Filed 11/12/13 P. v. Riggins CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


THE PEOPLE,                                                                                  C069494

                   Plaintiff and Respondent,                                     (Super. Ct. No. 08F00290)

         v.

JAMES LAMAR RIGGINS et al.,

                   Defendants and Appellants.




         In a story that is becoming all too familiar, rival gang members clashed over their
perceived territory, words quickly escalated to gunfire, two young men are now dead, and
a third was seriously wounded. Isidro Cedillo and Rigoberto Aguirre were killed, and
Isidro’s twin brother, Victor Cedillo, was shot multiple times. The confrontation began
when the aggressor gang members hurled verbal threats outside the Cedillos’ home.
When the three young men came out of their home to confront the aggressors, one of the
aggressors began shooting with a semiautomatic handgun, hitting all three of their
perceived rivals, and killing two of them in front of their home.
         The gunman, James Lamar Riggins, was found guilty of two counts of first degree
murder with a multiple murder special circumstance, and one count of attempted murder.


                                                             1
As to each count, the jury found true allegations that he personally and intentionally
discharged a firearm causing great bodily injury or death, and that the crime was
committed for the benefit of a criminal street gang. As to the attempted murder count,
the jury also found true the allegation that he personally inflicted great bodily injury. The
trial court sentenced Riggins to life in prison without the possibility of parole plus 145
years to life in prison.
       The jury found the other two defendants, Christopher Anthony Hernandez and
Orlando Gabino Camacho, not guilty of the two first degree murder charges, but guilty of
the lesser offenses of voluntary manslaughter. The jury found Hernandez and Camacho
not guilty of attempted murder, but guilty of the lesser offense of attempted voluntary
manslaughter. The jury found the arming enhancements untrue as to Hernandez and
Camacho, but found true the allegations that the crimes were committed for the benefit of
their gang. The trial court sentenced each of them to 30 years and 8 months in prison.
       Defendants argue the trial court committed various evidentiary, instructional, and
sentencing errors, and erred in imposing certain fees. They also argue they should have
had access to juror information for the purpose of developing a motion for new trial. We
shall remand for correction of the sentencing errors, but otherwise affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The crimes at issue in this case were motivated by gang animus. Aside from the
fact that the victims and defendants associated with rival gangs, defendants blamed the
victims for putting a fellow gang member behind bars.1 That prior incident occurred in
2007. Twin brothers Victor and Isidro Cedillo were standing outside a liquor store when




1 Police believed Victor Cedillo was associated with the Sureño street gang, and
observed that Isidro Cedillo wore typical Sureño attire. Isidro had not had any contact
with law enforcement. Police had no prior contact with Rigoberto Aguirre, and had no
indication he was a gang member.

                                              2
they saw Frank Camacho, a Varrio Diamond Sacra (VDS or Diamonds) gang member.
Victor and Isidro knew Frank Camacho from high school. Frank Camacho called the
brothers Scraps, which is a derogatory term for Sureño gang members. Victor and Isidro
called Frank Camacho names as well. The brothers returned home, and shortly thereafter
saw Frank Camacho in the front passenger seat of a car that was driving by, holding a
gun and pointing it toward the Cedillos’ house. Victor picked up a rock and threw it at
the passing vehicle. Frank Camacho fired two shots and the car sped away. Frank
Camacho was convicted of this crime. In December 2007, Victor Cedillo heard rumors
that Frank Camacho was going to get out of jail and come kill him.
      On January 11, 2008, Victor and Isidro were living in a house on 73rd Street with
their mother Carmen Rivas, her boyfriend Adolfo Blancarte, Rigoberto Aguirre, Jonathan
Ramirez, and others. They had recently moved to 73rd Street because the house they had
been living in was being shot at in drive-by shootings. Their mother thought the 73rd
Street house was in a calmer neighborhood.
      On the night of the murders, January 11, 2008, defendants James “Stomps”
Riggins and Christopher “Fat Boy” Hernandez were driving from one party to another in
Riggins’s Crown Victoria. Also in the car were Noemi Perez and Crystal Picasso.
Riggins and Hernandez were VDS gang members. They drove down 73rd Street and saw
three guys (the victims) outside a house. Hernandez said that the three should not be in
his “hood” and yelled at them and threw up his index and middle fingers in the sign of the
Diamonds. Riggins drove on to a nearby house where they picked up defendant Orlando
“Silent” Camacho. Camacho was also a VDS gang member, and was the cousin of Frank
Camacho.
      After Camacho got in the car, defendants talked about wanting to fight the three
guys that were outside the house on 73rd Street. They called them “Scraps.” Hernandez
said he wanted to go fight them. Camacho said he did not, but that he would have their
backs. They drove back and parked on the corner of 73rd Street and 14th Avenue.

                                             3
According to the females in the car, there was no talk about weapons, about ambushing,
about killing, or about hurting anyone. However, the men did indicate they were going to
fight the three guys outside the house on 73rd Street. Defendants got out of the car and
walked down 73rd Street. Picasso and Perez stayed in the car.
      Aguirre had just come home from work and was walking up to the house when
one of the three defendants, later determined to be Riggins, stopped and talked to him.
However, Aguirre did not speak English. After speaking to Aguirre, Riggins continued
on down the street with his hands in his pockets. Aguirre went inside.
      Isidro and Victor Cedillo were inside the house eating when Aguirre came inside.
Everyone else in the house had gone to bed. The Cedillos heard people yelling outside
the house when Aguirre came in. Aguirre told the Cedillo brothers in Spanish that he did
not understand what the people were saying to him. Victor heard people on the lawn
yelling out “scrap killer” and “14th Avenue,” and “Diamonds.” He looked outside and
saw two guys (Camacho and Hernandez) on his front lawn.
      Isidro Cedillo became angry and went outside, telling the intruders (Camacho and
Hernandez), “Fuck your hood. I don’t care where you guys claim.” Camacho and
Hernandez started throwing up gang signs and shouting gang nonsense. Aguirre went
outside also, and Victor Cedillo followed them as soon as he put on his shoes. Victor did
not see his brother or Aguirre pick up anything before they left the house, but he grabbed
a folding chair to use to defend himself. Victor saw the two men who had been yelling
run to a car, which he recognized as the one that drove by earlier, the occupants of which
had thrown out gang signs. One of them reached into the back seat. Victor panicked
because he did not know what the person was reaching for, and screamed at the other two
to go back to the house. They all turned around and ran back toward the house.
      Victor was still holding the chair. He did not see his brother or Aguirre throw
anything at the other two men, or hit them with anything. As they ran toward their house,
Victor saw a guy come out from behind a car and approach them from the opposite

                                            4
direction. The guy reached toward his waist and pulled out a gun. He immediately
started shooting. The gunman shot both Isidro and Aguirre as they ran away. He shot at
Isidro six or seven times before turning the gun on Aguirre. Victor ran and hid behind a
car, but not before the gunman (Riggins) shot him in the hand, the leg, the thigh, the
lower back and the buttocks, for a total of eight bullet wounds. Victor heard Riggins run
back toward where his car was parked on 14th Avenue.
       Crystal Picasso, who was waiting in the front seat of Riggins’s car, testified that
when Camacho and Hernandez ran back to the car she saw two or three men chasing
them with chairs in their hands. Picasso asked where Riggins was, and without
answering, Camacho and Hernandez turned around to go back. Then Picasso heard a lot
of gunshots. She thought the shooter probably emptied the gun. She guessed there were
10 shots, and it sounded like it was from the same gun. All three guys then came running
back. Riggins said, “I know I got one, I know I got one.” Hernandez said, “You should
have let me do it. I would’ve got all of them.” Then they laughed. Hernandez said he
had “kept telling” Riggins to give the gun to him.
       A witness on 14th Avenue, where Riggins’s car was parked, saw the three
defendants running from 73rd Street. They had their hands in the air, appeared boastful,
and shouted something about “stone killers.”
       Riggins drove away fast. They headed for West Sacramento. At 12:15 a.m. a
West Sacramento Police officer pulled Riggins over for speeding. Noemi Perez saw
Riggins pass the gun to Camacho, who was in the back seat, and tell Camacho to run, but
Camacho did not want to run. Because the officer was needed on another call, could not
detect the odor of alcohol in the car, and did not see any signs of driver impairment, he let
Riggins go at approximately 12:20 a.m. At approximately 12:30 a.m. he received a
notification that the vehicle he had stopped was being sought in connection with a murder
in Sacramento.



                                             5
       After being stopped by the police, Riggins drove the group to a house in West
Sacramento, where a party was going on. Riggins took a shower. Noemi Perez saw
Camacho and Hernandez passing the gun around at the party.
       Stevie Ramirez testified that he was a former VDS gang member. Two days after
the shooting, he told a detective investigating the case that Riggins told him that he
(Riggins) had thrown his gun over the West Capitol Bridge. Ramirez told the detective
that he did not want to talk because if he did, his life and his family’s lives would be in
jeopardy. He told the detective that he needed protection. On the stand, Ramirez claimed
everything he told the detective was a lie.
       Several witnesses to the murders testified they heard multiple gunshots. Some
thought the shots all came from one weapon, but others thought they heard two different
weapons. A total of 16 shell casings were collected at the scene. They were found in a
half-circle pattern. All casings contained the same marking -- 9mm Win Luger. Six
expended bullets were recovered, including one bullet fragment. All of the bullets
collected were the same color. Five of the expended bullets were 9mm Luger jacketed
soft-nosed bullets. The damaged bullet fragment could have been a 9mm Luger, but the
fragment was too damaged to make a definite determination. All of the cartridge casings
came from the same gun -- a semiautomatic or fully automatic firearm. It was possible,
though not definitively determined, that the firearm which fired all of the cartridge
casings fired all the bullets as well.
       Only one chair, a metal folding chair, was found and collected from the scene. No
guns were recovered from the scene, but a neighbor testified she saw a man take
something from the vicinity of one of the victims.
       Isidro Cedillo was shot in the left thigh, right thigh, and right knee. The fatal
gunshot was to his left back over the shoulder blade, which damaged his lungs and aorta,
and exited his chest. Isidro was not facing his shooter when he was shot. Aguirre died of



                                              6
a single gunshot wound to his back that exited his front and damaged his pulmonary
artery.
          Riggins testified at trial. He admitted to being a VDS gang member. He admitted
he was angry at the Cedillo brothers for sending Frank Camacho to jail for shooting at
their house, and for calling the police and setting Riggins up. He admitted that he agreed
to go fight the Cedillos and that he had a gun with him, but claimed he did not intend to
use it. His defense was that when the Cedillos and Aguirre noticed him, they started
yelling aggressively, then one pulled out a gun and shot at him twice. He was scared for
his life, so he pulled out his gun and started shooting.
          Hernandez also testified at trial. He never saw anyone with a gun. When he heard
the gunshots, he ducked down and ran back to the car. He admitted Riggins had said that
he thought he got one, and that he responded Riggins should have given him the gun
because he would have got them all, but that was only because he did not want everyone
to think he was a coward. He had not known anyone was going to shoot.
                                        DISCUSSION
                                              I
                        Exclusion of Perez’s Double Hearsay Statement
          Riggins and Hernandez argue their rights to present a defense, to confront the
witnesses against them, and to due process were violated when the trial court excluded
the hearsay statements of Hernandez and Camacho that the victims had thrown chairs at
them. Camacho generally joins in the argument.
          A. Underlying Facts
          During cross-examination by Camacho’s defense counsel, Noemi Perez was asked
about a statement she had made to a defense investigator. She was asked whether she
told the investigator that when Camacho and Hernandez returned to the car the first time,
they said the other guys were throwing chairs and had bats. She said she did not
remember. Camacho’s defense counsel asked to approach.


                                               7
       Later, during cross-examination by Hernandez’s counsel Perez was asked about
the demeanor of Hernandez and Camacho when they first returned to the car. Counsel
asked if they had appeared scared, to which Perez replied they had. Counsel then asked if
they were excited or upset about what had happened. The trial court sustained the
prosecutor’s objection that the question was leading. Then counsel asked Perez to
describe the demeanor of Camacho and Hernandez when they returned to the car. Perez
replied that she did not remember.
       Counsel refreshed Perez’s memory of a prior statement she had made to the
defense investigator. When asked the question again, she indicated Camacho and
Hernandez had appeared tired and scared. Counsel asked if they had said anything, and
she replied, “No.” Counsel then asked, “At some point, did Christopher or Orlando say
to you that the other guys --[.]” The prosecutor objected on hearsay grounds, and the
objection was sustained following an unreported discussion.
       B. Trial Court’s Ruling
       In a later discussion on the record, the trial court indicated counsel for Hernandez
had tried to use Perez’s earlier statement to investigators, that Camacho and Hernandez
said the victims had thrown chairs at them and that they had bats, to impeach her
statement that she could not now remember them saying anything. The trial court stated:

              “There are two points of analysis. One was that because she doesn’t
       remember making that statement, it is hearsay inconsisten[cy] and therefore
       it comes in through the rule on inconsistency.

              “But in this case the underlying statement itself is offered for the
       truth of the matter asserted and for that second leg they were offering
       excited utterance.”
       The trial court then noted that the evidence in support of the defense’s claim that
the statement constituted an excited utterance was that the defendants were tired and
scared when they returned to the car. The trial court agreed that Perez’s failure to
remember on the stand was inconsistent with her earlier statement. However, as to the


                                              8
excited utterance, the court found that it could consider whether the declarants had a true
suspension of their ability to filter their statements, or whether there was some motivation
for the statement. The court concluded: “when I look at [the] quite candidly thin
description of their excitement or fear when they entered the car, and also consider the
motivation to provide a justification for subsequent conduct, it doesn’t have the kind of
suspension of filtering process such that it is appropriately an exception to the hearsay
rule.”
         The request to admit the statement was renewed after some evidence was admitted
that Victor Cedillo had been armed with a chair. Specifically, Victor testified he had
taken a chair with him when he went outside and Crystal Picasso’s interview with police
was admitted in which she stated “It looked like they had like a chair or bat or something
like that.” During the renewed request, it was asserted that Hernandez was the one who
stated they had been chased with bats.
         The trial court confirmed its earlier ruling, stating it had taken into account
Hernandez’s gang involvement and prior involvement in a couple of confrontations when
evaluating Hernandez’s state of mind when he made the statement. The court also
considered Noemi Perez’s testimony that the three defendants went to the house to fight,
and the evidence from which an inference could be made that Hernandez knew that
Riggins had a gun. The court also noted that Noemi Perez was asked whether Hernandez
made any statement while he was in a state of fright, and she answered, “no.”
         In confirming its earlier ruling, the trial court stated:

                 “This is a statement that would be exculpatory for subsequent
         conduct, indeed, virtually immediately thereafter, these two gentlemen,
         both of them Mr. Hernandez and Mr. Camacho join in the effort again or
         rejoin the incident knowing of course that Mr. Riggins is armed and
         knowing that they went there to fight.

               “Consistent with the cases I’ve cited, it’s a factor that you can
         consider in evaluating whether or not this is truly a spontaneous
         exclamation or something that is said to explain or justify past conduct or

                                                 9
       subsequent conduct, an exculpatory statement that a reasonable person
       would make.

               “When I look at the totality of these factors and the case law that I
       referenced, I don’t see the kind of spontaneous exclamation from
       unexpected, untoward, exciting event that occurs that is made without
       reflection or without the reasonable likelihood or possibility certainly that’s
       being made for other purpose[s]. So I confirm my earlier ruling.”
       C. Analysis
       A spontaneous declaration or excited utterance is an exception to the hearsay rule.
It is a statement that “(a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant
was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.)
       The requirements for an admissible spontaneous declaration are: “(1) there must
be some occurrence startling enough to produce this nervous excitement and render the
utterance spontaneous and unreflecting; (2) the utterance must have been before there has
been time to contrive and misrepresent, i. e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the
utterance must relate to the circumstance of the occurrence preceding it.” (Showalter v.
Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468.)
       “The crucial element in determining whether an out-of-court statement is
admissible as a spontaneous declaration is the mental state of the speaker.” (People v.
Gutierrez (2009) 45 Cal.4th 789, 811.) The speaker’s mental state must be such that the
speaker is dominated by nervous excitement and speaks without reflecting, contriving, or
misrepresenting. (People v. Lynch (2010) 50 Cal.4th 693, 751-752, abrogated in part on
other grounds as stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-638.) A
defendant’s self-serving statements are inherently suspicious. (People v. Frierson (1991)
53 Cal.3d 730, 745-746.)
       We review the trial court’s decision whether to admit a spontaneous statement for
abuse of discretion. (People v. Stanphill (2009) 170 Cal.App.4th 61, 73.) “[T]he


                                              10
discretion of the trial court is at its broadest” when it determines whether an utterance
was made while the declarant was still in a state of nervous excitement. (People v. Poggi
(1988) 45 Cal.3d 306, 319.)
       The trial court focused on whether Hernandez’s statement was a spontaneous
declaration because it agreed with the defense that Perez’s failure to remember his
comment was inconsistent with her prior statement. The trial court reasoned that while
an incident involving chair throwing might create some excitement, it was not of the
same character as the nervous excitement that Hernandez might be expected to
experience had the victims been shooting. The court found the evidence of any nervous
excitement “thin.” Additionally, Hernandez was a gang member who had been involved
in confrontations before, and understood that he and his codefendants were going to the
house to fight. There was also evidence from which the trial court could reasonably
conclude that Hernandez knew Riggins had taken a weapon to the fight.
       All of these factors weighed against a determination that Hernandez was so
excited by being chased by two people with chairs or bats that his reflective powers were
in abeyance when he made the statement. This coupled with the fact that the statement
was exculpatory and self-serving was enough for the trial court to correctly determine
that Hernandez did not have the mental state to make a spontaneous declaration. The trial
court did not abuse its broad discretion in excluding Hernandez’s hearsay statement.
       Turning to the defendants’ constitutional arguments, they claim with little
explanation that the exclusion of Perez’s statement to an investigator violated their
federal Fifth and Sixth Amendment rights to present a defense, their Sixth Amendment
right to confront and cross-examine the witnesses against them, and their Fourteenth
Amendment right to due process. The arguments have no merit because defendants
forfeited the constitutional claims by failing to raise them below, because there was no
error on which to base the constitutional claims, and because the exclusion of evidence
pursuant to state law did not violate the defendants’ right to present a defense.

                                             11
       The trial court specifically informed the parties that it would federalize all hearsay
objections, but “[a]ny other objections that raise constitutional issues, you’ll have to state
it, what it is so I know if you are asserting some due process issue or something else.”
The parties stated they had no objection to proceeding in that fashion. Defendants failed
to raise below any objections on the federal constitutional grounds they now claim. The
constitutional objections were not preserved for appeal. (People v. Raley (1992) 2
Cal.4th 870, 892.) Hernandez’s reply brief argues People v. Partida (2005) 37 Cal.4th
428 does not preclude the argument on appeal. Had we determined the trial court’s ruling
on the objection actually raised at trial was erroneous, we could consider the
consequences of that error, including whether the error was so serious as to violate due
process. (Id. at p. 437.) However, as we conclude that the trial court did not abuse its
discretion in excluding Perez’s statement, there is no error on which to base defendants’
constitutional claims. (People v. Roybal (1998) 19 Cal. 4th 481, 506, fn. 2.)
       Finally, the exclusion of Perez’s statement did not violate the defendants’ rights
under the Fifth, Sixth, and Fourteenth Amendments. “ ‘As a general matter, the ordinary
rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to
present a defense. . . .’ [Citation.] [¶] It follows, for the most part, that the mere
erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal
Constitution.” (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
       Furthermore, evidence in support of defendants’ self-defense theory was not
completely excluded. Victor Cedillo testified he armed himself with a chair before going
outside. Crystal Picasso testified she saw two or three of the victims holding chairs and
chasing the defendants. Her prior interview statement was admitted into evidence,
wherein she stated she thought the victims had chairs or bats in their hands. She testified
that Hernandez and Camacho had appeared scared when they came running back to the
car. Hernandez testified that he saw Victor come rushing out with a chair and figured
they were going to get hit, so he and Camacho ran away. A witness heard a folding chair

                                              12
hit the ground. Riggins testified the victims had “chairs and stuff” in their hands and
were yelling at him. A chair was found at the scene.
       Because evidence the victims were armed with at least one chair and possibly with
bats was not completely excluded, the exclusion of Perez’s statement did not interfere
with defendants’ right to present a defense. (People v. Cunningham (2001) 25 Cal.4th
926, 999.) Defendants’ constitutional arguments regarding the exclusion of Perez’s
statement fail.
                                            II
                           Evidence of Uncharged Act (Camacho)
       The prosecutor brought a motion in limine to admit evidence of defendants’ gang
involvement. The prosecutor proposed to admit the evidence both in support of expert
opinion and for the truth of the matter for purposes of motivation and for the gang
enhancement (Pen. Code, § 186.22, subd. (b)). The particular incident to which
Camacho’s argument is directed occurred in July 2007, approximately six months prior to
the crimes at issue in this case.
       The prosecutor initially stated that she would call the officer who responded to a
shooting, and who found defendant Camacho with his cousin Frank Camacho and two
other validated gang members in a bedroom. Frank Camacho was hiding under the bed,
defendant Camacho was sitting on the bed, and the gun was also found in the bed.
Defendant Camacho’s hands were bleeding.
       The trial court initially ruled that it would preclude evidence of the shooting and of
defendant Camacho’s hands bleeding. However, it overruled the objection to admission
of the incident because it was recent in time, the probative value was significant for intent
and motivation (both general motivation and the intent to assist a criminal street gang),
and because the prejudicial effect was comparatively minor.
       Camacho’s counsel requested the following instruction, which the trial court gave
with respect to evidence of alleged prior incidents of misconduct:


                                             13
               “This evidence can be considered by you consistent with instructions
       I’ll give you later in evaluating whether or not the defendants intended to
       promote or further criminal street gang activity, or whether or not that
       intent serves as a motivation to engage in conduct that was engaged in as
       alleged by the People.

               “You cannot consider this evidence to show that any one of these
       defendants have a propensity for violence or a character trait of criminal
       activity, that would be improper and [an] incorrect use of this evidence.

               “I’ll give more instructions on this issue. You can consider it as it
       goes to intent to participate for motive in a criminal street gang, or as that
       intent relates to motivation to engage in conduct that was alleged, but you
       can’t consider it to show that [they have a] propensity for violence or
       character trait of being criminal in nature, that’s inappropriate.”
       Camacho then filed a motion in limine objecting to the admission of the incident
pursuant to Evidence Code sections 352 and 1101. The trial court ruled on the matter
after reviewing the police report of the prior incident. The court recounted the facts from
the police report for the record. A group of Hispanic men had been “hanging out” on a
car when another vehicle drove by. One of the Hispanic men shouted “gang war” and
shooting commenced. Officers were nearby and responded almost immediately. Inside
the vehicle located in front of the residence was a bloody handprint. Officers followed a
trail of blood from the seat of the car to the front door of the house. The homeowner
consented to a search of the house. A number of people were found in a bedroom,
including defendant Camacho who was bleeding profusely from a significant injury to his
hand. He denied any knowledge of the shooting. Defendant’s cousin Frank Camacho
was found hiding under the bed. In the bed was a firearm that had recently been
discharged. No arrests were made and no prosecution was undertaken. The police could
not determine what had occurred.
       The trial court expressed that the prejudicial effect of admission would be that the
jury might speculate that defendant Camacho was the instigator of the shooting, that he
fired the gun unlawfully, or that he engaged in substantive criminal misconduct. The



                                             14
court expressed the opinion that a fuller version of the facts would actually mitigate any
prejudice, because it would raise an inference that Camacho was not the aggressor.
       The court found that the evidence had probative value as to defendant Camacho’s
cooperation and collaboration with members of a gang, and that any prejudicial effect
because of speculation that he did something criminal in nature did not outweigh the
probative value. The court ordered that the prosecution not argue or present to the jury
any claim that Camacho had committed some illegal act relating to the prior shooting
incident, and that the expert not give any such opinion.
       Thereafter, Detective Don Schumacher gave his expert opinion that defendant
Camacho was a member of the Diamonds gang. The opinion was based in part on the
incident in July 2007. Immediately after Detective Schumacher’s testimony regarding
the July 2007 incident, the trial court gave the following limiting instruction:

              “All of this evidence however cannot be considered as evidence that
       these gentlemen have propensity for violence or a bad character such that
       they are more likely have committed the crimes which are charged here.

             “It can only be considered as to whether or not they have intent or
       motivation to engage in conduct on behalf of a criminal street gang.”
       Another responding officer also testified regarding the July 2007 incident, after the
trial court ruled that any references to “male Hispanic subjects” be deleted. He also
testified about the car with a bloody handprint, following the blood trail to the house,
locating a bleeding defendant Camacho inside a bedroom of the house, finding a recently
fired weapon in the bedroom, finding defendant Camacho’s cousin Frank Camacho
hiding under the bed, and hearing defendant Camacho claim to have hurt his hand when
he punched a fence.
       Camacho argues the trial court erred in admitting evidence of the July 2007
incident because it was not relevant to the murder charge or to the gang enhancement,
and even if it were relevant to the gang enhancement, it was unnecessary in light of “the



                                             15
plethora of evidence presented on appellant’s gang affiliation and association with other
gang members.” Camacho further argues that assuming the evidence was properly
admitted under Evidence Code section 1101, subdivision (b), which permits the
admission of prior acts evidence if it is relevant to prove a fact such as motive or intent, it
should have been excluded under Evidence Code section 352, which gives the trial court
discretion to exclude evidence if its probative value is substantially outweighed by the
danger of undue prejudice.
       Rulings regarding relevancy and the determination whether the probative value of
the evidence is substantially outweighed by the probability of undue prejudice are
reviewed under an abuse of discretion standard. (People v. Lee (2011) 51 Cal.4th 620,
643.) That standard requires this court to uphold the admission of evidence unless we
find the trial court acted arbitrarily, capriciously, or in a patently absurd manner, and the
admission of the evidence resulted in a manifest miscarriage of justice. (People v. Foss
(2007) 155 Cal.App.4th 113, 125.)
       Evidence of the July 2007 incident was relevant both to the murder and attempted
murder charges and the gang enhancements. The prosecution presented the case as a
gang crime motivated by the desire to eliminate competing gang members from the
neighborhood. Camacho’s attorney, on the other hand, defended him by claiming
Camacho had not lived in the neighborhood for years, did not know the victims had
moved into the neighborhood, was not aware until he got into Riggins’s car that Riggins
and Hernandez intended to go fight with “some Mexicans over on 73rd Street,” and had
no idea Riggins was armed, believing they were going to have a fistfight only.
       Evidence of Camacho’s gang affiliation as evidenced by his previous gang
interactions was material to the prosecution’s case because it showed the nature of
Camacho’s commitment to the gang, tended to refute Camacho’s claim that he did not
know Riggins had a gun, and that he had no motive to fight the victims. The July 2007
incident was particularly probative because, like the present case, it involved a territorial

                                              16
dispute between rival gangs. Because the prior act involved a shooting, and because after
the shooting defendant Camacho was found in a room with other gang members and a
recently fired gun, the incident was material to the prosecution’s position that Camacho
participated in a gang territorial dispute knowing that Riggins was armed.
       The prejudicial effect of the evidence was not significant. Evidence is considered
unduly prejudicial “if it tends to evoke an emotional bias against the defendant as an
individual and has a negligible bearing on the issues.” (People v. Mendoza (2011) 52
Cal.4th 1056, 1091.) Prejudicial evidence is evidence that inflames the emotions of the
jury, motivating them to reward or punish one side because of the jury’s emotional
reaction to the evidence, rather than evaluating the evidence for the point on which it was
relevant. (Ibid.) Evidence of the July 2007 incident was unlikely to inflame the passions
of the jury because unlike the present case, the July 2007 case did not result in any
deaths. Furthermore, as the trial court indicated Camacho may have been the victim in
the prior incident.
       The trial court repeatedly instructed the jury on the limited purpose for which it
could use the evidence. We presume that the jury followed these instructions. (People v.
Delgado (1993) 5 Cal.4th 312, 331.) For all of these reasons, the trial court did not abuse
its considerable discretion when it allowed admission of the July 2007 incident.
                                         III
                                   CALCRIM No. 362
       Riggins, joined by Hernandez, claims the trial court erred when it gave the
following instruction:

              “If defendant James Riggins or defendant Christopher Hernandez
       made a false or misleading statement before this trial relating to the charged
       crime, knowing the statement was false or intending to mislead, that
       conduct may show that they were aware of their guilt of the crime and you
       may consider it in determining their guilt.

             “You may not consider the statement in deciding any other
       defendant’s guilt. If you conclude the defendant James Riggins or

                                             17
       defendant Christopher Hernandez made the statement, it’s up to you to
       decide its meaning and importance.

             “However, evidence that the defendant made such a statement
       cannot prove guilt by itself.”
       The substance of their argument is that the instruction established a “permissive
presumption” of guilt. They claim that the predecessor instruction on consciousness of
guilt, CALJIC No. 2.03, “contained judicially approved language that did not create a
presumption of guilt as to mental state, but CALCRIM No. 362 no longer contains that
language.”
       CALJIC No. 2.03 stated:

       “ ‘If you find that before this trial the defendant made a willfully false or
       deliberately misleading statement concerning the crimes for which he is
       now being tried, you may consider such statements as a circumstance
       tending to prove a consciousness of guilt. However, such conduct is not
       sufficient by itself to prove guilt, and its weight and significance, if any, are
       matters for your determination.’ ” (People v. Page (2008) 44 Cal.4th 1, 49,
       fn. 23.)
       The defendant in People v. Crandell (1988) 46 Cal.3d 833 (Crandell) (overruled
on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365), like the
defendants here, argued that the instruction erroneously permitted the jury to draw an
impermissible inference without foundation concerning his mental state. (Crandell,
supra, at p. 871.) The defendant in Crandell argued that because a defendant’s guilt is
the ultimate determination of the truth or falsity of the criminal charges, the jury might
“view ‘consciousness of guilt’ as equivalent to a confession, establishing all elements of
the charged murder offenses, including premeditation and deliberation, though defendant
might be conscious only of having committed some form of unlawful homicide.” (Id. at
p. 871.)
       The Supreme Court’s response was that Crandell’s “fear that the jury might have
confused the psychological and legal meanings of ‘guilt’ is unwarranted. A reasonable
juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some


                                              18
wrongdoing’ rather than ‘consciousness of having committed the specific offense
charged.’ ” (Crandell, supra, 46 Cal.3d at p. 871.) The court concluded that the
instruction did not address the defendant’s mental state at the time of the offense and did
not compel the jury to draw any impermissible inferences with regard to the defendant’s
mental state. (Ibid.)
       CALCRIM No. 362 has replaced the phrase, “consciousness of guilt” with the
phrase, “aware[ness] of [their] guilt of the crime . . . .” Defendants argue this means that
under the new instruction the jury is effectively being told that it may consider the
defendants’ awareness of their guilt of the crime as consciousness of their legal guilt as to
the specific offense. We disagree.
       As we stated in People v. McGowan (2008) 160 Cal.App.4th 1099, 1104, the
differences between CALJIC No. 2.03 and CALCRIM No. 362 are “minor” and none of
the differences “is sufficient to undermine our Supreme Court’s approval of the language
of these instructions.” As with the instruction given in Crandall, supra, 46 Cal.3d at p.
871, the jury would not have confused the psychological and legal meanings of “guilt” of
the crime. The jury would have understood that false statements were not the equivalent
of a confession, and were not themselves sufficient to prove guilt. No error appears in
the giving of CALCRIM No. 362.
                                             IV
                        Natural and Probable Consequences Instruction
       Hernandez and Camacho claim their convictions for voluntary manslaughter and
attempted voluntary manslaughter must be reversed because the instruction on natural
and probable consequences was not supported by sufficient evidence. We disagree.
       The trial court instructed the jury that it could find Camacho and Hernandez guilty
of murder or manslaughter either because they aided and abetted the murder committed
by Riggins with the intent that Riggins commit murder or manslaughter, or because they
intended to commit the offense of disturbing the peace or simple assault, and under the


                                             19
circumstances murder or manslaughter was a natural and probable consequence of the
intended offense.
       After the jury began deliberations, the jurors sent several questions to the trial
court regarding aiding and abetting liability. First, they asked whether, if they found
Camacho and Hernandez guilty of aiding and abetting, they could find them guilty of a
lesser charge. The trial court responded with the following instruction:

              “Yes, an aider and abettor may be found guilty of a lesser included
       crime than that committed by the perpetrator.

               “However, if you find that those aiding and abetting had the same
       intent as the perpetrator when the greater crime was committed, then they
       are guilty of the same greater crime.

              “If, you find, however, that the crime committed by the perpetrator
       was not a reasonably foreseeable (natural and probable) consequence of the
       criminal act originally aided and abetted, but that a lesser included offense,
       committed by the perpetrator during the commission of the greater included
       crime, was a reasonably foreseeable consequence, you may find the aider
       and abettor guilty of that lesser included crime.

             “The Court cannot accept a verdict of guilty for any individual
       Defendant on a lesser included crime unless the jury has found that
       Defendant not guilty of the greater crime or crimes.”
       Later, in response to the above instruction, the jury asked if manslaughter was a
lesser included offense to first degree murder. This question came after the jury had
returned the verdict against Riggins. The trial court gave the following response:

       “Are you asking me, if an aider and abettor, under the natural and probable
       consequences theory, can be convicted of a lesser offense such as
       manslaughter, when the perpetrator commits 1st Degree Murder?

              “If so, the answer is yes, as long as the lesser included offense
       committed by the perpetrator, during the commission of the greater offense,
       was a reasonably foreseeable consequence.




                                             20
            “Please refer to CALCRIM 403 and specifically the elements
       numbered 1, 2, and 3. Also, please refer to CALCRIM 640 and 3517.[2]

              “If not, please re-ask your question.”
       The jury then asked, referencing their initial question, the following two questions:

       “If you go to a fight not knowing that a murder is going to occur [and] one
       does, can you be held accountable for the crime?

              “. . . Can you get to aiding [and] abetting by 401 and/or 403?”
       CALCRIM No. 401, referenced in the jury’s question, was the instruction on
aiding and abetting based on the knowledge and intent to aid and abet the perpetrator.
CALCRIM No. 403 was the instruction on natural and probable consequences.
       The trial court answered by telling the jury that it seemed to be confused as to the
different theories of aiding and abetting. The court re-read portions of CALCRIM Nos.
401 and 403. The court then explained that under CALCRIM No. 401 the perpetrator
and aider and abettor share the same intent, but under CALCRIM No. 403, the
perpetrator and aider and abettor do not share the same intent. The court instructed that
the jury could get to aiding and abetting by CALCRIM Nos. 401 and 403 because they
set out different legal theories.
       The complained-of instruction is CALCRIM No. 403, the natural and probable
consequences theory. Defendants claim the trial court should not have given this



2  CALCRIM No. 403 is the instruction on natural and probable consequences. Elements
1, 2, and 3 instructed that defendant must be guilty of disturbing the peace or simple
assault, during the commission of which Riggins committed murder and attempted
murder or a lesser included offence, and under the circumstances, a reasonable person
would have known that murder and attempted murder or any lesser included offense were
a natural and probable consequence of disturbing the peace or simple assault. CALCRIM
No. 640 informed the jury that it must find defendants not guilty of first degree murder
before determining their guilt of second degree murder, and must find them not guilty of
second degree murder before determining their guilt of voluntary or involuntary
manslaughter. CALCRIM No. 3517 instructed that the defendants could not be found
guilty of both the greater charged crime and the lesser crime.

                                            21
instruction because there was insufficient evidence to support this theory of guilt, as the
shooting did not result directly from the intended crimes of disturbing the peace or simple
assault, but from the victims’ unanticipated conduct of rushing out of their house armed
with chairs, and because there was no evidence to establish that defendants knew prior to
the shooting that Riggins had a gun.
       “The test for determining whether instructions on a particular theory of guilt are
appropriate is whether there is substantial evidence which would support conviction on
that theory. [Citation.] To determine whether there is substantial evidence to support a
conviction we must view the record in a light most favorable to conviction, resolving all
conflicts in the evidence and drawing all reasonable inferences in support of conviction.
We may conclude that there is no substantial evidence in support of conviction only if it
can be said that on the evidence presented no reasonable fact finder could find the
defendant to be guilty on the theory presented. [Citation.]” (People v. Nguyen (1993) 21
Cal.App.4th 518, 528-529.) On this record we find ample evidence for defendants’
manslaughter conviction as a natural and probable consequence of the crimes of
disturbing the peace or simple assault, motivated as they were in this case by a gang turf
war.
       Defendants’ claim that the shooting was the result of the victims’ own conduct,
and that they could not have anticipated the victims would rush out of their home armed
with a chair or chairs when confronted by defendants is not worthy of serious
consideration. As previously stated, there was evidence that the defendants were VDS
gang members, and that the victims were associated with a rival gang. There was expert
testimony that in Sacramento the Diamonds are territorial and want to control the
neighborhoods they live in. One of the past Diamond gang crimes occurred when Frank
Camacho, defendant Camacho’s cousin, drove by the Cedillo brothers’ (the victims in
this case) house and pointed a gun at them. Victor responded by throwing a rock at the
passing car, and Frank Camacho fired two shots at him.

                                             22
       Another past occurrence involved defendant Hernandez, who confronted the
victim outside the house where the victim was staying, and demanded to know what gang
the victim was from. The victim responded by starting a fistfight, and Hernandez flashed
a gun at the victim. In the earlier referenced incident involving defendant Camacho,
there was an exchange of gunfire when a car carrying gang members drove by a house.
       Past experience alone would have informed defendants that the likely result of
confronting members of a rival gang at their home would result in an aggressive response
by the rival gang members, and they should have anticipated such a response.
       Defendants’ argument that the evidence did not establish that they knew prior to
the shooting that Riggins had a gun is contrary to the record. As stated, we draw all
reasonable inferences in favor of conviction. In this case there was evidence Crystal
Picasso told police she heard Hernandez say that he “kept telling” Riggins to give him the
gun. It is reasonable to infer from this that Hernandez knew about the gun at least during
the incident. Hernandez’s statement, also relayed by Picasso to police, that he “would’ve
got all of them” is evidence from which we may infer his intent.
       Furthermore, the gang expert testified that when members intended to confront
rival gang members, a gang that had access to firearms would take a firearm to the
confrontation. VDS had access to firearms. If one person had a gun, the others were
likely to know it.
       The issue is whether under all of the circumstances “a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted by the defendant.”
(People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Defendants’ position in this
equation includes the fact that they are affiliated with a street gang and steeped in gang
culture. “When rival gangs clash . . . verbal taunting can quickly give way to physical
violence and gunfire. No one immersed in the gang culture is unaware of these realities,



                                             23
and we see no reason the courts should turn a blind eye to them.” (People v. Montes
(1999) 74 Cal.App.4th 1050, 1056.)
       The trial court did not err in giving the natural and probable consequences
instruction.
                                            V
                          Denial of Access to Juror Information
       All defendants argue the trial court abused its discretion in refusing a request to
release juror information in an attempt to support a motion for new trial based on juror
misconduct.
       Camacho’s attorney made his closing argument on August 18, 2011. The jury
returned its verdict on August 31, 2011. On October 3, 2011, approximately one and
one-half months after the fact, and a full month after the verdict was rendered, one of
Camacho’s cousins filed the declaration that was the basis of the request to release juror
information. The declaration stated that on the day Camacho’s attorney delivered his
closing argument, the cousin was having lunch at the same restaurant as three of the
jurors in the case. The declaration named the jurors by juror number. The cousin stated
that she overheard the jurors talking about Camacho’s lawyer’s closing argument. They
said, “The look on number 1’s face was priceless.” They talked about Camacho’s
lawyer’s speech, saying that it was “flowing nicely” but was “frustrating because he
stuttered at times.” The cousin stated that she did not know to whom the jurors were
referring as “number 1,” but she assumed it was her cousin. On the basis of this
declaration, Camacho claimed the jurors were engaged in misconduct because they
discussed the case outside the jury room.
       In denying the request, the trial court made the following comments:

       “[T]here was a period here of seven weeks or more between the heard
       conversation and the signing of the declaration.




                                             24
              “There was also a period of roughly two weeks after the
       conversation was heard before and during which the Court was in session.
       The jury was deliberating during which there was no disclosure of what
       was heard.

              “And then the declaration pops up three days before the time set for
       judgment and sentence. The timing sequence in the connection there of the
       declarant as a family member causes the Court pause with regard to
       accuracy and completeness.

              “But assuming that it is accurate, it’s just not the kind of conduct
       that constitutes a reasonable basis to proceed here.

              “It is arguably a technical violation not to talk about any subject
       matter or aspect of the trial, but that part which is clearly related to the trial
       concerns the manner of presentation. It is speaking style of the attorney,
       flowing nicely, stuttering at times without any substantive reference to
       content or issues or subject matter really about the case itself.

               “That part of the statement, ‘the look on number one’s face was
       priceless’, is extremely difficult, indeed, impossible to understand. The
       dominant inference because we refer to our jurors as juror number 1 and
       juror number 2 based on the seat of occupancy is that that’s a referenced
       juror, but it could reference anyone including me.

              “You just don’t know. But when you look at it as a whole, there is
       just not the kind of inference you can draw that there’s misconduct of a
       character that would improperly influence a jury verdict. [¶] . . . [¶]

              “I would note in this case because the Court has a balancing
       obligation under the Rhode’s case that this is the type of case involving
       serious gang activity, gang tension, instances where the witnesses were
       speaking in some instances with what would appear to be fear.

              “This is the type of case that the public policy of preserving the
       privacy and confidentiality of jurors and not exposing them to the possible
       future questioning or disturbance becomes a public policy matter that’s
       extremely important.”
       Defendants claim the trial court abused its discretion when it denied access to
juror information, and that such abuse of discretion deprived them of their federal Sixth
and Fourteenth Amendment right to trial by an impartial jury free of misconduct. The
claim has no merit.


                                               25
          Following the verdict in a criminal case, the defendant or his counsel may petition
the court for access to sealed personal juror identifying information, including names,
addresses, and telephone numbers, for the purpose of developing a motion for new trial or
for any other lawful purpose. (Code Civ. Proc., §§ 206, subd. (g), 237, subd. (a)(2).) The
petition must be supported by a declaration establishing good cause for the release of the
information. (Code Civ. Proc., § 237, subd. (b).) If the petition and declaration establish
a prima facie showing of good cause and there is no compelling interest against
disclosure, including protecting jurors from threats or danger of physical harm, the trial
court must set the matter for a hearing to determine whether to disclose the information.
(Ibid.)
          A prima facie showing of good cause is “a sufficient showing to support a
reasonable belief that jury misconduct occurred, that diligent efforts were made to contact
the jurors through other means, and that further investigation is necessary to provide the
court with adequate information to rule on a motion for new trial.” (People v. Rhodes
(1989) 212 Cal.App.3d 541, 551-552, superseded by statute, but still setting forth the
applicable test, as stated in People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) Even
if the petition sets forth a prima facie showing of good cause, the trial court may not set
the matter for a hearing if it finds a compelling interest against disclosure. (Code Civ.
Proc., § 237, subd. (b).)
          We review the denial of a petition under the deferential abuse of discretion
standard. (People v. Carrasco, supra, 163 Cal.App.4th 978, 991.) We find no abuse of
discretion in this case because we conclude the trial court reasonably found good cause
had not been established. As the trial court noted, assuming Camacho’s cousin’s
declaration was accurate and truthful, the violation was a technical one only. The jurors
did not discuss anything substantive about the case. The jurors’ conduct was not “ ‘of
such a character as is likely to have influenced the verdict improperly’ . . . .” (People v.
Jefflo (1998) 63 Cal.App.4th 1314, 1322, citing Evid. Code, § 1150, subd. (a).)

                                               26
Defendants’ argument that if the jurors talked about something nonsubstantive, they
might have had a more substantive discussion that was not overheard, is mere speculation
and does not rise to the level of prima facie evidence of good cause.
         Additionally, even if Camacho had made a prima facie showing of good cause, the
court acted well within its discretion in determining that there was a compelling interest
against disclosure. Code of Civil Procedure, section 237, subdivision (b) provides that
the trial court, “shall not set the matter for hearing if there is a showing on the record of
facts that establish a compelling interest against disclosure. A compelling interest
includes, but is not limited to, protecting jurors from threats or danger of physical harm.”
         As the trial court noted, the case involved serious gang activity, and the witnesses
appeared to be testifying with fear. There is evidence in the record regarding the violence
of gang culture, how gang culture permeates the community, and how gangs intimidate
non-gang members into defying the criminal justice system. In this particular case the
gang defendants went to the home of their victims and shot and killed two members of
the household. As this court stated in Rhodes, “Few would quarrel with the proposition
that the willingness of people to serve on a jury would be chilled by the knowledge that,
once deliberations are complete, a party to the action may have unlimited access to the
home address and telephone number of each juror.” (People v. Rhodes, supra, 212
Cal.App.3d at p. 548.) Thus, the release of juror information in cases such as this could
jeopardize the ability of the criminal justice system to prosecute cases involving criminal
gangs.




                                              27
       Because of the failure of defendants to establish good cause, and the compelling
interest against disclosure of juror identifying information in this case, the trial court did
not abuse its discretion in refusing to set the matter for hearing.3
                                             VI
                                      Sentencing Issues
       A. Riggins’s Sentence for Attempted Deliberate and Premeditated Murder
       The trial court sentenced Riggins to 25 years to life on count three (attempted
deliberate and premeditated murder). He argues the trial court should have imposed life
in prison with the possibility of parole. The People concede and we agree.
       Penal Code, section 664, subdivision (a) provides that the punishment for
attempted willful, deliberate, and premeditated murder is imprisonment for life with the
possibility of parole. An unauthorized sentence is subject to correction on appeal, and we
shall direct the trial court to modify the sentence on count three to life in prison with the
possibility of parole.
       B. Riggins’s Sentence Under the Gang-Enhancement Statute
       The trial court sentenced Riggins to three 15-year-to-life terms pursuant to Penal
Code, section 186.22, subdivision (b)(5). He argues the correct sentence for the
enhancement where the substantive offense carries a life sentence is a minimum parole
eligibility period of 15 years, not a separate indeterminate term. The People concede and
we agree.
       Penal Code section 186.22, subdivision (b)(5) provides that where the
enhancement is to a felony “punishable by imprisonment in the state prison for life [the
defendant] shall not be paroled until a minimum of 15 calendar years have been served.”




3 We reject defendants’ argument that reversal is required because of cumulative
prejudice from the collective errors because there is no predicate error relating to the
determination of defendants’ guilt on which to base such a claim.

                                              28
People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486, held that this language was “clear
and unambiguous” and that the “enhancement is not an additional determinate term, but
an extended parole eligibility date.”
       We shall order the sentence modified accordingly.
       C. Sentence for Count Three Gang Enhancement
       Hernandez and Camacho argue the trial court erred when it imposed a three-year
four-month sentence on the gang enhancement to count three, attempted voluntary
manslaughter. The People concede and we agree. The trial court imposed sentence on
the gang enhancement for count three as if the underlying crime, attempted voluntary
manslaughter, were a violent felony, but it is merely a serious felony for purposes of the
gang enhancement.
       Penal Code section 186.22, subdivisions (b)(1)(B) and (b)(1)(C) provide that the
additional term for a serious felony is five years and the additional term for a violent
felony is 10 years. The trial court imposed an additional term of three years and four
months (one-third of 10 years) on the gang enhancement to count three.
       Attempted voluntary manslaughter is not a violent felony as defined in subdivision
(c) of Penal Code section 667.5. It is, however, a serious felony pursuant to subdivisions
(c)(1) and (c)(39) of Penal Code section 1192.7. The trial court should have imposed a
one-year and eight-month sentence (one-third of 5 years). We shall order the sentence
modified accordingly.
       D. Court Aware of Discretion to Strike Gang Enhancement
       Camacho, joined by Hernandez, argues the case must be remanded for
resentencing because the trial court imposed punishment for the street gang enhancement
based on the erroneous belief the enhanced punishment was mandatory.
       Defendants’ argument is based on language the trial court used when it imposed
sentence. In sentencing Camacho and Hernandez, the trial court began with the
following comments regarding their gang involvement:

                                             29
              “Fundamentally the weight of the evidence here is it was stated
       understood they were going to beat up some Surenos. They went to this
       house in the middle of the night where Surenos lived.

              “. . . There’s ample evidence of extensive gang involvement and
       expert opinion rendered that in that context gang members customarily
       know about the presence of a firearm and would have a firearm present
       when undertaking such tasks . . . .

              “Their juvenile record is surprisingly similar in a way. They both
       show not just a history of conduct and criminal conduct, but criminal
       conduct involving gangs. Both were on probation at the time that this
       incident occurred. Both had sustained juvenile petitions of crimes that were
       violent in form, particularly, as you look at the evidence as it was adduced
       here.”
       As to the gang enhancement on count one, the trial court ruled: “As to the 186.22
[subdivision] (b)(1) allegation, which was found true, the defendants’ sentence is
enhanced by a separate consecutive term of ten years as mandated.” (Italics added.) As
to the gang enhancement on count two, the trial court ruled: “As to the section 186.22
[subdivision] (b)(1) allegation, which was found true, the defendants, this is as to both
defendants, is enhanced by a separate consecutive term of three years four months as
mandated for a total as to this count of five years four months.” (Italics added.) As to
the gang enhancement on count three (attempted murder) the trial court ruled: “as to the
186.22 [subdivision] (b)(1) allegations which are true, found true, the defendants are
sentenced to a separate consecutive term of three years four months for a total of four
years four months.”
       The trial court may strike the additional punishment for the street gang
enhancement “in an unusual case where the interests of justice would best be
served . . . .” (Pen. Code, § 186.22, subd. (g).) The trial court’s discretion to strike the
gang enhancement is abused where the court was not aware of its discretion, because an
erroneous understanding of its discretionary power is not a true exercise of discretion.
(People v. Marquez (1983) 143 Cal.App.3d 797, 803.)



                                              30
       However, we presume that the trial court was aware of and followed the applicable
law, and this presumption extends to judicial exercises of discretion in sentencing.
(People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Error must be affirmatively shown.
(Ibid.) Defendants’ affirmative showing of error is limited to the trial court’s use of the
phrase “as mandated” when imposing the sentence enhancement.
       In this context, we conclude the phrase “as mandated” referred to the length of the
enhanced term, rather than the imposition of the enhanced term. The trial court’s
language was taken verbatim from the probation report, which stated: “As to the Section
186.22 [subdivision] (b)(1) [Penal Code] allegation, which was found true, it is
recommended the defendant’s sentence be enhanced by a separate, consecutive term of
ten (10) years as mandated.” Had the probation report intended to convey that a term of
enhancement was mandatory, it would not have “recommended” the enhancement, but
stated that the enhanced term was mandatory. Instead, the language of the probation
report was intended to convey that if the trial court accepted its “recommendation” to
impose the enhancement, the mandated term was 10 years.
       Our understanding of the trial court’s phrasing is further reinforced by the fact that
Camacho’s trial counsel filed a statement in mitigation, in which he requested that the
gang enhancements be stayed. This would have alerted the trial court that it had a choice
in imposing the sentence. It nevertheless imposed the gang enhancement. In so doing,
the trial court stressed that the nature of the crime was a gang crime, and that both
Camacho and Hernandez had a history of criminal gang conduct.
       We conclude the trial court was aware of its discretion to strike the gang
enhancement, and did not abuse its discretion when it imposed the enhancement.
                                            VII
                               Challenge to Fees is Forfeited
       Riggins, joined by Camacho and Hernandez, argue the trial court erred when it
imposed jail booking and classification fees because there was insufficient evidence of


                                             31
ability to pay and the administrative cost of the fees. Because none of the defendants
raised this issue below, it is forfeited.
       The trial court imposed a main jail booking fee and a main jail classification fee
pursuant to Government Code section 29550.2 on each defendant. Government Code
section 29550.2 provides for payment of such fees in an amount not to exceed the actual
administrative costs if the defendant has the ability to pay.
       Defendants claim the argument is cognizable on appeal despite the failure to
object to the fees below because the challenge is to the sufficiency of the evidence to
support the judgment. Subsequent to the completion of briefing in this case, the Supreme
Court decided People v. McCullough (2013) 56 Cal.4th 589, which held “that a defendant
who fails to contest the booking fee when the court imposes it forfeits the right to
challenge it on appeal.” (Id. at p. 591.) Accordingly, defendants forfeited the claim
when they failed to object to the imposition of the fees below.
                                          VIII
                    Multiple Murder Special Circumstance as to Riggins
       In counts one and two, Riggins was charged and found guilty of first degree
murder with a multiple murder special circumstance finding pursuant to Penal Code
section 190.2 subdivision (a)(3). Defendant is correct that only one murder special
circumstance should have been alleged and found true. (People v. Halvorsen (2007) 42
Cal.4th 379, 422.) The remedy is to strike the superfluous finding. (Ibid.)
                                        DISPOSITION
       We remand the matter to the trial court with directions to: (1) modify Riggins’s
sentence on count three (attempted willful, deliberate, and premeditated murder), to life
in prison with the possibility of parole; (2) strike the terms imposed against Riggins
pursuant to Penal Code section 186.22, subdivision (b)(5) and note a 15-year minimum
parole eligibility date for each of the Penal Code section 186.22, subdivision (b)(5)
enhancements; (3) vacate one of Riggins’s two multiple-murder special-circumstance


                                             32
findings; (4) modify the count three gang enhancement as to Camacho and Hernandez
from three years and four months to one year and eight months; and (5) forward copies of
the amended abstracts to the Department of Corrections and Rehabilitation. In all other
respects the judgment is affirmed.



                                            BLEASE                  , Acting P. J.


We concur:


         HULL                        , J.


         MAURO                       , J.




                                            33
