Filed 7/14/15 P. v. Vargas CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR



THE PEOPLE,                                                           B252948

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA401305)
         v.

CARLOS VARGAS et al.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Affirmed.
         Allison H. Ting, under appointment by the Court of Appeal, for Defendant
and Appellant, Carlos Vargas.
         Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant, Adrian Barajas.
         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant, Joseph A. Pacheco.
         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant
and Appellant, Douglas Cornejo.
      Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
               ___________________________________________


                                INTRODUCTION
      Appellants Carlos Vargas, Adrian Barajas, Joseph A. Pacheco, and Douglas
Cornejo appeal from judgments and sentences following their convictions for
kidnapping and attempted murder. They contend the trial court erred in admitting
the preliminary hearing testimony of the victim, on the grounds (1) that the
prosecution violated its obligations under Brady v. Maryland (1963) 373 U.S. 83
(Brady) by failing to disclose impeachment evidence until after the preliminary
hearing, and (2) that the admission of the preliminary hearing testimony violated
their rights to confront and cross-examine the witness. They also contend the trial
court erred in denying a defense request for a delayed discovery instruction.
Cornejo separately contends that the trial court abused its discretion in excluding
two exculpatory statements on the basis of hearsay. Finally, Cornejo and Pacheco
contend there was insufficient evidence to support certain convictions and
sentencing enhancements. Finding no reversible error, we affirm.


                           PROCEDURAL HISTORY
      Appellants were each charged in an amended information with attempted
willful, deliberate, and premeditated murder of Valentin Anaya (Pen. Code,




                                          2
                                 1
§§ 664/187, subd. (a); count 1), and kidnapping Anaya (§ 207, subd. (a); count 3).
As part of a separate incident, Cornejo was charged with having a concealed
firearm on his person (§ 25400, subd. (a)(2); count 7). It was alleged the offenses
were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). It was further alleged that Vargas personally and intentionally
discharged a firearm which caused great bodily injury (§ 12022.53, subds. (b), (c),
& (d)); that a principal personally and intentionally discharged a firearm (§
12022.53, subds. (b), (c), (d) & (e)(1)); and that Cornejo personally used a firearm
(§ 12022.53, subd. (b)).
      Pacheco and Vargas were also charged with possession of a firearm by a
felon (§ 29800, subd. (a)(1); counts 5 & 9). Vargas was alleged to have suffered
one prior conviction within the meaning of the “Three Strikes Law” (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior convictions for which he
served a term in state prison (§ 667.5, subd. (b)). Finally, Pacheco was alleged to
have suffered two prior convictions for which he served a prison term (§ 667.5,
subd. (b)).
      A jury found appellants guilty as charged, and found true the firearm and
gang allegations. Vargas admitted the prior strike allegation and serving two prior
prison terms. Pacheco admitted one prior prison term, and the court struck the
other prior.
      The trial court sentenced Vargas to a total term of 68 years to life in state
prison; Barajas to a total term of 32 years to life; Cornejo to a total term of 39
years to life; and Pacheco to a total term of 36 years to life.
      Appellants each filed a notice of appeal.


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

                                           3
                           FACTUAL BACKGROUND
A.    The Prosecution Case
      According to the prosecution, appellants were members of the Rockwood
criminal street gang. After obtaining information leading them to believe that a
fellow gang member, Anaya, was an informant for law enforcement, appellants
kidnapped Anaya, took him to an alley, and shot him in the head. Anaya survived
the shooting, and subsequently identified appellants as his assailants.
      1.     Anaya’s Preliminary Hearing Testimony
      Trial proceedings started August 30, 2013. After Anaya invoked his Fifth
Amendment rights and declined to testify at trial, the trial court declared him
unavailable. His October 16, 2012 preliminary hearing testimony was then read
into the record. The testimony was as follows:
      In 2012, Anaya had been a member of the Rockwood gang for several years.
                                        2
Appellants were fellow gang members. On July 28, at about 8:00 p.m., Anaya
went to Vargas’s apartment to collect the money Vargas owed him for drugs.
Appellants were the only occupants. Anaya had two or three guns on him. In
exchange for $100, he gave appellants one of the guns -- a .357-caliber revolver.
      When Anaya went to the bathroom, he left his cell phone in the apartment to
charge. Vargas took Anaya’s cell phone and looked through the contacts. Among
the contacts was a sheriff deputy’s number. Anaya had stored the deputy’s phone
number on his phone after the deputy had approached him in May 2012 to ask him
some questions. At the preliminary hearing, Anaya admitted calling the deputy,
but denied agreeing to work for him.


2
     Anaya did not know appellants’ real names, but knew their gang monikers:
Vargas was “Tico,” Barajas was “Chubbs,” Cornejo was “Little Man,” and
Pacheco was “Stomper.”

                                            4
      When Anaya came out of the bathroom, Vargas told him to go back inside.
Cornejo, who was armed with a gun, told Anaya to stay in the bathroom and
locked him inside. After about an hour, Vargas entered and asked Anaya, “Who
are you working for?” Anaya replied, “What? What are you talking about?”
Vargas repeated: “Who are you working for?” He then said, “You fucked up,”
and stepped outside. Barajas entered, told Anaya that he had “fucked up,” and
struck him in the face. Cornejo and Pacheco then entered the bathroom separately
and struck Anaya in the face.
      Barajas came back and told Anaya to get in the tub. Vargas and Pacheco
then entered. Vargas had the .357 gun and Pacheco was armed with a .45-caliber
handgun. Vargas then injected Anaya with methamphetamine. Vargas tied
Anaya’s hands behind his back with shoelaces, placed a hooded sweatshirt over his
head, and led him out of the apartment to a green truck parked outside. Vargas,
Cornejo, and Anaya got into the truck. Anaya could not see the driver. Pacheco,
who was wearing a Global Positioning System (GPS) tracking device as a
                                                    3
condition of parole, stayed behind in the apartment. Anaya did not know
Barajas’s location. When shown still pictures from a video surveillance of the
building taken at the time, Anaya identified the men in the picture as Vargas,
Pacheco, and Barajas.
      After about an hour, the truck stopped near an alley. Cornejo exited, and
Vargas pulled Anaya out of the vehicle. Vargas ordered Anaya to go to a corner of
the alley, but Anaya started to run away. Vargas took out the .357 handgun and
shot Anaya in the head. The bullet entered the left side of Anaya’s head and exited
the top. Cornejo took out his gun and attempted to shoot Anaya, but the gun

3
      The location data from Pacheco’s tracking device showed he entered the
apartment at 7:05 p.m., and remained there until 6:39 a.m. the next morning.

                                         5
jammed. Anaya fell to the ground and pretended to be dead. Vargas said, “He’s
gone.” Vargas and Cornejo then re-entered the truck. Anaya, afraid the truck
would run him over, got up to run away. The truck driver tried to run him down.
The side of the truck’s bumper struck Anaya, sending him flying into a trash can.
Anaya got up and started running. He heard several gunshots and dropped to the
ground. The truck drove away. Anaya went to a store and called 911 at 4:52 a.m.
He was taken to a hospital, treated, and released.
      Anaya was questioned by police officers, but he provided them with
“different stories so I could just get them off my back.” After Anaya was released
from the hospital, he agreed to speak with Los Angeles Police Detective Carlos
Carias. Detective Carias interviewed Anaya at the police station, and showed him
photographs in a Rockwood gang photobook. Anaya identified Vargas’s
photograph and wrote: “This individual was the one who shot me in the head,
number 3. Tico [Vargas] is the one who tied me down and escorted me to the
vehicle. I was told by him to get on the floor. Once arriving . . . at the alley, I was
dragged out and shot by Tico.” He also identified photographs of Pacheco and
Cornejo, writing: “Stomper [Pacheco] number 210, Little Man [Cornejo] number
211 were involved in the crime of laying hands on me before I got shot in the head.
I received a few blows from these individuals and had a gun pointing at my head.
Little Man got -- Little Man’s gun got jammed in the alley. So that’s why I only
got one shot in the head by Tico.”
      On August 4, 2012, Anaya identified Barajas’s photograph and wrote: “This
individual in photo six I know him as Chubbs from Rockwood for several years.
Chubbs took me with Tico. And I got beat up. Later that night I was shot in the
alley. Chubbs was the first one who said I fucked [up].”
      Anaya also identified appellants as his assailants at the preliminary hearing.


                                           6
       2.    Other Trial Testimony
       At the trial, Los Angeles Police Officer John Boverie testified that at
approximately 4:55 a.m. on July 28, he responded to a call of a shooting. Arriving
at the scene, he observed Anaya sitting on a chair, holding a towel to his head.
Anaya had a gunshot wound to the left portion of his head and a shoe string tied to
his right wrist. He did not respond to Officer Boverie’s inquiries about who had
shot him. The paramedics then arrived and took Anaya to the hospital.
       Los Angeles Police Officer Ramon Gracia testified that he also responded to
Anaya’s 911 call. When he arrived, he observed a male Hispanic bleeding
profusely from his head. When questioned, Anaya was uncooperative and
provided inconsistent explanations for his injuries. When Anaya was taken to the
hospital, Officer Gracia followed and interviewed him at the hospital. After
providing several versions of the events, Anaya told Officer Gracia that he would
tell him the truth. Anaya stated that he had gone with some of his “homies” to
purchase beer. After they purchased the beer, they began driving to a different
location. While in the car, one of his homies punched him and another
overpowered him and tied his hands behind his back. The car eventually stopped
at an alley, and one of his homies grabbed him and started to drag him into the
alley. Another homie then drew a .357 and shot him. Anaya fell to the ground and
pretended to be dead. After the men left him, he got up and began to run. As he
was running, the car struck him. Anaya told Officer Gracia that he was an active
gang member, and that he thought he was shot because his homies thought he was
a “rat.”
       Detective Carias testified that he was assigned to investigate the shooting.
He was informed that the victim had been checked into a hospital, and that the
victim had identified himself as Rogelio Garcia. After determining that the


                                          7
victim’s real name was Valentin Anaya, the detective interviewed Anaya at the
police station. In addition to identifying appellants as his assailants, Anaya also
provided information about the location of the shooting.
      Detective Carias also testified that at one point, Anaya said he did not know
the name of the driver of the green truck. At another point, Anaya said he knew
the name of the driver, but would say only that the driver was a Rockwood gang
member. Anaya also told the detective that as he was being taken from Vargas’s
apartment to the truck, he saw a Rockwood gang member by the name of
“Cricket.”
      After Anaya told Detective Carias that he was afraid for his safety and for
his family’s safety, the detective moved Anaya and his family to a “safe house.”
Detective Carias paid for the motel directly with emergency funds, and he gave
Anaya additional money for food. In order to receive the money, Anaya signed a
form stating that he would not commit any crimes. Detective Carias testified that
he gave Anaya $60 in cash on July 29, and $40 on July 30. On August 16th and
September 16th, the detective gave Anaya $350 for food. On October 16th, he
gave Anaya $350 for food and $300 for incidentals. On December 4th, he gave
Anaya $1100 for food and $225 for incidentals. Finally, on January 4, 2013, he
gave Anaya $1100 for food. The food allowance was for both Anaya and his
family. In total, including the housing assistance, $7,750 was provided to Anaya
and his family.
      After Detective Carias interviewed Anaya, he visited Vargas’s apartment
building and looked at surveillance video taken at the time of the incident. The
detective used his cell phone to capture the surveillance video and to take still
photographs of the video. On August 8, Detective Carias showed the surveillance




                                          8
video to Los Angeles Police Detective Antonio Hernandez. Detective Hernandez
recognized Vargas in the video from prior contacts with him.
         The next day, while driving around Rockwood gang territory looking for the
shooting suspects, Detective Hernandez and his partner, Officer Philip Zalba, saw
Vargas. Vargas saw the officers and ran away, eventually entering a swap meet or
flea market. When Vargas exited the business, Detective Hernandez was waiting
outside and apprehended him. The detective searched Vargas, and found a small
bag of ammunition on his person, containing fifteen .357-caliber bullets. Inside a
hole in the wall of the flea market, police officers recovered a loaded .357 revolver.
         Immediately after Vargas was arrested, Detective Hernandez learned that
Barajas was next door, inside a cell phone store. The officers arrested Barajas
there.
         Pacheco and Cornejo were arrested the following weeks. On August 14th,
Los Angeles Police Officer Arthur Meza observed Pacheco and noticed he was
wearing a GPS tracking device, indicating he was on parole. Officer Meza and his
partner approached Pacheco to initiate a parole search. As the officers approached,
Pacheco placed one of his arms into his waistband, and grabbed a woman, placing
her between himself and the officers. Pacheco said, “I don’t want to do this.” The
officers ordered him to let the woman go, but Pacheco refused. The officers
sprayed Pacheco with pepper spray, but Pacheco attempted to hide his face in the
woman’s hair. Officer Meza’s partner then tackled Pacheco and took him to the
ground. As he fell, Pacheco released the woman. He resisted for about 15
seconds. After he was handcuffed, Pacheco indicated he was in possession of a
firearm. The officers recovered a loaded .45-caliber semiautomatic handgun from
Pacheco’s front waistband.




                                          9
      On August 22, Detective Hernandez saw Cornejo walking in Rockwood
gang territory. When Cornejo noticed the officer, he ran away in the opposite
direction. As he was being chased, Cornejo threw a revolver over his head.
Cornejo was apprehended after tripping on the stairs. The handgun was recovered;
it was a Smith and Wesson chrome .22-caliber revolver, loaded with six bullets.
      Los Angeles Police Officer Michael Chang testified he interviewed Cornejo
                                                    4
after his arrest. After waiving his Miranda rights, Cornejo told the officer that he
had stolen the .22-caliber handgun from another Rockwood gang member, whom
he did not like. He had taken it from “some bushes.” Cornejo stated that he
needed the handgun for protection because he had been “jumped out of Rockwood
Street [gang] and . . . had been in a fight in juvenile hall with some juvenile.”
      In February 2013, Anaya was arrested for possession of an assault rifle. He
told Officer Joseph Villagran that he had purchased the rifle for protection against
the Sinaloa Cartel. He explained that he had lost a pound of methamphetamine
belonging to the Sinaloa Cartel, and that a “hit” had been placed on him. Several
days later, Officer Bobby Romo interviewed Anaya. During this interview, Anaya
provided a different explanation for his possession of the rifle. Anaya said that in
July 2012, his fellow gang members had tried to kill him because they believed he
was a “rat.” He stated: “I bought myself a gun for protection after I was shot in
the head by former gang members.”
      Detective Hernandez testified as the prosecution gang expert. Detective
Hernandez personally knew Vargas, Pacheco, and Cornejo to be members of the
Rockwood gang; they had admitted to him that they were gang members. Vargas
was known by the gang moniker, “Tico” or “Tiko.” Pacheco was known by the
gang monikers, “Stomper” and “Thumper.” Cornejo was known by the gang
4
      Miranda v. Arizona (1966) 384 U.S. 436.

                                          10
monikers, “Clash” and “Baby Tiny.” Although Detective Hernandez never had
any personal contact with Barajas, Detective Hernandez opined that Barajas was a
Rockwood gang member based on his gang tattoos and Anaya’s statements.
      Given a hypothetical fact pattern based on the facts of this case, Detective
Hernandez opined that the kidnapping and attempted murder of a suspected gang
informant was committed for the benefit of and in association with the Rockwood
criminal street gang. The assailants were all gang members from the same gang,
and the crimes would benefit the gang because they would discourage other gang
members from working with law enforcement. Detective Hernandez also opined
that when Cornejo was arrested on August 22, he possessed the .22-caliber
handgun for the benefit of a criminal street gang, because having a gang member
with a gun in gang territory would allow the gang to protect its territory from rival
gangs. The detective also explained that a gang would have easily accessible and
hidden places to store guns -- such as a bush -- for gang members to use. He also
opined that only gang members would know these locations.
B.    The Defense Case
      Appellants did not testify. Dr. Mitchell Eisen, a psychologist, testified on
behalf of Cornejo. Dr. Eisen testified about possible flaws in a witness’s
identification of suspects due to factors such as traumatic stress.


                                   DISCUSSION
      Appellants contend they were denied a fair trial because (1) the prosecution
committed various Brady violations; (2) they were denied their right to confront
and cross-examine Anaya about witness relocation assistance and his fear of the
Sinaloa drug cartel; and (3) the trial court erred in denying their request for an
instruction on the delayed disclosure of Brady evidence.


                                          11
      Pacheco separately contends there was insufficient evidence to support the
jury’s finding that he aided and abetted in the kidnapping and attempted murder of
Anaya. Cornejo separately contends there was insufficient evidence to support the
jury’s findings that he stole the .22 handgun from a Rockwood gang member and
at the same time that he possessed the handgun to benefit the Rockwood gang.
Cornejo also contends that the trial court abused its discretion by excluding two
hearsay statements of Anaya that he saw another gang member -- with the moniker
Cricket -- when he was being kidnapped.


A.    Purported Brady Violations
      Suppression of favorable evidence that is material, either to guilt or
punishment, violates due process. (Brady, supra, 373 U.S. at p. 87; accord,
Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Evidence is “favorable” to the
defense “if it helps the defense or hurts the prosecution, [such] as by impeaching a
prosecution witness.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132,
overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) “Evidence is material if there is a reasonable probability its disclosure
would have altered the trial result.” (People v. Zambrano, supra, at p. 1132.) No
Brady violation occurs if the previously suppressed evidence is presented at trial.
(People v. Verdugo (2010) 50 Cal.4th 263, 281.)
      The prosecution’s Brady obligation extends to the preliminary stage of
criminal proceedings. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 348.)
However, for preliminary hearings, “the standard of materiality is whether there is
a reasonable probability that disclosure of the exculpatory or impeaching evidence
would have altered the magistrate’s probable cause determination with respect to
any charge or allegation.” (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th


                                          12
1074, 1087.) “In addition, . . . the duty of prepreliminary hearing disclosure
extends only to matters within the possession or control of the prosecution team
before the conclusion of the preliminary hearing.” (Ibid.) “We independently
review the question whether a Brady violation has occurred, but give great weight
to any trial court findings of fact that are supported by substantial evidence.”
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)


      1.     Witness Relocation Assistance
      Appellants contend the prosecution violated Brady when it failed to disclose
that Anaya had received witness relocation assistance until after the preliminary
hearing.
             a.     Relevant Factual Background
      After the October 16, 2012 preliminary hearing but before trial, defense
counsel were informed that Anaya had received relocation assistance. The
prosecution did not provide the actual documentation of the assistance until after
Anaya’s prior testimony had been read to the jury. After reviewing the
documentation, the trial court concluded that “the only thing that is relevant and
the only thing that’s potentially exculpatory or otherwise relevant is an itemization
of how much was paid.” The court ordered the prosecutor to turn over to the
defense a copy of the documents under seal and an itemization of the amounts and
                                      5
dates of the relocation assistance.



5
      Appellants have requested that this court independently review the sealed
exhibits for any exculpatory or impeachment evidence. Although the sealed
exhibits could not be located, the record indicates that defense counsel received a
copy of “exactly what the [trial] court reviewed.” The prosecution and defense
counsel then redacted the exhibits to provide them to the jury.

                                          13
      When the documents were provided to defense counsel, Vargas’s counsel
asked whether Anaya had signed any documents, either to receive the money or to
work as an informant. The prosecutor responded that Anaya had to sign an
agreement to receive the money, but that he was unaware of any agreement
showing Anaya was an informant for any law enforcement agency. Defense
counsel asked the court to review the signed agreement, and suggested that the
agreement may have required Anaya to commit no further crimes. The court
agreed, but stated its belief that an agreement to commit no further crimes would
not be exculpatory.
      As detailed above, defense counsel elicited trial testimony from Detective
Carias about the relocation assistance provided to Anaya. Specifically, Detective
Carias testified that Anaya signed a document agreeing to commit no further
crimes in exchange for the assistance, and that a total amount of $7,750 was
provided to Anaya and his family. In addition, during closing, Vargas’s counsel
argued that although Anaya may have been a trustworthy witness because he was
afraid of his fellow gang members, “[i]t’s just as likely he was a con man and knew
the system, and tried to rip the system off of $8,000.”
             b.       Analysis
      In order to demonstrate that the prosecution violated its Brady obligations,
appellants must show a suppression of evidence that was both favorable and
material. Here, it is unclear whether evidence of witness relocation assistance is
favorable. (Compare United States v. Davis (5th Cir. 2010) 609 F.3d 663, 696
[information that witness was offered witness protection not favorable to defendant
because jury may have assumed that witness needed protection from defendant]
with United States v. Talley (6th Cir. 1999) 164 F.3d 989, 1003 [noting that
relocation benefit for key government’s witness should be disclosed as


                                         14
impeachment evidence].) Even assuming that evidence that Anaya received
relocation assistance constituted impeachment evidence, appellants have failed to
show that the evidence was material, or that it was suppressed at trial.
      As discussed above, for preliminary hearings, evidence is material if “there
is a reasonable probability that disclosure of the exculpatory or impeaching
evidence would have altered the magistrate’s probable cause determination with
respect to any charge or allegation.” (Bridgeforth v. Superior Court, supra,
214 Cal.App.4th at p. 1087.) Here, it is undisputed that Anaya was shot in the
head. He identified appellants as his assailants to Detective Carias, and the record
shows that his identification was made before any offer of assistance. In addition,
Vargas, Pacheco, and Barajas were identified from still photographs taken from
video surveillance at the time of the incident. Finally, the relocation assistance was
not offered in exchange for testimony and was not dependent on Anaya’s testifying
at trial. (Cf. People v. Westmoreland (1976) 58 Cal.App.3d 32, 44-46 [leniency
offered in exchange for testimony].) In short, appellants have not shown there was
a reasonable probability that the evidence of witness relocation assistance would
have altered the magistrate’s probable cause determination. Thus, no Brady
violation occurred at the preliminary hearing stage.
      Similarly, appellants have not shown a Brady violation at the trial stage.
There was no suppression of evidence because the jury heard about the relocation
assistance provided to Anaya. (See People v. Verdugo, supra, 50 Cal.4th at p. 281
[“‘[E]vidence that is presented at trial is not considered suppressed, regardless of
whether or not it had previously been disclosed during discovery.’ [Citation.]”].)
After considering the evidence, the jury found Anaya’s identification of appellants
credible and convicted them. On this record, appellants cannot show a Brady
violation.


                                          15
      2.      Anaya’s Statements to Detective Carias About Gang Member
“Cricket”
      At trial, Detective Carias testified that Anaya told him he knew the driver of
the green truck, but would not disclose any information about the driver other than
the fact that he was a Rockwood gang member. Anaya also told the detective that
when he was being taken to the truck, he saw a Rockwood gang member named
Cricket. Barajas contends the failure to disclose the transcript of this interview
prior to the preliminary hearing was a violation of the prosecution’s obligations
under Brady. We disagree.
      First, as appellant Barajas concedes, trial counsel failed to object to the late
disclosure of the transcript on Brady grounds. Thus, this argument has been
forfeited. (People v. McPeters (1992) 2 Cal.4th 1148, 1174.) Even were we to
consider this issue, we would find no Brady violation. As appellant’s counsel
admitted in the trial court, prior to the preliminary hearing, he had a copy of the
recording of the interview, although “a lot of it was in Spanish, translations
pending.” Moreover, appellant’s counsel had a copy of the transcript at the
preliminary hearing. Although counsel asserted he did not have the opportunity or
time to read the entire interview transcript, he never requested a continuance. In
addition, at trial, Vargas’s counsel elicited testimony about Cricket from Detective
Carias, and in closing argument suggested the police should have investigated
whether Cricket had been involved in the crimes. On this record, appellant Barajas
has not shown that evidence of Anaya’s statements about Cricket was suppressed
by the prosecution, either at the preliminary hearing stage or at trial. Thus, he has
failed to demonstrate a Brady violation. (See People v. Verdugo, supra, 50 Cal.4th
at p. 281.)




                                          16
B.     Whether Admission of the Preliminary Hearing Testimony Violated the
Confrontation Clause.
       “A criminal defendant has a constitutionally guaranteed right to confront and
cross-examine the witnesses against him or her. [Citations.] The right of
confrontation is not absolute, however, and may ‘in appropriate cases’ bow to
other legitimate interests in the criminal trial process. [Citations.] An exception to
the confrontation requirement exists where the witness is unavailable, has given
testimony at a previous judicial proceeding against the same defendant, and was
subject to cross-examination by that defendant. [Citations.] Further, the federal
Constitution guarantees an opportunity for effective cross-examination, not a
cross-examination that is as effective as a defendant might prefer. [Citation.]”
(People v. Carter (2005) 36 Cal.4th 1114, 1172.) This exception is codified in the
California Evidence Code at section 1291. Section 1291 provides, in relevant part,
that “[e]vidence of former testimony is not made inadmissible by the hearsay rule
if the declarant is unavailable as a witness and . . . [¶] . . . [¶] [t]he party against
whom the former testimony is offered was a party to the action or proceeding in
which the testimony was given and had the right and opportunity to cross-examine
the declarant with an interest and motive similar to that which he has at the
hearing.” When the requirements of Evidence Code section 1291 are met, “the
preliminary hearing testimony of an unavailable witness may be admitted at trial
without violating a defendant’s confrontation right.” (People v. Herrera (2010)
49 Cal.4th 613, 621.)
       Appellants contend the admission of Anaya’s preliminary hearing testimony
violated their constitutional right to confront him, because they did not have an
adequate opportunity to cross-examine him about (a) the witness relocation




                                             17
assistance, (b) his statements relating to Cricket, and (c) his fear of the Sinaloa
drug cartel. We conclude there was no reversible error.
      Here, the requirements of Evidence Code section 1291 were met. Anaya
was unavailable to testify at trial because he invoked his Fifth Amendment right to
remain silent. Anaya was cross-examined by appellants’ counsel at the
preliminary hearing, including on his identification of appellants as his assailants.
Appellants’ interest and motive in cross-examining Anaya at the preliminary
hearing were closely similar, if not identical to, their objectives at trial -- namely,
to attempt to discredit the prosecution’s theory that they kidnapped and attempted
to kill Anaya. (See People v. Carter, supra, 36 Cal.4th at p. 1172 [defendant’s
interest and motive in cross-examining adverse witness -- to discredit prosecution’s
theory of the case -- were sufficiently similar at the preliminary hearing and at trial
to satisfy requirements of Evidence Code section 1291].)
      Appellants’ inability to cross-examine Anaya about witness relocation
assistance at the preliminary hearing did not render their cross-examination
constitutionally inadequate. Anaya identified appellants as his assailants prior to
any offer of relocation assistance. Additionally, at trial, appellants were able to
cross-examine Detective Carias about his payments to Anaya as part of the witness
relocation program. Thus, the jury was able to consider the relocation assistance in
determining Anaya’s credibility. On this record, they failed to demonstrate any
confrontation clause violation.
      As to Anaya’s statements relating to Cricket, appellant Barajas has failed to
demonstrate that he lacked an adequate opportunity to cross-examine Anaya about
those statements. As detailed above, Barajas’s counsel had a copy of the recording
of the interview before the preliminary hearing and a copy of the interview
transcript at the preliminary hearing. Thus, he had an opportunity to cross-


                                           18
examine Anaya about the statements he had made relating to Cricket in that
interview. As Barajas’s counsel had the opportunity for cross-examination, the
admission of the preliminary testimony under Evidence Code section 1291 did not
violate the confrontation clause. (People v. Carter, supra, 36 Cal.4th at pp. 1172
& 1174 [confrontation clause guarantees an opportunity for cross-examination, not
a particular form of cross-examination].) Moreover, the jury heard about the
presence of Cricket outside the apartment on the night Anaya was shot, and was
urged in closing argument to consider whether Cricket may have been involved.
On this record, Barajas has failed to demonstrate a confrontation clause violation.
      As to Anaya’s fear of the Sinaloa drug cartel, his statements concerning the
drug cartel were made on February 15, 2013, four months after the preliminary
hearing. Those statements were not inconsistent with any of Anaya’s statements at
the preliminary hearing. Moreover, the statements were presented to the jury
through the trial testimony of Officer Villagran. In short, the admission of Anaya’s
                                                                                6
preliminary hearing testimony did not violate appellants’ confrontation rights.


6
        Appellants also contend they received ineffective assistance of counsel when
trial counsel failed to move to strike Anaya’s preliminary testimony on the basis
that the prosecution had violated Brady and the confrontation clause. In order to
prevail on a claim of ineffective assistance of counsel, appellant must show (1) that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) that there is a reasonable probability that but
for counsel’s unprofessional errors, the result would have been more favorable to
the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v.
Gray (2005) 37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-
520.) We conclude that appellants have failed to show either prong. First,
Barajas’s counsel objected to the admission of Anaya’s preliminary testimony on
the ground his client’s right to confront and cross-examine Anaya during the
hearing was “hampered,” and Vargas’s counsel made a Brady objection. In light
of these evidentiary objections, other trial counsel need not raise the same
objections on behalf of their clients. When the trial court overruled the objections,

                                         19
C.    Jury Instruction on Delayed Disclosure of Evidence
      Appellants next contend the trial court abused its discretion in denying a
defense request to instruct the jury with CALCRIM No. 306, as a sanction for the
prosecution’s failure to disclose the witness relocation assistance. CALCRIM No.
306 generally informs the jury that a party has failed to disclose relevant evidence,
that the failure may deny the other side an opportunity to receive a fair trial, and
that the late disclosure may be considered when evaluating the evidence. The trial
court denied the request on the ground that evidence of the relocation assistance
had been presented to the jury. We discern no abuse of discretion.
      As discussed, the prosecution has an obligation under Brady to disclose
favorable evidence. In addition, “[s]ection 1054.1 (the reciprocal-discovery
statute) ‘independently requires the prosecution to disclose to the
defense . . . certain categories of evidence “in the possession of the prosecuting
attorney or [known by] the prosecuting attorney . . . to be in the possession of the
investigating agencies.”’ [Citation.] Evidence subject to disclosure includes . . .
‘[a]ny exculpatory evidence’ [citation]. ‘Absent good cause, such evidence must
be disclosed at least 30 days before trial, or immediately if discovered or obtained
within 30 days of trial. (§ 1054.7.)’ [Citation.] [¶] Upon a showing both that the
defense complied with the informal discovery procedures provided by the statute,
and that the prosecutor has not complied with section 1054.1, a trial
court . . . may . . . ‘advise the jury of any failure or refusal to disclose and of any
untimely disclosure.’ [Citation.] A violation of section 1054.1 is subject to the


trial counsel were not unprofessional for failing to move specifically to strike the
testimony on the same grounds. Moreover, as we have determined that there was
no Brady violation and that the admission of the preliminary hearing testimony did
not violate appellants’ confrontation clause rights, appellants cannot show
prejudice.

                                           20
harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.
[Citation.]” (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280.)
      Here, appellants were not prejudiced because the information was presented
to the jury through the cross-examination of Detective Carias. (See People v.
Verdugo, supra, 50 Cal.4th at p. 281 [no Brady violation where previously
undisclosed evidence was presented at trial; no prejudice from violation of section
1054.1 where defense counsel had time to prepare for cross-examination on
previously undisclosed evidence].) As a result, no instruction regarding delayed
disclosure was required. Moreover, for the reasons stated above, any error in
failing to instruct the jury regarding delayed discovery was harmless under any
standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 22;
People v. Watson, supra, 46 Cal.2d at p. 836.)


D.    Whether the Trial Court Abused its Discretion in Excluding Certain
Statements Anaya had Made to Detective Carias Regarding Cornejo.
      At the preliminary hearing, Anaya testified that when he was dragged into
the alley, Vargas shot him in the head. Anaya also testified that “Little Man”
(Cornejo) drew a handgun and tried to shoot him, but the gun jammed. Vargas and
Cornejo then reentered the truck. As Anaya began running away, two shots were
fired from the vehicle.
      At trial, the court precluded Cornejo’s counsel from introducing two
statements Anaya made to Detective Carias, stating that “Little Man” was
screaming after the shots were fired from the vehicle and speculating that Cornejo
                                     7
might have shot himself in the foot. Defense counsel had sought to introduce the

7
      Anaya told Detective Carias: “And then, boom. Then . . . the Expedition
went in reverse. Then they left again. And . . . at that time, I heard Little Man, that

                                          21
statements to show that Cornejo was not “Little Man,” because when arrested a
few weeks later, Cornejo showed no sign of injury. The trial court determined that
the two statements were not inconsistent with Anaya’s preliminary hearing
testimony: “There was some kind of scream after they were in the car. There’s no
testimony about it. And there’s no way of knowing whether he was screaming
because he was frustrated at his gun or he was screaming because Mr. Anaya had
gotten back up or they were driving away or -- you know, it’s total speculation that
he was screaming because he shot himself.” The court excluded the statements as
hearsay, and also under Evidence Code section 352, as being more prejudicial than
probative. On appeal, Cornejo contends the trial court abused its discretion in
excluding the statements. We disagree.
      Evidence Code section 1235 provides that “Evidence of a statement made by
a witness is not made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing . . . .” Here, there was no
preliminary hearing testimony whatsoever about Cornejo screaming. Thus, there is
no inconsistency between Anaya’s preliminary hearing testimony and the two
hearsay statements defense counsel sought to introduce.
      Cornejo contends in the alternative that the statements were admissible
under Evidence Code section 356, which provides: “Where part of an act,

he got off. Because the fool said, get out, get out. He told him, get out, fool. So
fucking -- I could hear Tico’s voice. You know, I recognized him. And then, when
Little Man shot, that’s -- oh I don’t know if -- I don’t know if he shot himself
because the gun -- he was having problems with the gun. So he shot. He goes,
oh.” Detective Carias asked, “So you heard him?” Anaya replied: “I heard him.
You know, I don’t know why he was going to scream, you know.” Anaya further
stated, “ So I think, like, in my head, after all the incident when I was just in the
hospital thinking like -- this fool fucking shoot himself, or what?” Later the
detective asked Anaya if he had heard Little Man screaming, and Anaya answered
in the affirmative.

                                          22
declaration, conversation, or writing is given in evidence by one party, the whole
on the same subject may be inquired into by an adverse party; . . . and when a
detached act, declaration, conversation, or writing is given in evidence, any other
act, declaration, conversation, or writing which is necessary to make it understood
may also be given in evidence.” (Italics added.) He contends the two statements
were part of the “same subject matter of the entire shooting incident.” We discern
no error in the trial court’s exclusion of the statements. They did not resolve any
ambiguity, clarify or otherwise explain Anaya’s testimony, and the record reflects
they were unnecessary to understand the testimony.
       Moreover, even had the court erred, any error would be harmless. (People v.
Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [evidentiary errors are tested under
harmless error standard of People v. Watson, supra, 46 Cal.2d at p. 836].) Anaya
identified Cornejo as one of his assailants. The statements indicated that Cornejo
had screamed after the shots were fired at Anaya from the truck. Anaya never
stated that he observed Cornejo shoot himself in the foot, or heard anyone say that
Cornejo had been shot. Although Anaya speculated that Cornejo may have
screamed because he shot himself in the foot, it is just as likely that Cornejo
screamed because the shots had missed Anaya. Thus, even had the statements
been admitted, it is not reasonably probable that the jury would have reached a
different result.


E.     Sufficiency of the Evidence
       Cornejo and Pacheco challenge the sufficiency of the evidence to support
certain of their convictions and sentencing enhancements. “In determining
whether the evidence is sufficient to support a conviction or an enhancement, ‘the
relevant question is whether, after viewing the evidence in the light most favorable


                                          23
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ [Citations.] Under this standard, ‘an
appellate court in a criminal case . . . does not ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.]
Rather, the reviewing court ‘must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence -- that is, evidence which is reasonable, credible, and of solid value --
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.)


         1.    Cornejo’s Conviction for Carrying a Concealed Firearm that was
Stolen
         As detailed above, on August 22, 2012, Detective Hernandez arrested
Cornejo after a short pursuit. During the pursuit, Cornejo had thrown a loaded .22
handgun away. When he was interviewed, Cornejo told Officer Chang that he had
stolen the gun from a Rockwood gang member and that he needed it for protection
because he had been “jumped out” of the Rockwood gang and had gotten into a
fight with a juvenile.
         As a result of this incident, Cornejo was charged with having a concealed
firearm on his person, in violation of section 25400, subdivision (a)(2). It also was
alleged that he committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)). The jury found Cornejo guilty as charged and found
true the gang enhancement allegation. It also found true that the firearm was
stolen, and that Cornejo knew or reasonably should have known that it was stolen.
The latter finding is significant because it elevates the offense from a misdemeanor


                                           24
to a felony. (See § 25400, subd. (c)(2).) The trial court sentenced Cornejo to three
years on count 7, plus four years for the gang enhancement.
        Appellant contends the evidence was insufficient to support the jury’s
findings that the firearm was stolen and that he committed the offense for the
benefit of the Rockwood street gang. We disagree. As to the gang enhancement
allegation, the gang expert’s testimony was sufficient to prove the elements of that
allegation. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 621; People
v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333.) As to whether the handgun
was stolen, appellant himself told Officer Chang he had stolen the handgun.
        Appellant contends it would be inconsistent for him to possess a concealed
firearm to benefit the Rockwood gang when he had been “jumped out” of the gang
and had stolen it from a Rockwood gang member. We disagree. First, the jury
was not required to believe Cornejo’s statement that he had been jumped out of the
gang. Indeed, Detective Hernandez opined that only gang members would know
the hidden locations where a gang would store firearms. Second, nothing
precludes animosity between members of the same gang. Appellant could have
stolen the handgun from another gang member for myriad reasons, none of which
would negate the fact that the Rockwood gang benefitted from having a member
armed in gang territory to defend it from rival gangs. Stated differently, the gang
would benefit if Cornejo were willing to defend its interests despite any personal
animosity toward a specific gang member. In short, a reasonable jury could have
made both findings, and there was substantial record in the evidence to support
them.




                                          25
      2.     Pacheco’s Convictions as an Aider and Abettor in the Kidnapping and
Attempted Murder of Anaya
      As detailed above, Anaya testified that Pacheco, armed with a .45-caliber
handgun, was present in the apartment and participated in assaulting Anaya in the
bathroom. Anaya also testified that Pacheco remained in the apartment when
Anaya was taken to the green truck, driven to the alley, and shot. Pacheco’s GPS
tracking device showed that Pacheco remained in the apartment. In closing
argument, the prosecutor stated it did not matter that Pacheco remained behind
because he aided and abetted in the kidnapping and murder. The jury convicted
                         8
Pacheco on all counts.
      Pacheco contends there was insufficient evidence to support the jury’s
finding that he aided and abetted in the kidnapping and attempted murder of
Anaya. We disagree. “[P]roof of aider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus -- a crime committed by the
direct perpetrator, (b) the aider and abettor’s mens rea -- knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in achieving those unlawful
ends, and (c) the aider and abettor’s actus reus -- conduct by the aider and abettor
that in fact assists the achievement of the crime.” (People v. Perez (2005)
35 Cal.4th 1219, 1225.)
      Here, the prosecution proved that the other defendants -- the direct
perpetrators -- kidnapped and attempted to murder Anaya. As to Pacheco’s mens
rea and actus reus, the jury heard the following: Pacheco was present when Anaya
gave Vargas the .357 handgun, when Vargas asked Anaya whether Anaya was an


8
      The jury was instructed on direct aider and abettor liability. The prosecution
declined to proceed on a natural and probable consequences or uncharged
conspiracy theory.

                                          26
informant, when Vargas told Anaya to remain in the bathroom, and when Cornejo
threatened Anaya with a gun. Pacheco participated in beating up Anaya, and he
was present and armed with a .45-caliber handgun when Vargas injected Anaya
with methamphetamine. Pacheco was also present when Vargas placed a sweater
over Anaya’s head and took him out of the apartment. On this record, a reasonable
jury could infer that Pacheco knew that his fellow gang members, who were armed
with handguns, would take Anaya, who was suspected of being an informant, to
another location and shoot him. (Cf. People v. Moore (1953) 120 Cal.App.2d 303,
306 [“‘The presence of one at the commission of a felony by another is evidence to
be considered in determining whether or not he was guilty of aiding and abetting;
and it has also been held that presence, companionship, and conduct before and
after the offense are circumstances from which one’s participation in the criminal
intent may be inferred’”].) Pacheco aided the offenses by participating in beating
Anaya and provided an armed presence when Vargas was injecting him with
methamphetamine, both acts that rendered Anaya more malleable and less likely to
resist the kidnapping and shooting. Moreover, a reasonable jury could have
inferred that the only reason Pacheco, who was armed, did not accompany the
other appellants as they kidnapped and shot Anaya was because he had a GPS
tracking device on his person. In short, there was substantial evidence in the
record to support Pacheco’s convictions.


F.    Cumulative Error
      Finally, appellants contend that, even if harmless individually, the
cumulative effect of these claimed trial errors mandates reversal of their
convictions. Because we have found no error, their claim of cumulative error fails.




                                           27
(See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998)
18 Cal.4th 297, 335.)


                                DISPOSITION
      The judgments are affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                        MANELLA, J.


We concur:




EPSTEIN, P. J.




COLLINS, J.




                                       28
