Rizo and Chavez were excluded as possible contributors to the major portion of
the DNA profile, and the tests were inconclusive as to being possible contributors to the
minor portion because there was not enough information in the DNA profiles to reach
any conclusions.
                                ARREST OF DEFENDANT
       On October 28, 2012, several deputies from the Kern County Sheriff’s Department
arrested defendant at a motel in Bakersfield. Garza was with him. The deputies searched
the motel room and seized two Samsung cell phones.
       The deputies confirmed these were the same two cell phones that had been subject
to the wiretap orders: 661-859-3637 and 661-281-7629.
Defendant’s postarrest interview
       At 4:30 a.m. on October 28, 2012, Detectives Conner and Brunsell conducted a
videotaped interview with defendant. After being advised of the warnings pursuant to
Miranda v. Arizona (1966) 384 U.S. 436, defendant waived his rights and agreed to
answer questions. Conner asked defendant if he knew why he was at the sheriff’s
department. Defendant said the only thing he had done wrong was to walk away from a
men’s home and fail to appear in court.



                                           13.
          Defendant admitted he was a “Southerner,” but denied that he “ran” with anyone
on the street. Upon further questioning, defendant said he was “from Colonia” and
explained he grew up there. Detective Conner noted that defendant had a lot of gang
tattoos. Defendant acknowledged he had grown up and hung out with persons in his
neighborhood.
          Defendant said he left the group home because he had a heroin addiction, and he
wanted to “get the hell out of there and use.” Defendant said he was now coming off
heroin, was starting to “detox,” and felt terrible. Defendant said that when he “went to
prop 36, February 26th,” he knew he was not going to make it and kept giving “dirty
tests.”
          Defendant said he lived with his mother, and his brother was named George
Chavez. He last spoke to his mother on the Thursday before he left the group home.
Defendant said he had not talked to his brother for a week or so, and they had only
discussed Chavez’s case where he was beaten by the police.
          Detective Conner asked defendant if he knew Trinidad Ortiz. Defendant said he
had met him before in county jail. Conner asked defendant for Ortiz’s location.
Defendant said he did not know. Defendant said he heard Ortiz had been shot, and he
went to a carwash to raise money for him. Defendant knew Ortiz was in the Colonia
Bakers gang, and he did not know who shot him.
          Defendant denied having a car and said he either walked or got rides from his
girlfriend. His girlfriend drove a Mitsubishi Galant, which had been parked at the motel.
Defendant said he spent most of his time getting high at his mother’s house.
          Detective Brunsell told defendant that they knew he was lying about when he
talked to his mother and the topic of the conversation. Brunsell asked defendant to




                                              14.
identify the phone number 910-3364.5 Defendant he did not know. Brunsell told
defendant he had talked to someone with that number. Defendant was asked if he knew
“Doofus.” Defendant said Doofus was a buddy, and his last name was “Rizo.”
Defendant admitted he had recently talked to Rizo, but it was a brief conversation about
whether Rizo was at home.
       Detective Brunsell told defendant that at 8:04 p.m. on October 25, 2012, defendant
called Rizo and asked where he was, and Rizo replied, “the southwest.” Brunsell further
advised defendant that he asked Rizo if he still had the “burner”; Rizo said yes; and
defendant told Rizo to get rid of it. Defendant said he made these statements to Rizo so
he could get money for the gun.
Gang evidence
       The parties stipulated to the following facts relevant to the gang allegations: The
Colonia Bakers are a criminal street gang within the meaning of section 186.22.
Defendant actively participated in Colonia Bakers from September 22 to October 27,
2012, and defendant knew that members of the gang engaged in or had engaged in a
pattern of criminal gang activity. On September 22, 2012, Chavez, Rizo and Ortiz were
active participants of Colonia Bakers.
       Deputy Ryan Greer testified as the prosecutor’s expert on criminal street gangs.
He testified the primary activities of the Colonia Bakers were assaults with deadly
weapons, murders, and possession of controlled substances. Greer had investigated
crimes involving members of the Colonia Bakers and talked with various members of the
gang. Based on this background, Greer testified that members of the Colonia Bakers
commit crimes together, and “[d]oing them in tandem will oftentimes help them
accomplish these crimes in a better way. They … feed off each other and pump each

       5Based on the wiretaps of the two target cell phones, the deputies determined this
number was connected to Jose Rizo, and had monitored conversations between defendant
and Rizo.

                                            15.
other up to commit the crime, depending on what the crime is, whether it’s gun-related or
drug sells or any type of crime such as that.” Greer explained that the support of other
gang members will bolster an individual member’s confidence to commit the crime. In
gang culture, members would be looked down upon if they did not complete a crime with
another gang member.
        Deputy Greer testified that firearms were important in gang culture because they
were used for offense purposes against rivals or to support drug sales. They were also
used for defense purposes. A gang member has an elevated status if he possessed a
firearm.
        Deputy Greer further testified that when law enforcement officers contact a gang
member, the expectation within the culture is that the member will not speak to or
cooperate with an investigation. If a gang member cooperates, he will be labeled a snitch
and subject to death or other retaliatory action.
                                  DEFENSE EVIDENCE
Krystal Garza
        Krystal Garza was defendant’s girlfriend, and she was with him when he was
arrested at the motel. Garza testified she did not like Chavez because he was getting into
trouble, and she did not get along with him. Chavez was very close to Jose “Doofus”
Rizo.
        Garza testified to an alibi for defendant on the day of the murder, September 22,
2012. Sometime between 2:30 p.m. and 3:30 p.m., defendant picked up Garza from her
workplace because they were going to the fair that evening. After several delays,
defendant said that Chavez and his girlfriend were going to join them. Garza testified
that she and defendant spent about two hours getting ready to go to the fair.
        Garza testified that as they were going to leave for the fair, Chavez started
continuously calling defendant’s cell phone. Defendant told Garza, “It’s G. He’s



                                             16.
probably not going to go after all.” Garza suggested they pick up Chavez’s baby, and
defendant agreed.
       Garza testified they were driving to Chavez’s house to pick up his son when
defendant received another call from Chavez. Chavez said his son was not home, and to
meet them somewhere else. Defendant and Garza followed Chavez’s instructions and
met him a few blocks away from Monterey Street. They picked up the baby, but he was
not dressed appropriately. They drove to Chavez’s mother’s house, dressed the baby, and
then headed to the fair.
       Garza believed they arrived at the fairgrounds between 8:00 p.m. and 8:30 p.m.
She paid for three tickets, and the tickets were introduced as exhibits. She also presented
a photograph of defendant and herself taken that day. They stayed until 10:30 p.m. or
11:00 p.m.
       Garza testified defendant did not receive any calls from Chavez while they were at
the fair. After they returned home, defendant talked to Chavez. They went to Chavez’s
apartment later that night and stayed until 2:00 a.m.
       Garza admitted that she talked with defendant about his plan to move to Iowa.
Defendant wanted to move there because of problems with the Colonia Bakers gang.
Garza felt they were not safe because members of the Colonia Bakers were upset about
what happened to Ortiz, and the gang believed defendant and Chavez were involved.
       On cross-examination, Garza denied that she went with defendant to Rizo’s house.
On further questioning, Garza admitted that defendant tried to contact Rizo on October
26, 2012, and she drove to Rizo’s house that night. She claimed she stopped their car in
front of Rizo’s house and did not get out. Garza did not know why they were there.
       The prosecutor played the recording of a telephone call between Garza and Rizo,
from 8:01 p.m. on October 26, 2012. Garza admitted the call was made from the cell
phone that she shared with defendant. During the call, Rizo asked Garza where Little
Guy was, referring to defendant. Garza replied, “He’s right here. [W]e still have to do

                                            17.
something real quick. We were there but he spent a long time um … he came to do an
errand. We’ll be there right now.”
       Garza testified she stayed in a motel with defendant on October 26, 2012. Garza
had purchased a suitcase.
       Garza admitted that when she was interviewed by an investigator in 2013, she said
that they returned home from the fair around 10:30 p.m. and went to bed. She never
mentioned the story about the delays before they reached the fair, picking up Chavez’s
son, or going to Chavez’s house later that night.
Call between defendant and unknown male
       The defense introduced the recording of a call made by defendant to an unknown
man (UM1) at 5:22 p.m. on October 25, 2012. During the call, defendant identified
himself as Little Guy. He said that he had been in Avenal, and he was out on bail.
Defendant said he needed to talk to the man in person and not on the phone. The man
said that wasn’t going to happen because he had been put “in a turning point” program.
       Defendant said he needed to find out about “ ‘G’ Dog.” The man said he heard
about “the other case.” Defendant asked what he knew. The man said: “[S]omething he
f[**]ked up with Scooby,” but he could not get a straight story from anyone. Defendant
told him to check it out because “we need to clear this shit up while he is in there we are
going to clear this shit up.” The man said, “[W]e are going to clear up no matter what …
clearing it up has been in the works … you know what I am saying?”
       Defendant replied:

       “Yeah … because someone said that they didn’t even blame ‘G’ fool they
       blamed me … at first they said it was Little [G]uy who did it … but
       whatever because they seen me pass by … they seen my [car] pass[] by
       and Scooby was out there and I pulled up and [done’ em] whatever … this
       n[****]r said that they saw me do it … right?” (Italics added.)
       The man agreed. Defendant continued that it was “corn dog actually,” and he told
“Huero” that he had been at the fair when it happened. The man knew witnesses said


                                            18.
defendant had been at the fair. Defendant said he was there with his girlfriend, his little
nephew, and “Cisco.”

       “[Defendant]:       So … I am just saying though like they try to say it
       was me and they to switch it up and say that it was ‘G Money’ or some shit
       … you know what I am saying?

       “UM1:                Yeah.

       “[Defendant]:        (Unintelligible) Didn’t that fool f[**]k up anyway and
       they wanted to get them?

       “UM1:                Who did?

       “[Defendant]:        Scooby.

       “UM1:                I don’t really know about him like that.

       “[Defendant]:       Do you remember ‘G Money’ telling me telling me
       something like … Scooby f[**]ked up … that he was one of the reasons
       that something … something … I don’t remember dog … I remember ‘G
       Money’ telling me something that is why he was supposedly trying to
       change his name or some shit.

       “UM1;                I don’t really know dog … that is why I am trying to
       figure it out.

       “[Defendant]:     I don’t know fool… but it’s a bogus ass story or
       whatever you know… speculations or whatever people think this is bogus…

       “UM1:                Yeah.

       “[Defendant]:        We didn’t have anything to do with that shit….

       “UM1:                So, what is up with ‘G Money?’ What is he looking at
       right now?

       “[Defendant]:         I guess they offered him like fifteen … like fifteen and
       two strikes.” (Italics added.)




                                             19.
                                        DISCUSSION
I.     Aiding and Abetting Instructions
       The prosecutor proceeded on two theories of first degree murder: first degree
willful, deliberate, and premeditated murder; and murder perpetuated by means of
discharging a firearm from a motor vehicle at a person outside the vehicle with the
specific intent to kill. The prosecutor acknowledged it was not clear whether defendant
was the gunman and/or the driver, but argued defendant was in the car when Ortiz was
killed, and he was guilty of first degree murder based on wiretap conversations, his
location based on the cell phone tower signals, and the DNA evidence on the murder
weapon which excluded Chavez and Rizo but did not exclude defendant. (§ 189)
       On appeal, defendant challenges the aiding and abetting instructions for first
degree murder. He argues that these instructions, particularly CALCRIM No. 401, were
“at best, ambiguous” on the specific intent required to find him guilty for aiding and
abetting first degree premeditated murder. Defendant asserts the instructions allowed the
jury to convict him of first degree murder, as either the gunman or an aider and abettor,
without proof that he personally premeditated and deliberated, or that he personally
intended that a shooting from the car would kill the victim. Defendant further argues the
prosecutor exacerbated the purported instructional error in closing argument when he
asserted that if defendant was “an aider and abettor of the firing of that gun,” he was
“equally liable” and “equally culpable” of first degree premeditated murder.
       A. Failure to Object
       Defendant concedes that he never objected to CALCRIM No. 401 or argued any
of the instructions failed to clarify the requisite intent for an aider and abettor to be guilty
of first degree premeditated murder. Defendant asserts this court may still review his
arguments because the alleged instructional error affected his substantial rights.
       “Generally, a party may not complain on appeal about a given instruction that was
correct in law and responsive to the evidence unless the party made an appropriate

                                              20.
objection. [Citation.] But we may review any instruction which affects the defendant’s
‘substantial rights’ with or without a trial objection. [Citation.] ‘Ascertaining whether
claimed instructional error affected the substantial rights of the defendant necessarily
requires an examination of the merits of the claim  at least to the extent of ascertaining
whether the asserted error would result in prejudice if error it was.’ [Citation.]” (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
       We thus turn to defendant’s claim of instructional error. “We determine whether a
jury instruction correctly states the law under the independent or de novo standard of
review. [Citation.] Review of the adequacy of instructions is based on 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, we 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.’ ” (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
       B. Aiding and Abetting First Degree Murder
       “[A]n aider and abettor [must] act with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense. [Citation.]” (People v. Beeman (1984) 35 Cal.3d
547, 560 (Beeman), italics in original.) “When the definition of the offense includes the
intent to do some act or achieve some consequence beyond the actus reus of the crime
[citation], the aider and abettor must share the specific intent of the perpetrator. By
‘share’ we mean neither that the aider and abettor must be prepared to commit the offense
by his or her own act should the perpetrator fail to do so, nor that the aider and abettor
must seek to share the fruits of the crime. [Citation.] Rather, an aider and abettor will
‘share’ the perpetrator’s specific intent when he or she knows the full extent of the

                                             21.
perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose
of facilitating the perpetrator’s commission of the crime. [Citations.]” (Ibid.)
       “[A]n appropriate instruction should inform the jury that a person aids and abets
the commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages
or instigates, the commission of the crime.” (Beeman, supra, 35 Cal.3d at p. 561.)
       “[A]n aider and abettor’s mental state must be at least that required of the direct
perpetrator…. ‘When the offense charged is a specific intent crime, the accomplice must
“share the specific intent of the perpetrator”; this occurs when the accomplice “knows the
full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the
intent or purpose of facilitating the perpetrator’s commission of the crime.” [Citation.]’
[Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, italics added, fn. omitted.)
       “Aiders and abettors may … be convicted of first degree premeditated murder
based on direct aiding and abetting principles. [Citation.] Under those principles, the
prosecution must show that the defendant aided or encouraged the commission of the
murder with knowledge of the unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its commission. [Citation.] Because
the mental state component  consisting of intent and knowledge  extends to the entire
crime, it preserves the distinction between assisting the predicate crime of second degree
murder and assisting the greater offense of first degree premeditated murder. [Citations.]
An aider and abettor who knowingly and intentionally assists a confederate to kill
someone could be found to have acted willfully, deliberately, and with premeditation,
having formed his own culpable intent. Such an aider and abettor, then, acts with the
mens rea required for first degree murder.” (People v. Chiu (2014) 59 Cal.4th 155,
166167.)



                                            22.
      C. The Instructions
             1. CALCRIM Nos. 400, 401
      The court gave the following instructions on defendant’s culpability for murder.
CALCRIM No. 400 stated:

             “A person may be guilty of a crime in two ways. One, he or she
      may have directly committed the crime, and I will call that person the
      perpetrator. Two, he or she may have aided and abetted a perpetrator who
      directly committed the crime. A person is guilty of a crime whether he or
      she committed it personally or aided and abetted the perpetrator.”
      CALCRIM No. 401 defined aiding and abetting, and stated in relevant part:

              “To prove that the defendant is guilty of a crime on aiding and
      abetting that crime, the People must prove that, one, the perpetrator
      committed the crime. Two, the defendant knew that the perpetrator
      intended to commit the crime. Three, before or during the commission of
      the crime, the defendant intended to aid and abet the perpetrator in
      committing the crime. And, four, the defendant’s words or conduct did, in
      fact, aid and abet the perpetrator’s commission of the crime.

             “If someone aids and abets a crime, if he or she knows of the
      perpetrator’s unlawful purpose, and he or she specifically intends and
      does, in fact, aid, facilitate, promote and encourage or instigate the
      perpetrator’s commission of that crime. If all of these requirements are
      proved, the defendant does not need to actually have been present when the
      crime was committed to be guilty as an aider and abettor.” (Italics added.)
             2. Malice and Intent
      The court gave CALCRIM No. 252, that first degree murder required a specific
intent and/or mental state. The court instructed that first and second degree murder
required malice aforethought, and defined express and implied malice. (CALCRIM
No. 520)
             3. CALCRIM No. 521
      The jury also received CALCRIM No. 521, that defendant was being prosecuted
for first degree murder under two theories:




                                              23.
       “One, the murder was willful, deliberate and premeditated. And, two, the murder
was committed by shooting a firearm from a vehicle. Each theory of first degree murder
has different requirements, and I will instruct you on both. You may not find the
defendant guilty of first degree murder unless all of you agree that the People have
proved the defendant committed murder, but all of you … do not need to agree on the
same theory.”

              “The defendant [is] guilty of first degree murder if the People have
       proved that he acted willfully, deliberately, and with premeditation. The
       defendant acted willfully if he intended to kill. The defendant acted
       deliberately if he carefully weighed the considerations for and against his
       choice and knowing the consequences decided to kill. [¶] The defendant
       acted with premeditation if he decided to kill before completing the act that
       caused death....”
       As to the second theory of first degree murder, the jury was instructed:

       “The defendant is guilty of first degree murder if the People have proved
       that the defendant murdered by shooting a firearm from a motor vehicle.
       The defendant committed this kind of murder if, one, he shot a firearm
       from a motor vehicle. Two, he intentionally shot at a person who was
       outside the vehicle. And, three, he intended to kill that person.”
       CALJIC No. 521 also stated that the People had the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather than a lesser crime.
Finally, the court instructed the jury about the first degree murder instructions:

           “Now, if you find the defendant guilty of first degree murder, in effect,
       that would have to have been in conjunction with your finding on page 2 …
       or the 189 allegations that indicate that you would either [have] found that
       it was willful, premeditated, deliberate or that it was  discharge of a
       firearm from a motor vehicle, so you would have to have found essentially
       that to be true before you could actually return a verdict of first degree as in
       the instructions that I gave you.”
       D. The Verdicts
       The jury found defendant guilty of first degree murder and found true the section
189 special allegation, that the crime “was done by one of the following means: A)


                                             24.
willful, deliberate, and premeditated killing; H) discharge of a firearm from a motor
vehicle, intentionally at another person outside the vehicle, with the intent to inflict death;
within the meaning of Penal Code section 189, as alleged in the first count of the
Information.”
       As to the firearm enhancement, the jury found defendant was a principal in the
offense, and, in the commission of the offense, at least one principal intentionally and
personally discharged and personally used a firearm, and proximately caused death or
great bodily injury, to a person other than an accomplice (§ 12022.53, subds. (d), (e)(1)).
The gang enhancement was also found true.
       E. Analysis
       Defendant argues that based on the jury’s verdicts, particularly the finding on the
firearm enhancement, he was convicted as an aider and abettor rather than the direct
perpetrator of the murder. Defendant asserts that despite the extensive instructions on
first degree murder and aiding and abetting, the specific intent definitions in CALCRIM
No. 401 were not “lean and unequivocal” and the jury did not understand that it had to
find defendant had the specific intent to aid and abet a premeditated murder.
       Defendant’s instructional arguments are meritless. “[A]n aider and abettor of a
specific intent crime shares the perpetrator’s specific intent when he or she knows of the
perpetrator’s criminal purpose and aids, promotes, encourages, or instigates the
perpetrator with the intent of encouraging or facilitating the commission of the crime.
[Citations.]” (People v. Houston (2012) 54 Cal.4th 1186, 1224.) Beeman’s definition of
aiding and abetting, and what it means to share the perpetrator’s specific intent, has
repeatedly been approved, and CALCRIM No. 401 adequately conveys those principles.
(People v. Houston, supra, 54 Cal.4th at p. 1224; People v. Prettyman (1996) 14 Cal.4th
248, 259; People v. Marshall (1997) 15 Cal.4th 1, 40.) “CALCRIM No. 401 clearly
provides that knowledge that the perpetrator intends to commit the crime is only one of
the four elements for aiding and abetting liability. If the jury found mere knowledge

                                             25.
alone, by the terms of CALCRIM No. 401, that would be insufficient to establish aiding
and abetting liability. This point is even emphasized by the portion of the instruction that
reads as follows: ‘Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.’
(CALCRIM No. 401.)” (People v. Stallworth (2008) 164 Cal.App.4th 1079, 11031104,
italics in original.)
       Defendant relies on People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza) and
People v. Lee (2003) 31 Cal.4th 613 (Lee) in support of his claim that the aiding and
abetting instructions were deficient. These cases do not support his argument. Mendoza
focused on an unrelated issue: whether “section 22 permits defendants tried as aiders and
abettors to present, and the jury to consider, evidence of intoxication on the question
whether they had the requisite mental states of knowledge and intent.” (Mendoza, supra,
18 Cal.4th at p. 1126.) Mendoza held “the intent requirement for aiding and abetting
liability is a ‘required specific intent’ for which evidence of voluntary intoxication is
admissible under section 22.” (Id. at p. 1131.)
       Lee also fails to support defendant’s instructional arguments. Lee approved the
formulation of the intent necessary to establish aiding and abetting, as stated in Beeman
and incorporated in CALCRIM No. 401. (Lee, supra, 31 Cal.4th at p. 624.) “When the
crime at issue requires a specific intent, in order to be guilty as an aider and abettor the
person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the person
must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must]
give[] aid or encouragement with the intent or purpose of facilitating the [direct]
perpetrator’s commission of the crime.’ (People v. Beeman, supra, 35 Cal.3d at p. 560.)”
(Ibid., fn. omitted.)




                                              26.
       Defendant further contends the prosecutor’s closing argument purportedly
confused the aiding and abetting instructions, based on the following italicized
statements.

       “[T]here’s two ways you can be guilty of murder. You can be the person
       who fired the gun. You can be the direct perpetrator of the murder. You
       can also be an aider and abettor. Both of those individuals are principals in
       a murder. So whether or not [defendant] fired that gun or whether or not
       you find him to be an aider and abettor of the firing of that gun, he is
       equally liable, and he is equally culpable, and some of that distinction does
       not come out within the jury instructions, but he is liable either way.”
       (Italics added.)
       The prosecutor’s use of the phrase “equally guilty” is similar to instructional
language in a previous version of CALCRIM No. 400, which some courts found was
misleading. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 11641166; People v.
Nero (2010) 181 Cal.App.4th 504, 518519.) However, the jury in this case received the
modified version of CALCRIM No. 400 which did not include the “equally guilty”
phrase. Moreover, the prosecutor’s use of those phrases in closing argument was not
prejudicial. In cases where the jury received the “equally guilty” phrase in previous
versions of CALCRIM No. 400, the instruction was still found to correctly state the
requisite intent for the culpability of an aider and abettor for premeditated murder under
certain circumstances:

       “CALCRIM No. 401 … stated that to prove guilt as an aider and abettor the
       prosecution was required to prove ‘1. The perpetrator committed the crime;
       2. The defendant knew that the perpetrator intended to commit the crime; 3.
       Before or during the commission of the crime, the defendant intended to aid
       and abet the perpetrator in committing the crime; AND 4. The defendant’s
       words or conduct did in fact aid and abet the perpetrator’s commission of
       the crime.’ [¶] It would be virtually impossible for a person to know of
       another’s intent to murder and decide to aid in accomplishing the crime
       without at least a brief period of deliberation and premeditation, which is
       all that is required. [Citation.]” (People v. Samaniego, supra, 172
       Cal.App.4th at p. 1166, italics added.)



                                            27.
       In this case, the jury received CALCRIM Nos. 401 and 521, regarding the
necessity of finding defendant acted willfully, deliberately and with premeditation if he
intended to kill. By finding defendant guilty of first degree murder, the jury necessarily
found that he had acted willfully and with the intent to kill. Thus, although it was
unknown whether he was an actual perpetrator or an aider and abettor, the prosecutor’s
use of those phrases was not prejudicial because the entirety of the court’s instructions
did not relieve the jury, under the court’s other instructions, of finding defendant had the
intent to kill at the time of the murder of Ortiz.
II.    Instructions on the Gang Allegations
       The court instructed the jury with CALCRIM No. 1401 for the elements of the
gang enhancement:

       “To prove this allegation, the People must prove that, one, the defendant
       committed the crime for the benefit of or in association with a criminal
       street gang. And, two, the defendant intended to assist[,] further or
       promote criminal conduct by gang members.” (Italics added.)
       Defendant asserts the court had a sua sponte duty to define the phrase “in
association with a criminal street gang,” as used in CALCRIM No. 1401, because the
phrase is a technical legal term. He argues the alleged instructional error was prejudicial
because the prosecution relied on the “in association with” aspect of the gang
enhancement, and argued the enhancement was true because defendant, a member of the
Colonia Bakers, in association with Chavez and Rizo, also members of the Colonia
Bakers, killed Ortiz, a member of the same gang.
       “ ‘The trial court must instruct even without request on the general principles of
law relevant to and governing the case ... [including] instructions on all of the elements of
a charged offense.’ [Citation.] Once the court has instructed on the general principles of
law, a defendant must request additional instructions if he or she believes amplification or
explanation is necessary. [Citations.] [¶] ‘ “ ‘[T]he trial court’s duty to see that the
jurors are adequately informed on the law governing all the elements of the case ... is not

                                              28.
always satisfied by a mere reading of wholly correct, requested instructions.” ’
[Citation.] ‘ “[T]he trial court has a sua sponte duty to give explanatory instructions even
in the absence of a request when the terms in an instruction ‘have a “technical meaning
peculiar to the law.” ’ [Citations.] No such duty is imposed when the terms ‘are
commonly understood by those familiar with the English language ....’ ” ’ [Citations.]”
(People v. Morehead (2011) 191 Cal.App.4th 765, 772773.)
       In support of his instructional claim, defendant relies on People v. Albillar (2010)
51 Cal.4th 47 (Albillar), and argues the phrase “in association with” has a technical legal
meaning and the trial court had a sua sponte duty to define the phrase. In Albillar, three
fellow gang members were convicted of forcible rape and forcible sexual penetration of
the victim while acting in concert, and the gang enhancement was found true. The court
rejected the defendants’ contention that there was insufficient evidence that the sexual
offenses were committed in association with the defendants’ gang. (Id. at pp. 6061.)

       “Defendants not only actively assisted each other in committing these
       crimes, but their common gang membership ensured that they could rely on
       each other’s cooperation in committing these crimes and that they would
       benefit from committing them together. They relied on the gang’s internal
       code to ensure that none of them would cooperate with the police, and on
       the gang’s reputation to ensure that the victim did not contact the police.
       We therefore find substantial evidence that defendants came together as
       gang members to attack [the victim] and, thus, that they committed these
       crimes in association with the gang. [Citations.]” (Id. at pp. 6162, italics
       in original.)
       In a separate opinion in Albillar, Justice Werdegar dissented as to the majority
opinion’s conclusion that the gang enhancement in that case was supported by substantial
evidence as to the “benefit” and “association” elements, particularly the majority
opinion’s primary reliance on the expert’s opinion to provide that substantial evidence.
(Albillar, supra, 51 Cal.4th at pp. 68, 7073 (conc. & dis. opn. by Werdegar, J.).) Justice
Werdegar also took exception to the majority opinion’s definition of “in association
with,” and declared it rendered the language of section 186.22, subdivision (b) redundant.


                                            29.
(Allibar, supra, at pp. 7374.) Justice Werdegar concluded the jury’s findings on the
gang enhancements should be reversed because it “necessarily relied on the construction
of the phrase provided by the prosecutor, a construction neither consistent with the statute
nor endorsed by the majority.” (Id. at p. 74.)
       Albillar did not provide a new definition for the phrase “in association with any
criminal street gang,” or hold that the phrase has a technical meaning requiring sua
sponte instruction in future cases. Instead, Albillar simply discussed the sufficiency of
the evidence in establishing the elements of the criminal street gang enhancement.
Defendant’s allegation of instructional error appears to be based on Justice Werdegar’s
concurring and dissenting opinion in Albillar. Even if that separate opinion was
controlling authority, however, Justice Werdegar did not advocate a specific definition
for “in association with,” but criticized the majority opinion for relying on the expert’s
opinion to provide substantial evidence in light of the prosecutor’s purported erroneous
definition of the phrase. Moreover, Justice Werdegar cited to a common definition of
“associate,” namely the definition from the “Merriam–Webster’s Eleventh Collegiate
Dictionary (2004) at page 75” which defined “ ‘associate,’ as ‘... 1: to come or be
together as partners, friends, or companions 2: to combine or join with other parts.’ ”
(Albillar, supra, 51 Cal.4th at p. 70, fn. 2 (conc. & dis. opn. of Werdegar, J.).)
       “When a word or phrase ‘ “is commonly understood by those familiar with the
English language and is not used in a technical sense peculiar to the law, the court is not
required to give an instruction as to its meaning in the absence of a request.” ’
[Citations.] A word or phrase having a technical, legal meaning requiring clarification by
the court is one that has a definition that differs from its nonlegal meaning. [Citations.]”
(People v. Estrada (1995) 11 Cal.4th 568, 574, italics in original.) Albillar did not create
any sua sponte duty for the trial court to define “in association with” in CALCRIM No.
1401. Here, absent defense counsel’s request for further instruction on the phrase, the
trial court’s failure to define “in association with” did not amount to instructional error.

                                             30.
III.   Evidence of the Gang Allegation
       Defendant challenges the sufficiency of the evidence to support the gang
enhancement pursuant to section 186.22, subdivision (b)(1); and derivative firearm
allegation pursuant to section 12022.53, subdivisions (d) and (e). Defendant argues there
was no evidence that defendant committed the murder of Ortiz “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.” (§ 186.22,
subd. (b)(1).)
       Defendant asserts the prosecutor improperly relied on the “in association with”
clause to argue the gang enhancements were true, and misled the jury because that phrase
“must mean something separate and distinct from ‘in association with’ gang members.”
Defendant contends there was no evidence that the Colonia Bakers gang itself was
involved in the homicide, particularly since the court excluded evidence which might
have established a motive for three gang members to murder a member of the same gang.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence  that is, 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. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)



                                             31.
       A. Substantial Evidence
       “The enhancement set forth in section 186.22(b)(1) does not pose a risk of
conviction for mere nominal or passive involvement with a gang. Indeed, it does not
depend on membership in a gang at all. Rather, it applies when a defendant has
personally committed a gang-related felony with the specific intent to aid members of
that gang.” (Albillar, supra, 51 Cal.4th at pp. 6768.)
       The gang enhancement contains two distinct “prongs.” (Albillar, supra, 51
Cal.4th at pp. 51, 59.) The first prong requires proof the defendant committed a “gang-
related crime,” i.e., that it was for the benefit of, at the direction of, or in association with
a gang. (Id. at pp. 59, 67.) A crime is committed in association with a gang if the
“defendants relied on their common gang membership and the apparatus of the gang in
committing” the charged felonies. (Id. at p. 60.) A gang member’s commission of a
crime in concert with other known gang members can be substantial evidence that the
crime was committed in “association” with a gang. (People v. Morales (2003) 112
Cal.App.4th 1176, 1198.) The jury may reasonably infer the association element of the
first prong from the very fact the defendant committed the charged crime with another
gang member, unless there is evidence that the gang members are “on a frolic and detour
unrelated to the gang.” (Ibid.; Albillar, supra, 51 Cal.4th at pp. 6162, 6768.) Where
the evidence is sufficient to establish the crime was committed “in association” with a
gang, the prosecution need not prove that it was committed for the benefit of or at the
direction of a gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
       The second “scienter” prong requires “ ‘the specific intent to promote, further, or
assist in any criminal conduct by gang members,’ ” and “is unambiguous and applies to
any criminal conduct, without a further requirement that the conduct be ‘apart from’ the
criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar,
supra, 51 Cal.4th at p. 66, italics in original.) “There is no further requirement that the
defendant act with the specific intent to promote, further, or assist a gang; the statute

                                               32.
requires only the specific intent to promote, further, or assist criminal conduct by gang
members. [Citations.]” (Id. at p. 67, italics in original.)
       “[I]f substantial evidence establishes that the 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, further, or assist criminal conduct by
those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
       “There is rarely direct evidence that a crime was committed for the benefit of a
gang. For this reason, ‘we routinely draw inferences about intent from the predictable
results of action. We cannot look into people’s minds directly to see their purposes. We
can discover mental state only from how people act and what they say.’ [Citation.]
‘Commission of a crime in concert with known gang members is substantial evidence
which supports the inference that the defendant acted with the specific intent to promote,
further or assist gang members in the commission of the crime.’ [Citations.]” (People v.
Miranda (2011) 192 Cal.App.4th 398, 411412.)
       Thus, the joint commission of an offense is sufficient to infer that the gang
members are acting together as gang members in the absence of evidence to the contrary.
(People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Proof of such association is
sufficient to support the gang enhancement even in the absence of proof of tangible or
reputational benefit to a gang. (Ibid.)
       Albillar held that three gang members, who raped and sexually assaulted a 16-
year-old girl, committed the crime “in association” with a gang because, as fellow gang
members, they were able to rely upon each other to help facilitate the sexual assaults,
they could expect their fellow gang members not to talk to the police, and they relied
upon their membership in the gang to intimidate the victim. (Albillar, supra, 51 Cal.4th
at pp. 6162.)
       In reaching this conclusion, Albillar acknowledged that “[n]ot every crime
committed by gang members is related to a gang.” (Albillar, supra, 51 Cal.4th at p. 60.)

                                             33.
However, Albillar concluded there was substantial evidence to support the gang
enhancement for the defendants’ commission of multiple sexual assaults against the
victim because the crimes were committed “in association with” a gang, and “[t]he record
supported a finding that defendants relied on their common gang membership and the
apparatus of the gang in committing the sex offenses against [the victim].” (Id. at p. 60.)

       “Because each defendant was a member of the Southside Chiques, he could
       and did rely on the others’ cooperation in committing the offenses against
       [the victim]…. Defendants knew, because of the nature of the gang, that no
       one would be a ‘rat’…. Defendants also knew that fear of the gang would
       prevent [the victim] from reporting the incident to the police…. [¶] In
       short, defendants’ conduct exceeded that which was necessary to establish
       that the offenses were committed in concert. Defendants not only actively
       assisted each other in committing these crimes, but their common gang
       membership ensured that they could rely on each other’s cooperation in
       committing these crimes and that they would benefit from committing them
       together. They relied on the gang’s internal code to ensure that none of
       them would cooperate with the police, and on the gang’s reputation to
       ensure that the victim did not contact the police. We therefore find
       substantial evidence that defendants came together as gang members to
       attack [the victim] and, thus, that they committed these crimes in
       association with the gang. [Citations.]” (Albillar, supra, 51 Cal.4th at
       pp. 6162.)
       Albillar also noted the defendants were related to each other and lived together,
and that “ ‘it is conceivable that several gang members could commit a crime together,
yet be on a frolic and detour unrelated to the gang.’ [Citations.]” (Albillar, supra, 51
Cal.4th at p. 62.) “One may observe, however, ‘that gang members frequently come
from families in which relatives were also gang members.’ [Citation.] Therefore, to
presume, as defendants urge, that family ties necessarily predominate over gang
affiliation when gang members who are related commit crimes together would
substantially eviscerate the gang enhancement.” (Id. at p. 62.) However, the record
refuted the defendants’ argument because of the extensive connections each defendant
had with the gang. (Id. at pp. 6263.)



                                            34.
       B. Analysis
       There is substantial evidence to support the “in association with” clause of the
gang enhancement. The parties stipulated that the Colonia Bakers was a criminal street
gang; defendant, Chavez, Rizo, and Ortiz (the victim) were active participants in the
Colonia Bakers; and defendant knew that members of the gang engaged in or had
engaged in a pattern of criminal gang activity.6 The prosecution’s gang expert testified
that members of the Colonia Bakers commit crimes together, and doing so often helped
the members accomplish the crimes in a “better way.” “They … feed off each other and
pump each other up to commit the crime.” The expert further testified the support of
other gang members will bolster an individual member’s confidence to commit the crime.
       As noted above, “ ‘[c]ommission of a crime in concert with known gang members
is substantial evidence which supports the inference that the defendant acted with the
specific intent to promote, further or assist gang members in the commission of the
crime.’ [Citations.]” (People v. Miranda, supra, 192 Cal.App.4th at p. 412.) The
wiretap evidence demonstrated that defendant committed the murder in association with
his fellow gang members, Chavez and Rizo. They repeatedly contacted each other in the
minutes before and after the 911 call which reported the murder. Once defendant and
Chavez learned that they were suspected in the murder, there were additional cell phone
calls as Chavez instructed defendant, either directly or through their mother, to keep quiet
and get out of Bakersfield. Defendant acknowledged the seriousness of his predicament
to his mother as a result of using his gun, and gave emphatic instructions to Rizo to get
rid of the “burner,” thus demonstrating that Rizo obtained possession of the murder




       6The parties’ stipulations eliminated any dispute as to whether the Colonia Bakers
was a criminal street gang as defined by the California Street Terrorism Enforcement and
Prevention Act (the STEP Act). (§ 186.20 et. seq.; cf. People v. Prunty (2015) 62 Cal.4th
59, 6768.)

                                            35.
weapon shortly after the homicide. The murder weapon was found in Rizo’s house, and
the DNA tests excluded Chavez and Rizo but did not exclude defendant.
       Defendant asserts there is no evidence that the murder of a fellow gang member
was committed on behalf of the gang, and makes much of the court’s pretrial evidentiary
rulings which excluded certain evidence. As defendant explains, the prosecution planned
to introduce evidence about statements made by Rizo and Vincent “Turkey” Pugeda,
another member of the Colonia Bakers. According to the prosecution’s pretrial offer of
proof, Pugeda said Ortiz told him that he broke into Chavez’s house, and Chavez told
Rizo that he killed Ortiz because of a drug-related burglary and to “save face within the
gang.” Pugeda subsequently asserted his Fifth Amendment privilege and refused to
testify, and the court excluded hearsay statements made by Pugeda and Rizo on the topic.
Defendant thus concludes that in the absence of Pugeda’s statements, there was no
evidence that the murder of a fellow gang member was gang-related.
       The issue of whether defendant committed the murder of Ortiz “in association
with” the Colonia Bakers was a disputed factual question for the jury to determine.
However, where the evidence is sufficient to establish the crime was committed “in
association” with a gang, the prosecution need not prove that it was committed for the
benefit of or at the direction of a gang. (People v. Morales, supra, 112 Cal.App.4th at
p. 1198.) As in Abillar, the record supported a finding that defendant relied on his
common gang membership with Chavez and Rizo, and the apparatus of the gang, in
committing the murder in this case. (Abillar, supra, 59 Cal.4th at p. 60.)
       In addition, there was evidence which raised a possible motive for the three gang
members to kill a member of their own gang. Defendant introduced the tape-recorded
cell phone conversation between defendant and an “unknown male,” which occurred on
October 25, 2012. Defendant argued the conversation showed that he disavowed any
involvement in the murder of Ortiz. The entirety of that conversation raised additional
inferences. The “unknown male” clearly knew defendant, Chavez, and Ortiz, and that

                                            36.
their monikers were, respectively, “Little Man,” “G Money,” and “Scooby.” The man
also knew that defendant and Chavez were suspected in Ortiz’s murder, and that
defendant claimed he was at the fair at the time of the murder. As the conversation
continued, defendant talked about “Scooby” and said: “Didn’t that fool f[**]k up anyway
and they wanted to get them?” The man said he did not know. Defendant asked the man
if he remembered that Chavez said “something like … Scooby f[**]ked up … that he was
one of the reasons that something … something … I don’t remember dog … I remember
‘G Money’ telling me something that is why he was supposedly trying to change his name
or some shit.” (Italics added.) The man again said he did not know. At that point,
defendant finally said, “We didn’t have anything to do with that shit.” Nevertheless,
defendant brought up the possible motive of a conflict between Chavez and Ortiz that
was so serious that “they wanted to get him,” and Ortiz was going to “change his name.”
       We conclude there is substantial evidence of the joint commission of an offense
“in association with” other known gang members, which supplies an inference of specific
intent to promote or assist other gang members. (Albillar, supra, 51 Cal.4th at p. 68;
People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
IV.    Motion to Compel Disclosure
       As explained above, the investigation into Ortiz’s murder was significantly aided
when the court issued search warrants for wiretaps on cell phones associated with
defendant and Chavez. The search warrant motions were supported by sealed
confidential affidavits filed pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).
       Prior to trial, defendant moved for disclosure of the sealed Hobbs attachments and
disclosure of the confidential information. Defendant also moved to traverse the wiretap
warrants based on the disclosure of the information in the sealed affidavits. The court
conducted an in camera hearing and denied defendant’s motions.
       Defendant requests this court to review the confidential sealed information and
transcript of the in camera hearing, and determine whether the superior court properly

                                            37.
denied his motion for disclosure of the confidential information, and his motion to
traverse the search warrants for the wiretaps.
       A. Hobbs
       All or part of a search warrant affidavit may be sealed if necessary to protect the
identity of an informant who has supplied probable cause for the issuance of the warrant.
(Hobbs, supra, 7 Cal.4th at p. 971.) In such cases, where the defendant moves to traverse
or quash the warrant, the trial court is required to conduct an in camera hearing. (Id. at
p. 972.) The court must determine at the in camera hearing whether there are sufficient
grounds for maintaining the confidentiality of the informant’s identity, and whether the
extent of the sealing is necessary to protect the informant’s identity. (Ibid.) Absent a
waiver from the prosecutor, the defendant and his attorney may not attend the in camera
hearing. (Id. at p. 973.)
       If the trial court determines all or part of the affidavit was properly sealed, it must
next determine if there is any merit to the defendant’s motion to traverse. (Hobbs, supra,
7 Cal.4th at p. 974.) The court must determine whether the affidavit included a false
statement made knowingly and intentionally or with reckless disregard of the truth, and
whether the false statement is necessary to a finding of probable cause. (Ibid.) The
determination must be based on the public and sealed portions of the affidavit and any
testimony offered at the in camera hearing. (Ibid.) If there is no merit to the motion to
traverse, the court should so inform the defendant and deny the motion. (Ibid.)
       If the court determines there is a reasonable probability the defendant will prevail
on the motion, the prosecutor must be given the option of disclosing the sealed materials,
or suffering the entry of an adverse order on the motion to traverse. (Hobbs, supra, 7
Cal.4th at pp. 974975.)
       If the defendant moves to quash the warrant, the procedure is similar. The trial
court must determine whether, under the totality of the circumstances, the affidavit and
related materials furnished probable cause for the issuance of the warrant. (Hobbs, supra,

                                             38.
7 Cal.4th at p. 975.) If the court determines there is probable cause, the court should so
inform the defendant and deny the motion. (Ibid.) If the court determines there is a
reasonable probability the defendant will prevail on his motion to quash the warrant, the
prosecutor must either disclose the sealed materials to the defense, or suffer the entry of
an adverse order on the motion to quash. (Ibid.; see also People v. Martinez (2005) 132
Cal.App.4th 233, 240242.)
       B. Analysis
       Based on our independent review of the record, including the sealed and
confidential portions of the search warrant applications and affidavits, and the transcript
of the court’s in camera hearing, we find the there was probable cause to issue the
warrants in this case and defendant’s motions were properly denied. Consequently, there
is no Hobbs error to correct on appeal, and the Hobbs affidavits and all other documents
which were already sealed and confidential shall remain so.
                                      DISPOSITION
       The judgment is affirmed.


                                                                 _____________________
                                                                 POOCHIGIAN, J.
WE CONCUR:


______________________
KANE, Acting P.J.


______________________
FRANSON, J.




                                             39.
