Filed 6/3/14 P. v. Mendoza 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                             C071775

                   Plaintiff and Respondent,                                     (Super. Ct. Nos.
                                                                             SF115887A, SF115887B)
         v.

EMMANUEL MATHEW MENDOZA et al.,

                   Defendants and Appellants.




         A jury found codefendants Emmanuel Mathew Mendoza and Edgar Jose Canseco
guilty of first degree murder and attempted second degree robbery. With respect to both
defendants, the jury also sustained firearm and gang enhancement allegations as to each
offense, and special circumstance allegations that the murder occurred during the
commission of an attempted robbery.

         The trial court sentenced both defendants to state prison for an indeterminate life
term without the possibility of parole, consecutive to an eight-year determinate term for



                                                             1
the attempted robbery, one firearm enhancement, and one gang enhancement. (The court
imposed and stayed the second firearm and gang enhancements.)

       Defendant Canseco asserts that the first degree murder verdict is flawed because
the instructions allowed for an amalgam of first degree and second degree theories; the
felony-murder rule and the felony-murder special circumstance should not apply to the
derivative liability theory of conspiracy; and he cannot be sentenced both for a felony
murder and the underlying felony. (His codefendant does not join in these claims.)
Defendant Mendoza (joined by his codefendant) contends the trial court erred in allowing
an expert to offer the opinions that defendants intended their crimes to benefit a gang and
committed them with an intent to promote or assist the criminal conduct of members of a
gang; and there is otherwise insufficient evidence to support either this enhancement or
the special circumstance finding. We shall affirm the judgments.

                 FACTUAL AND PROCEDURAL BACKGROUND
       The murder victim, Kevin Prater, his girlfriend, and defendant Canseco had been
friends since attending a high school in Tracy.1 In September 2010, the girlfriend (who
had moved out of state) was visiting her local family and the victim. She was the primary
eyewitness to the crimes.

       A few days before the events underlying the convictions, the three had gone out
for fast food. During the hour or so that they spent together, the girlfriend did not sense
anything out of the ordinary about defendant Canseco’s behavior. In the early evening on
September 15, the girlfriend and the victim were watching television at his mother’s
home. Defendant Canseco kept trying to call the victim, who at first was ignoring the
calls. The victim eventually answered and spoke with defendant Canseco, then told the



1 As a gang expert noted off the record, investigators were never able to locate anyone
who could establish a connection between defendants.


                                              2
girlfriend that they were going to go pick him up (a courtesy they often offered each
other).2

       The victim was wearing a large amount of expensive jewelry, including a gold
watch, diamond earrings, a gold chain, a three-diamond ring, a diamond tennis bracelet,
and a detachable gold crown cap over his top front teeth. The total estimated value was
about $3,000. In the car’s console were an imitation Rolex and his mother’s broken gold
nugget tennis bracelet (the estimated value of the latter was $3,495), which she had given
to him a couple of weeks earlier to get fixed.

       The victim drove to a cul-de-sac west of Tracy Boulevard bordered on the south
side by train tracks, which were fenced off (although there was an opening cut in the
fencing), and on the north side by houses. Oleanders grew along the fence. The location
was not well illuminated. Defendant Canseco was standing in the road near the
shrubbery. The girlfriend testified that she and the victim had remarked “it looked like he
on something.” As defendant Canseco was wearing a black hooded sweatshirt over his
red hat and shirt, getting picked up in the middle of nowhere and looking ill at ease, she
thought he also looked like he was up to something and being sneaky.

       Defendant Canseco got into the back seat and started texting. The girlfriend
wanted to go to the grocery store to get a snack, but defendant Canseco asked them first
to drive to a house on Beechnut Street, which was on the south side of the train tracks
near Alden Park. This was near the other side of the opening in the fence. Defendant
Canseco briefly went inside while the others waited.



2 Although not the subject of testimony at trial, the probation report notes that texts
between the two (contained in an admitted exhibit of defendant Canseco’s cell phone log)
indicate defendant Canseco was offering to get marijuana for the victim, who could not
afford it. (Defendant Canseco’s texts automatically concluded with a nickname, “Pelon”
(meaning “Baldy”).


                                              3
       On his return, they drove to the store, which was less than five minutes away.
Defendant Canseco continued texting on his phone. The girlfriend went in to get her
snack. When she came back, defendant Canseco asked them to return to the cul-de-sac
to get “something” from a friend. When they arrived, defendant Mendoza was standing
about where defendant Canseco had been. He got in the back seat behind the girlfriend.
The girlfriend testified that he had looked familiar to her when he got into the car, and
she thought he may have attended high school with them.3

       Less than a minute later a tall and slender man dressed in dark clothing and
wearing a mask, suddenly appeared at the driver’s window with a long gun and
demanded the victim’s property. He was loud and aggressive. The victim turned to
defendant Canseco and asked angrily if this was “what you on” (the girlfriend
interpreting his remark for the jury as meaning that he could not believe defendant
Canseco had set him up). Defendant Canseco did not respond. The victim began tussling
with the stranger for control of the weapon. Both defendants started trying to restrain
him from the back seat. The girlfriend was in the process of escaping from the car when
she heard a single shot, and ducked into some nearby oleander bushes. Both defendants
and the shooter ran off through the opening in the fence.

       The victim hit the gas pedal with his foot and the car drove off down the cul-de-
sac to Tracy Boulevard, where it crashed. He died from a gunshot wound that appeared
unremarkable on the surface but resulted in “explosive” internal injuries, indicating it was
likely a high-velocity bullet fired from a rifle.

       The girlfriend, who had hidden to make sure the other men were gone, ran down
the street to the car. A police officer who had been patrolling nearby was already there,

3 Other than a couple of communications earlier in the day on September 15, phone
records for the period from late July to late September 2010 did not list any contacts
between the two defendants before that day.


                                               4
arriving a minute after a 911 call at 9:01 p.m. Within minutes, other police officers
arrived at the scene. The girlfriend told them about the attempted robbery and gave them
defendant Canseco’s name. She later identified defendant Mendoza in a photographic
lineup.

          Two residents of the cul-de-sac also testified about their observations that night.
The details vary somewhat from the girlfriend’s. As the girlfriend’s testimony otherwise
is substantial evidence of the circumstances of the offenses, we omit a summary of these
other witnesses because they do not add anything material.

          Defendant Canseco was arrested the following evening when the police stopped a
car in which he was travelling.4 The police obtained a warrant for defendant Mendoza’s
arrest a few days later after his identification. He was eventually captured in Cuidad
Juarez, Mexico, in October 2011.

          As noted above, there was an exhibit of texts to and from defendant Canseco on
the evening of September 15, 2010. Between 8:00 and 9:00 p.m., in addition to texts
between the victim and Canseco, there were a number sent between Canseco (area code
510) and Mendoza (area code 209), and Canseco and a person nicknamed Taz5 (area


4 Although the evidence was not admitted at trial for obvious reasons, the probation
report notes that during his interrogation after his arrest, defendant Canseco identified
defendant Mendoza as his accomplice and another person (James Stancampiano) as the
shooter. The latter was still at large as of the date of the report (July 2012).
5 Taz apparently obtained the 925 phone from a friend in July 2010. Taz’s mother knew
defendant Mendoza because he “did music” with Taz on recording equipment in Taz’s
bedroom; another music-making friend was James Stancampiano. She did not know
defendant Canseco. A note with Taz’s name and phone number was in defendant
Canseco’s dresser drawer. Some of the communications from defendant Canseco to his
brother on the night of the murder were sent from the 925 phone, as well as his 510
phone. The gang expert was familiar with Taz from previous contacts. The record
indicates Taz was in custody in an Alameda County jail facility at the time of trial, but
did not testify.


                                                5
code 925). In response to Taz’s query, Canseco said he was at a park (Alden) on Palm
Circle at 8:10 p.m., a street running south from Beechnut Street near the fence opening.
Taz said he would walk there. At 8:35 p.m., defendant Canseco told Mendoza to start
walking and told Taz at 8:38 p.m. to act as a lookout. At 8:40 p.m., Canseco told
Mendoza “he” (i.e., the victim) was trying to leave and that they would be heading to
Beechnut Street. At 8:43 p.m., Canseco told Mendoza to go down Beechnut away from
Tracy, and then a minute later told him to go back to the cul-de-sac. Mendoza told
Canseco to act as if he was picking up a “bag” (presumably of marijuana) from him. At
8:47 p.m. and 8:48 p.m., Canseco told Mendoza that he would be right back after they
stopped at the grocery store. (At the same time, the victim sent his final text, asking
where defendant Canseco was.) At 8:51 p.m., Taz asked if “he” was armed; Canseco
assured Taz “he” was not, and let Taz know that “he” was wearing a gold crown front
cap. At 8:54 p.m. and 8:55 p.m., Canseco said they were on the way and told Mendoza to
be ready. Mendoza asked if Canseco had said he was getting marijuana; Canseco
answered in the affirmative. Canseco asked Mendoza if he should stay in the car when
picking up the marijuana or get out. At 8:58 p.m., Mendoza told him to stay in the car,
and said he was going to be at the corner. As noted, the 911 call occurred at 9:01 p.m.

       Defendant Canseco had called his brother later that evening and told him to move
ammunition from defendant Canseco’s room to the brother’s room, and to leave the front
door unlocked. The brother knew that the ammunition was for a sawed-off rifle that
defendant Canseco owned. Defendant Canseco had sent pictures to his girlfriend of
himself and his brother showing Canseco holding a rifle. In a search of the Canseco
home on the morning after the shooting, police retrieved the ammunition from the
brother’s room and a scope in defendant Canseco’s room. These were compatible with
the model of the rifle he appeared to be holding in the photographs, and a fragment




                                             6
retrieved from the victim was a base of a bullet of the same size as the ammunition. This
ammunition usually inflicted wounds similar to the victim’s.

                                       DISCUSSION

                           I. Defendant Canseco’s Contentions
        A. The Possibility of a Nonunanimous Murder Verdict Was Not Present
       The trial court instructed the jury after closing arguments. In the segment of the
instructions devoted to the charge of murder, the trial court informed the jury that “[t]he
Defendants have been prosecuted for murder under three theories. And these were
discussed yesterday. One is malice aforethought. Two, felony murder of the first degree.
And, three, murder of the second degree. Each theory of murder has different [elements],
and I will instruct you on all of them . . . . You may not find the Defendants guilty of
murder unless all of you agree that the People have proved that the Defendants committed
murder under at least one of these theories. You do not all have to agree on the same
theory.”6 (Italics added.) Taking up the element of malice necessary to establish murder,
the trial court instructed that it could be either express or implied, defining both types.
The court next explained that “[i]f you decide that the Defendants committed murder, you
must then decide whether it is murder of the first or second degree.” (Italics added.) The
court continued with the pattern instructions defining the element of premeditation
necessary for first degree murder. In connection with the lesser offense, the trial court
instructed that “The requirements for second degree murder based on express or implied
malice are explained in CALCRIM [No.] 520. . . . The People have the burden of
proving beyond a reasonable doubt that the killing was first degree murder rather than a
lesser crime. If the People have not met this burden, you must find the Defendants not



6 Both the prosecutor and defendant Canseco’s trial counsel had made the same point in
their earlier arguments.


                                              7
guilty of first degree murder.” The court thereafter instructed on the alternative theory of
first degree felony murder without malice.

       The court turned to the process of reaching a verdict: “[W]e had everyone here
talk about first degree murder, and also the lesser offense of second degree murder. . . .
[Y]ou’ve got verdict forms for first degree murder, verdict forms for second degree
murder. If you are not satisfied beyond a reasonable doubt that the Defendants are guilty
of . . . first degree murder and you unanimously so find, you may nevertheless convict
[them] of the lesser crime of second degree murder, provided you are unanimously
satisfied beyond a reasonable doubt that [they are] guilty of that crime. Thus, you are to
determine whether the Defendants are guilty or not guilty of the crime of first degree
murder or the lesser crime of second degree murder. . . . [T]he Court cannot accept a
guilty verdict on the lesser crime of second degree murder unless you have unanimously
found the Defendants not guilty of first degree murder.” (Italics added.) It reiterated, “if
you find the Defendants guilty of first degree murder, you should not complete the
verdict form on the corresponding lesser offense of second degree murder . . . . [¶] If
you find the Defendants not guilty of first degree murder . . . you then need to complete
the verdict on the . . . included offense[] of second degree murder by determining whether
the Defendants are guilty or not guilty of that crime.” (Italics added.)

       Defendant Canseco contends the jury could reasonably interpret the trial court’s
instruction at the outset (“You do not all have to agree on the same theory”), after the
court had listed three theories that included murder of the second degree, as allowing the
jury to return a verdict of first degree murder even though some jurors believed him
guilty only of second degree murder. We reject this strained logic.

       In the first place, defendant Canseco has forfeited this claim because it is based on
what he perceives as an imprecision in an instruction that is otherwise a correct statement
of the law, for which he was required to request modification or amplification in the trial


                                             8
court. (People v. Lee (2011) 51 Cal.4th 620, 638.) We also reject his assertion that trial
counsel was ineffective for failing to make such a request because trial counsel could
reasonably have concluded that any modification of the instruction was unnecessary, as
we will explain.

       Under federal and state law, a defendant must establish the reasonable likelihood
that a reasonable juror would have interpreted an instruction in the claimed erroneous
manner. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316]; People v.
Williams (2013) 56 Cal.4th 630, 688.) While it is theoretically possible that the court’s
remark at the outset of the discussion of the theories of murder may have suggested of itself
that the three theories are interchangeable, the subsequent instructions defining the theories
and the process of returning a verdict (and the separate verdict forms for first and second
degree murder) made it abundantly clear to the jury that the elements of second degree
murder were not relevant to its deliberations over premeditated first degree murder, because
it could not return a verdict under a theory of second degree murder until it was
unanimously convinced that defendants were not guilty of premeditated first degree murder
(or felony murder, for which malice was not even relevant and no decision was necessary
on degree). Moreover, even if the instruction has any ambiguity, nothing in the arguments
of counsel suggested that a verdict of first degree murder could rest on a theory of implied
malice without premeditation. (Middleton v. McNeil (2004) 541 U.S. 433, 438
[158 L.Ed.2d 701]; People v. Kelly (1992) 1 Cal.4th 495, 526-527.) Rather, counsel
referred to the principle of nonunanimous theories to explain why they were discussing both
of the theories of felony murder and premeditated murder. As a result, we reject this
argument.7



7 Alternately, defendant Canseco does not give any clear explanation of how he could
possibly be prejudiced from any ambiguity in this respect, because the jury otherwise
found unanimously that he was guilty of attempted robbery, during the course of which a

                                               9
             B. Felony-murder Derivative Liability Applies to Conspirators
       The trial court instructed the jury that it could find defendant Canseco guilty of
felony murder either as an aider/abettor or as a conspirator. He now contends conspiracy
should not be considered a proper basis for derivative liability for felony murder. Based
on People v. Washington (1965) 62 Cal.2d 777, which declared that the purpose of the
felony-murder rule is to deter negligent or accidental deaths during a felony, and that the
rule should be strictly construed (id. at pp. 781, 783), defendant Canseco asserts “pure”
conspirators—presumably those who otherwise neither aid nor abet the commission of
the felony—would not have any power to control the manner in which the felony was
committed, and therefore no purpose is served extending the rule to them.8

       The problem with his argument is the Supreme Court’s unqualified declarations
that conspiracy, even where not prosecuted as an independent offense, is a proper basis
for criminal liability for the acts of a coconspirator. (In re Hardy (2007) 41 Cal.4th 977,
1025 (Hardy); People v. Belmontes (1988) 45 Cal.3d 744, 788.) If there is to be any limit
on this principle, that court must establish it, not this one. We therefore reject his claim.
      C. The Felony-murder Special Circumstance Also Applies to Conspirators
       A sentence of life without parole can apply to any person other than the actual
killer who, with the intent to kill (or as a major participant with reckless indifference to


killing occurred. In light of these findings, the option of second degree murder was not
rationally open to any juror. His metaphoric rhetoric notwithstanding, we do not discern
how any error in instructions relating to theories of murder could have had any effect on
deliberations for the attempted robbery verdict and the special circumstance finding.
8 The People raise their oft-repeated claim that the failure to object to the instructions on
this basis in the trial court forfeits the argument. We have endlessly explained that this
contention ignores Penal Code section 1259 (undesignated statutory references are to this
code) and controlling Supreme Court precedent, all to no avail. As defendant Canseco
accurately explains, “the [People] fail[] to discuss . . . section 1259 . . . , which has been
part of California law . . . for more than a century, [because it] is an irritant the [People]
prefer[] not to acknowledge.” We therefore will disregard this argument in the present
case without any further elaboration.


                                              10
life), aids, abets, counsels, commands, induces, solicits, requests, or assists in committing
a felony murder. (§ 190.2, subds. (c) & (d).) The trial court instructed the jury that this
special circumstance applied both to those guilty of first degree murder as an aider/abettor
or as a member of a conspiracy.

       Defendant Canseco asserts that “conspire” is not explicitly included among the
other terms in these subdivisions, and therefore its inclusion in the pattern jury instruction
for a special circumstance is unwarranted.9 He points out that one may conspire without
aiding/abetting, which requires “actual participation in the . . . offense” (People v.
Malotte (1956) 46 Cal.2d 59, 65-66), and one can aid or abet a crime without having
conspired to do so (People v. Morante (1999) 20 Cal.4th 403, 433). He also claims that
section 31, which applies “criminal liability as a principal to those who are not present at
the commission of an offense” if (with the requisite mental state) they assisted the actual
perpetrator (Morante, at p. 433), is limited to aiders and abettors, not coconspirators.

       His arguments are untenable. Defendant Canseco does not explain how in general
a conspirator who is a major participant acting at least with reckless disregard of life
would not also be aiding and abetting the felony murder even if the statute did not
contemplate the inclusion of pure conspirators within its reach. He also does not explain
how his own conduct in particular would present a situation of a pure conspirator.
Further, his interpretation of section 31was rejected in People v. Mohamed (2011)
201 Cal.App.4th 515, 523-524, both as a matter of its own independent interpretation of
the statute (which has not garnered any criticism in the interim) and in reliance on the
unequivocal statement in Hardy that “[o]ne who conspires with others to commit a felony
is guilty as a principal,” citing the statute in support. (Hardy, supra, 41 Cal.4th at



9 Again, we simply disregard the People’s claim that defendant Canseco has forfeited
this argument because he failed to object to the instruction in the trial court.


                                              11
p. 1025.) If unconvinced, defendant Canseco may now address his arguments to the
Supreme Court; we are neither willing nor able to endorse them.
            D. Defendant Canseco Is Properly Punished for Both Offenses
       Defendant Canseco contends section 654 precluded the trial court from imposing
sentence on both offenses. We disagree.

       Where a defendant is prosecuted solely on a theory of first degree felony murder,
section 654 precludes punishment both for the murder and for the underlying felony.
(E.g., People v. Mulqueen (1970) 9 Cal.App.3d 532, 547.) However, if the prosecution
rests on the alternative theories of premeditation and felony murder, and there is evidence
supporting an implicit finding that the murder was premeditated, then the trial court may
properly impose additional punishment for the felony as well. (People v. Osband (1996)
13 Cal.4th 622, 730-731.)

       Defendant notes that the prosecutor argued felony murder was “just so applicable
. . . that you really don’t even have to get into those other [theories].”10 However, the
prosecutor also argued that the killing could have been premeditated based on the fact
that a rifle was superfluous where the shooter and defendants outnumbered the victim.
(The prosecutor also argued that if for some reason the jury did not find that there was an
attempted robbery, the conduct was still sufficient to establish implied malice for a
verdict of second degree murder.) In any event, it is not the prosecutor’s arguments or
what the jury found that is controlling. As we emphasized in People v. McCoy (2012)
208 Cal.App.4th 1333, our focus is on the trial court’s explicit or implicit finding that has
substantial evidence in support (McCoy, at p. 1338), which can be independent of the
facts or theories underlying the jury’s verdict in the absence of some circumstance


10 Defendant Canseco’s trial counsel, by comparison, ridiculed the presence of any
premeditation as speculation or an intent to rob a longtime friend, and instead argued that
“the most just verdict” would be second degree murder premised on implied malice.


                                             12
foreclosing its sentencing discretion (id. at p. 1340). It may be that the shooting was an
accident in the midst of an intended robbery, but the trial court could also properly infer
that the shooter’s intent to kill arose out of the frustration of being confronted with a
resisting victim who was seeking to gain control of the rifle, or out of a desire to send a
message to future victims of the gang’s willingness to kill a resisting robbery victim.
Therefore, the trial court could properly impose additional punishment for the attempted
robbery.

                                   II. Joint Contentions
                A. Sufficient Evidence Supports the Gang Enhancement
       In another challenge defendants argue the evidence is insufficient to support the
gang enhancements of their determinate sentences in two respects. They claim it does not
establish that the offenses are gang related because it does not demonstrate any benefit to
a gang. They also assert the trial court improperly allowed the gang expert to express an
opinion that they (as opposed to a hypothetical person) committed the crimes for the
benefit of or in association with a gang and possessed the necessary specific intent to
promote or assist the criminal conduct of gang members.
1. Pertinent evidence.
       Defendant Canseco had told his brother that he was a member of a particular gang
(identifying the umbrella entity under which various subsets operated). The brother had
seen defendant Canseco customarily wearing the color associated with the umbrella
entity, and authenticated photographs in which he and his brother were displaying the
entity’s insignia.

       On his arrest, defendant Canseco asserted his affiliation with the umbrella gang
entity. Defendant Mendoza had the entity’s insignia tattooed on his elbow and chest.
Defendant Canseco had an insignia of the entity tattooed on his hand.




                                              13
       The gang expert reviewed pictures from defendant Canseco’s camera. In his
opinion, these showed defendant Canseco and others displaying insignia of the umbrella
entity and particular subsets based in Oakland and Tracy. Based on these photographs,
self-admittance, his attire, his hand tattoo, and field contacts and reports, the expert
believed defendant Canseco was a member of the Oakland subset. Based on tattoos on
defendant Mendoza and personal contacts with him dating back several years, the expert
believed defendant Mendoza was a member of a Tracy subset of the umbrella entity
associated with the Alden Park area. The expert also offered the opinion that the shooter
was a member of the same Tracy subset, although he did not provide the jury with the
basis for this opinion11 beyond the fact that the offenses were committed in a coordinated
fashion—which indicated the offense was for gang purposes12—with two other gang
members. Gang members also make heavy use of text messaging. The Tracy gang
subsets are known to shoot people for their jewelry and removable gold crown caps. As
far as the expert was aware, the victim did not have any local gang associations. The
expert did not make any investigation of whether the victim had any gang associations in
Oakland where he lived part-time with his father (and had a tattoo referencing that area).

       The expert believed the robbery and shooting were committed for the benefit of
a gang. He based this opinion on defendant Canseco’s commission of the crimes while
attired in the color of the umbrella gang entity, which would contribute to the fearsome


11 This was pursuant to an agreement to exclude evidence that the expert was aware
defendant Canseco had identified James Stancampiano as the shooter, who was otherwise
associated with defendant Mendoza (and therefore defendant Canseco’s statement could
incriminate defendant Mendoza “because of guilt by association”). We thus reject
defendant Mendoza’s argument that this opinion should be disregarded for want of a
factual basis.
12 He believed the robbery was for gang purposes even without any announcement of
gang affiliation during the commission, because “more and more these days . . . they are
trying to conceal their identity.”


                                              14
reputation of the local subset. In addition, even under the isolated circumstances of these
offenses, “word of mouth spreads like fire” through the gang demimonde “and they know
who is who.” He admitted that not every crime a gang member commits is for the benefit
of the gang.

       At the conclusion of the expert’s direct examination, the prosecutor asked, “So is
your opinion that . . . Edgar Canseco committed . . . this crime for the benefit of . . . or in
association with a criminal street gang?” The expert answered, “Yes, I do” and gave the
same answer with respect to defendant Mendoza. The prosecutor then asked, “And is it
your opinion that Edgar Canseco intended to assist . . . or promote criminal conduct by
gang members?” The expert again answered in the affirmative, with the same answer
regarding defendant Mendoza.13
2. Sufficiency of evidence.
       As is pertinent here, the first element of a gang enhancement requires proof that a
defendant committed an offense for the “benefit” of a street gang or “in association with”
a street gang. (§ 186.22, subd. (b)(1).) “Not every crime committed by gang members is
related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) However,
proof of benefit to a gang can be in the form of expert opinion that the commission of an
offense enhances the gang’s reputation for viciousness, which is sufficient to raise the
inference of benefit. (Albillar, at p. 63.) If there is substantial evidence that multiple
defendants “came together as gang members” in the commission of an offense, rather
than “ ‘on a frolic and detour unrelated to the gang,’ ” this is proof “that they committed
these crimes in association with the gang.” (Id. at p. 62.) The joint commission of an
offense is sufficient to infer that the gang members are acting together qua gang members


13 The court and the parties were under the impression that an unspecified recent case
(the trial took place in June 2012) permitted the prosecutor to frame the questions in this
manner.


                                              15
in the absence of evidence to the contrary. (People v. Morales (2003) 112 Cal.App.4th
1176, 1198 (Morales).) Proof of such association is sufficient to support the gang
enhancement even in the absence of proof of tangible or reputational benefit to a gang.
(Ibid.)

          Defendants assert the prosecutor relied solely on proof of benefit to a street gang,
without any citation to the record identifying where the prosecutor supposedly made any
such election. However, the instructions refer to both criteria; accordingly, our review of
the evidence is not confined in the manner defendants suggest.

          Defendants argue the prosecution did not establish that there would have been any
financial benefit to the gang from the commission of a robbery. They acknowledge that
the expert indeed testified that the commission of the crimes would nonetheless benefit
the gang because this would enhance its vicious reputation. They contend, however, that
the robbery as planned would not have communicated the gang’s involvement (or their
status as gang members involved in the crime), because bystanders were not present14
and none of the participants communicated any gang involvement during the crimes.
They ignore the expert’s opinion that word of mouth would nonetheless have quickly and
effectively communicated the gang’s involvement to the gang and its rivals, even if the
general population or police might not have known.

          Furthermore, they ignore (until defendant Mendoza’s reply brief) the evidence of
the alternate criterion of committing the crime in association with gang members. This
forfeits the argument. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061,
fn. 7.) It is thus sufficient for us to note that the extensive coordination of the attempted
robbery with other identified members of the umbrella entity is sufficient to establish this




14 There was at least one bystander—the victim’s girlfriend.



                                                16
criterion.15 It is untrue, as defendants argue, this would result in the imposition of the
enhancement as a matter of law whenever gang members jointly commit a crime. A jury
must first be convinced to draw this inference (as opposed to the alternative inference that
the gang members were acting on a lark) before sustaining the enhancement.
3. The opinion testimony.
       Also at issue here is another element of the gang enhancement, which requires
proof of a specific intent to promote or assist the criminal conduct of gang members, as
opposed to the gang itself. (Albillar, supra, 51 Cal.4th at p. 67; Morales, supra,
112 Cal.App.4th at p. 1198; § 186.22, subd. (b)(1).) Again, substantial evidence of the
joint commission of an offense with other known gang members is sufficient of itself to
supply an inference of specific intent to promote or assist other gang members, in the
absence of evidence to the contrary. (Albillar, at p. 68; People v. Villalobos (2006)
145 Cal.App.4th 310, 322 [cited with approval in Albillar, at pp. 65-66].)

       Defendants contend the prosecutor was not permitted to ask the expert whether
they (as opposed to a hypothetical person based on the facts of the case) satisfied the two
criteria for the gang enhancement. They recognize that their trial counsel failed to object
either to the prosecutor’s questions or to the answers of the expert witness. Defendant
Canseco asserts (with the concurrence of defendant Mendoza) that this lapse was an
instance of prejudicial ineffective assistance of counsel.




15 In his reply brief, defendant Mendoza mentions in passing that defendant Canseco
was a member of a different subgroup of the umbrella entity than defendant Mendoza or
the shooter without further developing the point. As this argument is forfeited, we simply
observe that we have previously noted it is sufficient for a prosecutor to prove the goals
and identifying characteristics of an umbrella entity without further identifying the
particular subsets where there is an absence of any evidence that the subgroups have
divergent goals or activities. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1357.)


                                             17
       We agree that the prosecutor improperly framed the question. The People do not
attempt to defend the propriety of the questions. People v. Vang (2011) 52 Cal.4th 1038,
1047-1048, specifically held that an opinion premised on hypothetical questions based
closely on the particular evidence at trial are permissible, whereas questioning whether a
particular defendant satisfied the criteria for the gang enhancement is prohibited because
it does not assist the jury on the question of guilt. (Accord, People v. Gonzalez (2006)
38 Cal.4th 932, 946-947 & fn. 3.) We cannot determine on what other controlling
authority to the contrary the trial court and the parties apparently relied.

       However, we also agree with the People that the error was harmless. Defendants
argue the evidence was otherwise insufficient to support the enhancement. However, we
have already identified the substantial evidence in support of the first criterion other than
the opinion. The commission of the offense in concert with other gang members is also
sufficient evidence of itself to establish an inference of the intent to promote or assist
criminal conduct of gang members. Defendant Canseco also suggests (in a scant couple
of sentences) that the improper expert opinion could have affected the jury’s evaluation
of his status as an aider/abettor of the underlying offenses. He does not explain, however,
how the verdicts might have been any different in the absence of the expert opinion, or
establish that the opinion essentially directed a verdict on the enhancement, given that the
jury received the customary instruction that it was not bound to accept expert opinions.
(People v. Prince (2007) 40 Cal.4th 1179, 1227.) We thus reject his claim of prejudice.
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
          B. Sufficient Evidence Supports the Special Circumstance Finding
       Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140] analyzed whether the
Eighth Amendment’s proscription against a punishment disproportionate to the crime
committed (id. at p. 788) prevented “imposition of the death penalty on one . . . who aids
and abets a felony in the course of which a murder is committed by others but who does



                                              18
not . . . kill, attempt to kill, or intend that a killing take place or [that there will be the use
of] lethal force . . . .” (Enmund, at p. 797.) It concluded a death sentence for felony
murder simpliciter without any proof of a culpable mental state was unconstitutional.
(Id. at p. 788; see Tison v. Arizona (1987) 481 U.S. 137, 147 [95 L.Ed.2d 127] (Tison).)
Tison later limited the rule in Enmund to the status of constitutional subflooring. Tison
held that an actual intent to kill is unnecessary; a death sentence is proportionate in a
felony murder if there is proof of the overlapping criteria that a defendant substantially
participated in the crime resulting in the death, and had a reckless indifference to human
life that is “implicit in knowingly engaging in criminal activities known to carry a grave
risk of death” as a “natural, though also not inevitable . . . result.” (Tison, supra,
481 U.S. at pp. 157-158 & fn. 12.) Tison explicitly eschewed any “attempt to precisely
delineate the particular types of conduct” that constitute a reckless indifference to human
life. (Id. at p. 158.) This reasoning in connection with the penalty of death is equally
applicable to a sentence of life without parole. (People v. Estrada (1995) 11 Cal.4th 568,
575-576.)

       Asserting that as planned the robbery presented little likelihood that the victim
would resist or that bystanders would interfere or summon the police, and thus there was
a “minimum risk of the situation escalating,” defendants argue there is consequently
insufficient evidence that they should have been subjectively aware of a grave risk of
death. They also contend the evidence does not establish an actual intent to kill on their
part. (They do not dispute the sufficiency of the evidence of their major participation in
the attempted robbery.) We conclude a reasonable trier of fact could find on the present
record that defendants were recklessly indifferent to human life (People v. Johnson
(1980) 26 Cal.3d 557, 575-578) even if that is not the only finding possible on the
evidence. As a result, we do not need to consider the scant evidence that the People




                                                19
marshal in support of an implied finding that defendants themselves intended to kill the
victim while leaving the girlfriend alive.

       We have previously rejected the suggestion that staging a robbery in a secluded
area decreases the risk of violence. (People v. Lopez (2011) 198 Cal.App.4th 1106,
1118.) Whether or not defendant Mendoza was aware that the shooter would be using a
rifle in the robbery, he participated in the robbery and fled the scene after the victim was
shot without any attempt at coming to the victim’s aid. This is sufficient of itself to
establish reckless indifference to human life, because a grave risk of death arose during
the commission of the robbery despite any purported planning to the contrary. (People v.
Smith (2005) 135 Cal.App.4th 914, 927-928; People v. Hodgson (2003) 111 Cal.App.4th
566, 580 & fn. 34, citing Tison.) As for defendant Canseco, the claim of insufficient
evidence is ludicrous. Not only did he participate in planning the robbery, the evidence
supports an inference that he supplied the rifle to the shooter, he lured the victim to the
isolated location, he participated in the robbery, and he also fled the scene without
offering any aid to the victim. That he may not have intended the shooting of the victim
is irrelevant. (Lopez, supra, 198 Cal.App.4th at p. 1117; People v. Proby (1998)
60 Cal.App.4th 922, 930; People v. Mora (1995) 39 Cal.App.4th 607, 612, 617.) We
therefore reject this argument.

                                      DISPOSITION
       The judgments are affirmed.

                                                         BUTZ                  , J.

We concur:


      BLEASE                 , Acting P. J.


      MURRAY                 , J.

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