Filed 10/2/13 P. v. Murphy CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                              B241593

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA356622)
         v.

MATTHEW MURPHY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig J. Mitchell, Judge. Affirmed.
         Emry J. Allen, 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, Assistant Attorney General, Victoria B. Wilson and Timothy
M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Appellant Matthew Murphy appeals from the judgment entered following his
convictions by jury on count 1 – first degree felony murder (Pen. Code, § 187) with a
robbery special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)(A)) and count 2
– second degree robbery (Pen. Code, § 211) with a finding as to each offense that he
personally and intentionally discharged a firearm causing great bodily injury and death
(Pen. Code, § 12022.53, subd. (d)) and committed the offense for the benefit of a criminal
street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to prison
for a total unstayed term of life without the possibility of parole, plus 25 years to life. We
affirm the judgment.
                                  FACTUAL SUMMARY
       1. People’s Evidence.
       Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established that about 11:45 a.m. on April 27, 2009,
Joseph Walker was a security guard at a school near 53rd and Vermont. He was a retired
Los Angeles police officer. He had been a police officer for 31 years. Walker saw Pablo
Tzoc, the decedent, trying to enter a school building. Walker told Tzoc that Tzoc could
not enter. Tzoc began walking away.
       As Tzoc was walking away, appellant and another man ran towards Tzoc. Tzoc
tripped and fell. Appellant produced a gun and fired about five shots into Tzoc.
Appellant laughed and the second man was “yelling [appellant] on.” Appellant bent
down toward Tzoc’s body and Walker lost sight of appellant’s hand. Appellant then
stood and fled. Walker identified appellant at trial as the shooter.
       Gloria Yac testified that about 11:45 a.m. on April 27, 2009, she was in her
residence at 53rd and Vermont. She heard shots, looked out her window, and saw two
men standing next to each other and one robbing the other. The robber was holding the
victim and going through the latter’s pockets. Yac told police the robber was standing
above or over the victim as the robber was taking items from the victim’s pockets. Yac
testified she was somewhat confused at trial. The robber fled, chased by a third man.

                                              2
       Damien Morris, who was born in August 1993, testified as follows.1 About
11:45 a.m. on April 27, 2009, Morris and appellant were near 53rd and Vermont.
Appellant told Morris that appellant was looking for Hispanics to rob. Appellant robbed
a Hispanic man and five or six shots were fired. Morris fled.
       On or about May 14, 2009, Morris talked with appellant, who was in jail. In a
conversation that was surreptitiously monitored, Morris told appellant that Morris had no
part in the murder. Morris also said, “All I did was just see you and you, you did what
you did. I never . . . had no part of looking out for you or nothing. Am I right?”
Appellant replied, “Yep.” Appellant told Morris that Morris had an alibi. Morris asked
what appellant did with the “burner” and appellant later replied “. . . I got that
motherfucker, but it’s put up” and “[n]obody could get to it.”
       Morris also testified as follows. Morris told appellant that Morris was at the
corner, all Morris saw was appellant walk away from Morris, Morris heard a gunshot,
and Morris fled. Appellant agreed that that was all Morris did, but appellant told Morris
not to tell anyone. Morris asked appellant why appellant shot “him” and appellant
replied appellant did not want to talk about it. Morris later asked appellant “. . . why you
shoot the [racial epithet] though? Cause he try what?” Appellant replied, “He tried to
grab some shit.”
       Police searched the crime scene and found a partially smoked cigar about 17 feet
from Tzoc. Forensic analysis revealed appellant’s DNA profile on the cigar. A medical
examiner determined Tzoc died as a result of four gunshot wounds to his back.
       Los Angeles Police Officer Steven Sieker, a gang expert assigned to the 77th
Division, testified as follows. Sieker was assigned to work the Five-Deuce Hoover Crips
gang (Crips). He was also assigned to other gangs, including the “51 Nothing But
Trouble” gang (Trouble) that was closely allied with the Crips. The area of 52nd and
Vermont was in Crips territory. The primary activities of the Crips included homicides,

1
       Morris’s trial testimony consisted of his preliminary hearing testimony admitted
into evidence. (See part 1 of the Discussion, infra.)

                                              3
attempted murders, and robberies. If a violent crime occurred at 52nd and Vermont,
there would be a very strong inference in the community that the crime was related to the
Crips. Appellant and Morris were Crips members.
       According to Sieker, a gang member committed crimes while accompanied by a
gang member or associate to enhance the reputation of the first gang member. Gang
members enjoyed a reputation for violence. The gang benefited from having a violent
reputation, since this instilled in citizens a fear of retaliation if they cooperated with
police regarding the crime. A violent crime committed in broad daylight would enhance
the gang’s reputation.
       The prosecutor posed a hypothetical question and Sieker assumed the following as
facts, i.e., at 11:45 a.m., a Crips member was on 52nd and Vermont in close proximity to
a Crips member or associate; the first Crips member approached and shot a transient male
in the back four times; and the first Crips member then took items from the victim’s
pocket and fled with the associate or other person. Sieker opined the crime would have
been committed for the benefit of the Crips. Sieker’s opinion was bolstered by the fact
the shooter, in the presence of the other gang member, unnecessarily shot the victim four
times in the back and laughed while looking at the associate.
       During cross-examination, Sieker testified it was his understanding appellant,
Morris, and another person were present during the commission of the crime. Morris told
Sieker that a Trouble member was present during the crime. The principal basis for
Sieker’s opinion the crime was committed for the benefit of a street gang was the fact it
was done in the daytime in front of other gang members, i.e., Crips and Trouble
members. Sieker had encountered instances in which a gang member would fabricate
that another person committed a gang-related crime and the gang member would
fabricate a moniker for the person. Sieker testified 99 percent of Crips members were
African-Americans.




                                               4
2. Defense Evidence.
       In defense, appellant testified as follows. Appellant associated with Crips
members and was unwillingly “jumped into” the gang. Appellant was Morris’s friend.
On April 27, 2009, Morris, appellant, and a person named Zig Zag were walking around,
and Morris and Zig Zag told appellant that Morris and Zig Zag were looking for people to
rob.
       As Morris, appellant, and Zig Zag were crossing the street at 53rd and Vermont,
Morris and Zig Zag saw a Hispanic man walking towards them. Zig Zag said, “ ‘Let’s
get him.’ ” Morris crossed the street and Zig Zag pulled out a gun. Appellant, afraid,
began running down 53rd and heard gunshots. Appellant also testified that when Zig Zag
pulled out the gun, appellant began running and Zig Zag started shooting. Appellant
testified he heard something go past his ear, turned around, and “that’s when I seen him
with the gun. He was looking down, . . .”
       Later that day appellant denied to a detective that appellant knew Morris.
Appellant did not want to be known as a snitch. According to appellant, a few days after
the killing, Zig Zag told appellant that Zig Zag put up the gun and burned the wallet. Zig
Zag told appellant not to talk to police anymore.
       At some point, Morris phoned appellant. Appellant believed Morris was with
other Crips members at the time. Appellant did not want to say the wrong thing.
Appellant told Morris a gun was “put up.” Appellant indicated to Morris that appellant
“[shot] the guy” because the guy “ ‘pulled some shit.’ ” Appellant told the above to
Morris only because appellant thought Crips members were listening to the conversation.
       A defense psychologist testified concerning various factors affecting the reliability
of alleged eyewitness identifications.
3. Rebuttal Evidence.
       In rebuttal, Los Angeles Police Department Detective Refugio Garza testified he
was assigned to this case and, on April 27, 2009, while searching for evidence, he found a



                                             5
wallet in an alley adjacent to 52nd between Vermont and Hoover.2 Los Angeles Police
Detective Colin Braudrick testified that during a search of appellant’s house, Braudrick
found lyrics written by appellant. The lyrics referred to the Crips, the Neighborhood
Crips gang, and the killing of rival gang members. A portion of the lyrics said, “ ‘Fuck
around with me and get yourself smoked.’ ” The word “smoked” was slang for shooting
somebody. Los Angeles County Sheriff’s Deputy Joseph Eiland, a gang investigator,
testified he was unable to locate any record of a Crips member with the moniker Zig Zag.
                                          ISSUES
       Appellant claims (1) the trial court violated his constitutional rights to
confrontation and due process by admitting into evidence at trial Morris’s preliminary
hearing testimony, (2) the trial court erroneously precluded appellant from arguing to the
jury his third party culpability defense, (3) the trial court erroneously rejected appellant’s
offered stipulations, (4) there was insufficient evidence supporting the true finding as to
the gang allegations, and (5) the trial court erroneously failed to instruct sua sponte
concerning the incidental robbery theory as it related to robbery-murder and the robbery
special circumstance.
                                       DISCUSSION
1. The Trial Court Properly Admitted Into Evidence Morris’s Preliminary Hearing
Testimony.
       a. Pertinent Facts.
       After the jury was sworn, but prior to the presentation of evidence, the prosecutor,
on October 12, 2011, suggested she might proffer at trial Morris’s preliminary hearing
testimony. The court scheduled an admissibility hearing for October 13, 2011. At the
October 13, 2011 hearing, Braudrick testified as follows. Braudrick was the investigating
officer. Witnesses were reluctant to come to court when the case was gang-related,
especially if the witnesses were fellow gang members. Morris was affiliated with the


2
     Appellant concedes the wallet belonged to Tzoc.

                                              6
Crips, and was appellant’s friend. After Braudrick spent two weeks looking for Morris,
Morris testified at appellant’s preliminary hearing.
       On September 27, 2011, at the prosecutor’s request, Braudrick began trying to
serve Morris with a subpoena for trial, but Braudrick had difficulty doing so. Morris’s
family members told Braudrick that Morris had not been home recently, Morris was
afraid, and he did not want to testify.
       On September 29, 2011, Braudrick spoke with Morris’s sister, with whom
Braudrick had a very good relationship. She called Morris, told him that Braudrick was
looking for him, and gave Morris’s phone number to Braudrick. Morris hung up the
phone. Braudrick called the number later but it was disconnected. On October 4, 2011,
Braudrick served Morris with a subpoena and told Morris he had to appear in court on
October 11, 2011. Morris told Braudrick that Morris did not want to testify.
       On October 11, 2011, the parties announced ready for trial, but Morris failed to
appear. The court issued and held a body attachment for Morris, and Braudrick tried to
contact him. About 2:45 p.m., Morris, calling from a blocked phone number, left a
voicemail for Braudrick. In the voicemail, Morris said he was sorry he had missed court
and he had wanted to be there. Morris also told Braudrick to leave a message with
Morris’s sister and Morris would appear in court on October 12, 2011. At 8:40 p.m.,
Braudrick called Morris’s sister at her home and left a voicemail indicating Morris
needed to be in court at 11:30 a.m. on October 12, 2011.
       On October 12, 2011, Morris failed to appear. Braudrick again tried to contact
him. The court released the body attachment for Morris. Braudrick attempted to go to
Morris’s known addresses. Braudrick also briefed a “gang unit” and sent it to locate
Morris. Braudrick further testified “South Bureau Gang” patrolled the area looking for
Morris, searched his house about 10:00 p.m., but was unable to locate him. These efforts
began about 8:00 p.m. and continued until midnight.




                                             7
       On October 13, 2011 (the day of the admissibility hearing), Braudrick made
additional efforts to locate Morris. At 3:00 a.m. on October 13, 2011, Braudrick had the
77th Division watch commander send a patrol unit and a supervisor to check the area, and
they searched Morris’s house. Morris was on probation, and one of his probation
conditions required that he remain at that house every night. Police went to the house
during the evening and later at night, but Morris was not there. Later during the morning
of October 13, 2011, Braudrick patrolled the area around Morris’s house and searched for
him. Braudrick saw four Crips members at 51st and Figueroa, asked if they had seen
Morris, and they replied no.
       Still later, at 9:45 a.m., Braudrick went to Morris’s house and contacted Morris’s
sister. She told Braudrick the reason Braudrick could not find Morris was Morris was
intentionally avoiding appearing in court. Morris’s sister did not know where Morris
was. Morris’s sister called Morris on the phone, Morris answered, and Morris’s sister
handed the phone to Braudrick. Morris hung up. Morris’s sister later tried to call Morris
several times but his phone was off and her calls went to his voicemail.
       During cross-examination, Braudrick testified as follows. Braudrick told Morris’s
family between eight to 12 times that Braudrick would provide witness protection for
Morris and relocate him. Morris was afraid of appellant. When Braudrick initially
served Morris with a subpoena, Morris said appellant had told Morris that appellant had
paperwork indicating Morris was a snitch.
       At the hearing, the court tentatively indicated Braudrick repeatedly had tried to
contact Morris through his sister, and “extraordinary efforts were conducted within the
last 24 hours when [Morris] failed to appear in court pursuant to the served subpoena.”
Appellant acknowledged it was difficult to serve a subpoena on someone like Morris.
However, appellant maintained that because it was the first day of trial testimony, the
trial court was required to delay introduction of Morris’s preliminary hearing testimony
pending further efforts by Braudrick to locate Morris.



                                             8
       The court found the People had established both Morris’s failure to comply with a
lawfully served subpoena and the People’s due diligence in securing Morris’s attendance
at trial. The court commented Morris had made obvious efforts to avoid being arrested
and brought to court to testify.
       b. Analysis.
       Appellant claims the trial court violated his constitutional rights to confrontation
and due process by admitting into evidence at trial Morris’s preliminary hearing
testimony. Appellant argues the People failed to exercise due diligence to locate Morris;
therefore, the People failed to demonstrate he was unavailable as a witness. Appellant
maintains this is so because there was no evidence that, in an effort to locate Morris, law
enforcement (1) contacted Morris’s family (other than his sister), (2) contacted the
probation department or Morris’s probation officer, or (3) provided to “other law
enforcement jurisdictions” information identifying Morris. We reject appellant’s claim.
       First, the burden is on appellant to demonstrate error; it will not be presumed.
(In re Kathy P. (1979) 25 Cal.3d 91, 102 (Kathy P.); People v. Garcia (1987)
195 Cal.App.3d 191, 198.) Appellant has not demonstrated the People failed to contact
Morris’s family (other than his sister) or the probation department, or that the People
failed to provide to “other law enforcement jurisdictions” information identifying Morris.
The fact the record does not demonstrate these efforts occurred does not constitute proof
they did not occur.
       Second, even if appellant had demonstrated the People’s alleged failures, we
would reject his claim. There is no dispute Morris’s preliminary hearing testimony was
admissible at trial if he was constitutionally unavailable for purposes of the Confrontation
Clause. In People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera), our Supreme
Court stated, “A witness who is absent from a trial is not ‘unavailable’ in the
constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial. (Id. at p. 622.) The lengths to which the People must go
to produce a witness is a question of reasonableness.” (Ibid.)

                                              9
         The proponent of the evidence has the burden of showing the witness is
unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) “We review the trial court’s
resolution of disputed factual issues under the deferential substantial evidence standard
[citation], and independently review whether the facts demonstrate prosecutorial good
faith and due diligence [citation].” (Herrera, supra, 49 Cal.4th at p. 623.)
         There is no dispute the People exercised due diligence in locating Morris up to and
including the point Morris, on October 11, 2011, failed to appear at trial despite the fact
Braudrick had served a subpoena on him. Appellant’s argument pertains only to the issue
of the People’s due diligence after Morris failed to appear on that date.
         We have recited the pertinent facts. The record reflects on and after October 11,
2011, Morris, fearing retaliation if he testified, successfully avoided police who were
searching for him by a variety of means. He failed to comply with court orders, i.e., the
trial subpoena, as well as his probation condition. His defiance of his probation condition
contributed to the People’s inability to secure his attendance. Appellant’s argument in
the trial court pointed to no deficiency in the People’s showing of due diligence other
than the alleged deficiency that the People could have made additional efforts to locate
Morris because the day of the admissibility hearing was the first day of trial testimony.
“That additional efforts might have been made or other lines of inquiry pursued does not
affect [a] conclusion [there was due diligence] . . . . It is enough that the People used
reasonable efforts to locate the witness.” (People v. Cummings (1993) 4 Cal.4th 1233,
1298.)
         We conclude the People exercised due diligence to secure Morris’s attendance at
trial, he was unavailable as a witness from October 11, 2011, through October 13, 2011,
inclusive, and the trial court did not violate appellant’s confrontation right or due process
right by admitting into evidence Morris’s preliminary hearing testimony.




                                              10
2. The Trial Court Did Not Erroneously Restrict Appellant’s Jury Argument.
       a. Pertinent Facts.
       During the People’s case-in-chief, Braudrick testified during cross-examination
that Braudrick had heard from some witnesses that there were different numbers of
suspects. Appellant’s counsel asked Braudrick whether some witnesses described seeing
three suspects. Braudrick replied, “One witness.” Appellant’s counsel asked Braudrick,
“Some described seeing two suspects, correct?” (Italics added.) Braudrick replied,
“Majority of witnesses, all except for one, and it would be probably seven, nine people.”
       During appellant’s closing argument, appellant’s counsel commented, “But when
[Braudrick] took the stand, and asked [sic], detective, did you have reports of
eyewitnesses saying that there were . . . two and three suspects that were seen? And he
said, yes, they had those reports.” (Italics added.) Appellant’s counsel then commented
“we know about two other people [i.e., Morris and appellant] present.”
       The following then occurred: “[Appellant’s Counsel]: But there are reports out
there, you know, of a third person. [¶] [The Prosecutor]: Objection, your Honor.
Outside the scope of the evidence. [¶] The Court: Sustained. . . . [¶] [Appellant’s
Counsel]: . . . [¶] Detective Braudrick conceded he has received such . . . information.
[The Prosecutor]: Objection -- [¶] The Court: Sustained. . . . [¶] [The Prosecutor]:
Motion to strike. [¶] The Court: Sustained. [¶] Counsel, you must limit your argument
to the evidence that is before this jury.”
       Later, appellant argued to the jury that appellant testified as follows. Morris
crossed the street around 53rd, and appellant said to himself, “ ‘I don’t know why he’s
doing that.’ ” Zig Zag pulled out a gun, appellant fled, and appellant felt a bullet go by
his ear. Appellant and the shooter ran down the alley. Appellant was not the shooter.




                                             11
       b. Analysis.
       Appellant, citing the above quoted colloquy during which appellant’s counsel
commented, “But there are reports out there, you know, of a third person,” (italics added)
claims the trial court erroneously precluded appellant from arguing to the jury his third
party culpability defense. We disagree.
       During jury argument, appellant’s counsel commented to the effect there were
reports of eyewitnesses that there were two and three suspects. The comment
erroneously suggested Braudrick had testified there were multiple reports of eyewitnesses
that there were three suspects. The prosecutor did not object to the comment, perhaps
because Braudrick had testified to the effect there were multiple reports of eyewitnesses
that there were two suspects, coupled with one report from one eyewitness that there were
three suspects.
       However, appellant’s counsel’s later comment during jury argument went beyond
a mere suggestion there were multiple reports of eyewitnesses that there were three
suspects. Appellant’s counsel later explicitly commented, “there are reports [plural] out
there, . . . of a third person.” (Italics added.) Appellant’s counsel later said Braudrick
had conceded he had received such information. In our recitation of the pertinent facts,
we have quoted what Braudrick testified. Appellant does not direct our attention to any
testimony by Braudrick that there were “reports” of a “third person.”
       Penal Code section 1044 requires a trial court to limit argument of counsel to
relevant and material matters. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1387.) A
trial court has the responsibility to limit argument to defenses supported by substantial
evidence. (Id. at p. 1386.) “[T]he California Supreme Court has upheld the exercise of
discretion by trial judges which have limited the right of counsel for the accused to
present factually unsubstantiated contentions to a jury.” (Id. at p. 1388.)
       Appellant concedes he presented to the jury third party culpability evidence. Our
recitation of the pertinent facts reveals appellant also presented jury argument concerning
that defense. Appellant explicitly argued he was not the shooter, and appellant suggested

                                             12
Zig Zag was the shooter. The fact appellant, during jury argument, may have been
satisfied to explicitly deny that he was the shooter while only suggesting Zig Zag was the
shooter did not mean the trial court precluded appellant from arguing a third party
culpability defense.
       All the trial court did here was properly preclude appellant’s counsel from
presenting the particular factually unsubstantiated argument that there were multiple
reports of a third person. The trial court did not, by precluding that particular argument,
abuse its discretion or violate appellant’s constitutional rights to due process, to counsel,
to confront witnesses, or to present a defense. Even if the trial court abused its discretion
by precluding that particular argument, appellant otherwise argued his third party
culpability defense and there was ample evidence of his guilt; therefore, the alleged state
law error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).)
3. The Trial Court Did Not Err by Permitting Francisco Tzoc to Testify.
       During the People’s case-in-chief, appellant, outside the presence of the jury,
indicated the prosecutor planned to call Francisco Tzoc (Francisco), the decedent’s
nephew, as a witness. The court asked the prosecutor for an offer of proof as to
relevance.
       The prosecutor represented, inter alia, as follows. A “wallet insert with
photographs” was found in the alley, and Francisco could identify the photographs as
depicting Tzoc’s relatives. The prosecutor represented, “I think also [Francisco] can
testify that [Tzoc] was not involved in gangs or had no gang tattoos. That he was . . . a
human being. For the purposes of 187.”
       The court indicated an autopsy photograph had established Tzoc was human. The
following then occurred: “[The Court:] With respect to your offer of proof as to the
wallet being in fact that of the victim makes perfect sense to me.” [¶] [Appellant’s
Counsel]: We would stipulate.” (Sic.) The court indicated it understood but would not



                                             13
insist that the People join in the stipulation. The court asked the prosecutor to limit her
questions to her offer of proof.
       During trial, Francisco testified, inter alia, as follows without further objection. A
photograph displayed at trial depicted Tzoc, Francisco’s uncle. Francisco never knew
Tzoc to have been involved with criminal street gangs or to have gang tattoos.
       The prosecutor showed Francisco photographs. One depicted Tzoc’s daughter.
The prosecutor indicated there was “another photograph on this wallet insert,” and
Francisco testified the photograph depicted Tzoc’s wife. The prosecutor asked whether a
portion of a wallet that the prosecutor was displaying belonged to Tzoc. Francisco
indicated he was not sure.
       Appellant claims the trial court erroneously rejected appellant’s offer to stipulate
Tzoc was a human being, Tzoc was not a gang member, and the wallet insert recovered
from the vicinity of the shooting contained photographs of Tzoc’s family. Appellant also
maintains the trial court erroneously allowed Francisco to present irrelevant and
inflammatory testimony on those issues. We disagree.
       First, the burden is on appellant to demonstrate error; it will not be presumed.
(Kathy P., supra, 25 Cal.3d at p. 102.) Fairly read, the record demonstrates appellant
offered to stipulate only to the fact the wallet belonged to Tzoc. To the extent appellant’s
claim relates to any other alleged stipulation offer, his claim fails.
       Second, “ ‘ “[T]he general rule is that the prosecution in a criminal case cannot be
compelled to accept a stipulation if the effect would be to deprive the state’s case of its
persuasiveness and forcefulness.” ’ [Citation].” (People v. Homick (2012) 55 Cal.4th
816, 878.) We review for abuse of discretion a trial court’s decision not to compel such
acceptance. (People v. Waidla (2000) 22 Cal.4th 690, 723, fn. 5 (Waidla).)
       Appellant, by his stipulation offer, effectively conceded the relevance and
admissibility of proof concerning the wallet. The trial court reasonably could have
concluded appellant’s offered stipulation would have deprived the People of the force of
the evidence that real, tangible property—a wallet—was taken from a real human being

                                              14
whose life was brutally ended during a robbery. The trial court did not abuse its
discretion by not compelling the People to accept appellant’s offered stipulation
concerning the wallet.
       Evidence that Tzoc was homeless and not involved with gangs was relevant and
admissible to show Tzoc had been innocently at the scene and had not engaged in gang-
motivated violence prior to appellant’s offenses. The trial court did not abuse its
discretion by allowing Fernando to testify on these matters. (See Waidla, supra,
22 Cal.4th at pp. 717, 723-724.) Moreover, Francisco never testified as to Tzoc’s
obvious status as a “human being,” Francisco ultimately was unsure in his identification
of a portion of the wallet, and there was ample evidence of appellant’s guilt. No
prejudicial evidentiary error occurred. (Cf. Watson, supra, 46 Cal.2d at p. 836.)
4. Sufficient Evidence Supported the True Findings as to the Gang Enhancement
Allegations.
       The jury found as to each of counts 1 and 2 that appellant committed the offense
“for the benefit of, at the direction of, or in association with” a criminal street gang within
the meaning of former Penal Code section 186.22, subdivision (b)(1). Appellant claims
there is insufficient evidence supporting these findings. We reject appellant’s claim.
       There is no dispute Crips was a “criminal street gang” within the meaning of Penal
Code section 186.22, subdivision (b)(1). There was substantial evidence as follows.
Appellant violently murdered and robbed Tzoc, shooting him four times in the back. At
the time, appellant was with Morris, and both were Crips members. A member of
Trouble, a gang that was a close ally of the Crips, was also present. A gang member
committed crimes while accompanied by another gang member or associate to enhance
the reputation of the first gang member. The murder occurred in broad daylight in Crips
territory. Appellant’s companion was “yelling [appellant] on.” Appellant told Morris
that appellant was looking for Hispanics to rob. The overwhelming majority of Crips
members were African-Americans, and appellant testified Zig Zag said, “ ‘Let’s get



                                              15
him,’ ” referring to a Hispanic man. The jury reasonably could have concluded based on
all the evidence that appellant had said this, not Zig Zag.
       Sieker testified if a violent crime occurred at 52nd and Vermont, people in the
community would strongly infer the crime was related to the Crips. When Crips
members committed violent crimes in broad daylight, this enhanced the gang’s violent
reputation. Crips benefited from this reputation because it instilled in citizens a fear that
there would be retaliation if they aided the prosecution of Crips members for their crimes.
Sieker opined the crimes were committed for the benefit of the Crips. Braudrick found,
in appellant’s home, lyrics written by appellant referring to Crips. A portion of the lyrics
said, “ ‘Fuck around with me and get yourself smoked,’ ” i.e., shot.
       Appellant testified he denied to a detective that appellant knew Morris. The jury
reasonably could have concluded appellant denied knowing Morris to falsely minimize
the involvement of both Morris (a fellow Crips member) and the Crips in the shooting.
Appellant also testified he admitted the shooting to Morris because appellant believed
Crips members were listening to appellant’s conversation with Morris. The jury
reasonably could have believed appellant truthfully admitted the shooting to Morris to
enhance the violent reputations of appellant and the Crips, and that enhancing those
reputations was one of appellant’s objectives when he committed the crimes.
       We conclude there is sufficient evidence supporting the true findings as to the
gang enhancement allegations, including sufficient evidence to convince a rational trier
of fact, beyond a reasonable doubt, that appellant committed the present offenses “for the
benefit of, . . . or in association with any criminal street gang” within the meaning of
former Penal Code section 186.22, subdivision (b)(1). (Cf. People v. Abillar (2010)
51 Cal.4th 47, 59-63; People v. Leon (2008) 161 Cal.App.4th 149, 163; People v. Romero
(2006) 140 Cal.App.4th 15, 19-20; People v. Morales (2003) 112 Cal.App.4th 1176,
1198-1199.)




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5. There Was No Need for the Trial Court to Instruct Sua Sponte on the Incidental
Robbery Theory.
       Appellant claims the trial court had a sua sponte duty to instruct on the incidental
robbery theory as it related to robbery-murder and the robbery special circumstance. We
disagree.
       As our Supreme Court stated in People v. Lewis (2009) 46 Cal.4th 1255 (Lewis),
“the felony-murder special-circumstance finding must be ‘based upon proof that the
defendant intended to commit the underlying felony separately from forming an intent to
kill the victim; that is, the felony was not merely an afterthought to the murder, as when,
for example, the defendant intends to murder the victim and after doing so takes his or
her wallet for the purpose of making identification of the body more difficult. [Citation.]’
[Citation.]” (Lewis, at p. 1300, quoting People v. Rundle (2008) 43 Cal.4th 76, 156.)
However, “ ‘Concurrent intent to kill and to commit an independent felony will support a
felony-murder special circumstance.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 554.)
       There is no dispute there was sufficient evidence that, prior to the shooting,
appellant expressed an intent to rob. However, appellant argues he later harbored only an
intent to kill, and not an intent to rob, when he saw Tzoc. Appellant maintains the
evidence Tzoc was homeless was evidence from which the jury reasonably could have
inferred appellant concluded Tzoc had no money, leading appellant to abandon his intent
to rob him. However, there was no evidence homeless people have no money, appellant
believed that, or appellant, based on that belief, abandoned an intent to rob Tzoc. Instead,
there was ample evidence appellant harbored independent concurrent intents to rob and
kill Tzoc.
       Appellant also maintains the fact appellant shot Tzoc four to five times at close
range, killing him, was not consistent with concurrent intents to kill and to rob.
However, “We have observed that ‘when one kills another and takes substantial property
from the victim, it is ordinarily reasonable to presume the killing was for purposes of
robbery.’ [Citations.] ‘If a person commits a murder, and after doing so takes the

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victim’s wallet, the jury may reasonably infer that the murder was committed for the
purpose of obtaining the wallet, because murders are commonly committed to obtain
money.’ [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 187, italics added.)
       Finally, there was substantial evidence that appellant used fear with intent to rob
Tzoc when appellant caused him initially to flee, and that appellant used force with intent
to rob Tzoc when appellant later shot him in the back. Notwithstanding appellant’s
suggestion to the contrary, the fact appellant still later used additional force to rob Tzoc
when appellant held Tzoc and went through his pockets did not require the trial court to
give incidental robbery instructions.
       The trial court was under no duty to instruct sua sponte on the incidental robbery
theory as it related either to robbery-murder, or to the robbery special circumstance
because, in light of the facts in this case, the theory cannot properly be characterized as a
general principle of law that was closely and openly connected with the facts before the
trial court (People v. Phillips (1985) 41 Cal.3d 29, 60) and there was no substantial
evidence to support such instructions. (Cf. People v. Tufunga (1999) 21 Cal.4th 935,
944; People v. Harden (2003) 110 Cal.App.4th 848, 861-864.)




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KITCHING, J.

We concur:




             KLEIN, P. J.




             ALDRICH, J.




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