Filed 8/10/15 P. v. Virto CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

THE PEOPLE,                                                          B243201

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA118561)
         v.

AGUSTIN BERNARDO VIRTO et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court for the County of Los Angeles.
Laura R. Walton, Judge. Affirmed.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant Agustin Bernardo Virto.
         Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and
Appellant Edwin Zamora.
         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant Rodrigo Sandoval.
         John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant Pedro Antonio Sierra.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Jonathan J. Kline and Taylor
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
                                   _______________________________
                                        SUMMARY
       Four defendants – Agustin Bernardo Virto, Edwin Zamora, Rodrigo Sandoval and
Pedro Antonio Sierra – appeal from attempted murder convictions with gang and other
enhancements, asserting multiple claims of error. Defendants, who join in each other’s
arguments, assert error in the trial court’s refusal to grant a mistrial based on the
prosecutor’s failures to provide timely discovery; instructional error on aiding and
abetting (and error in the trial court’s response to a jury question on that topic);
insufficient evidence of aiding and abetting; insufficient evidence of intent to kill and
premeditation in the attempted murders; and error in failing to instruct on attempted
involuntary manslaughter and assault.
       Defendants also contend the gang expert was not qualified to testify as an expert;
photographs depicting their gang should not have been admitted in evidence; and the
gang expert should have been required to disclose the identity of gang members with
whom the expert spoke about the benefit of the crimes to the gang.
       Defendants contend there was error in the admission of evidence that they
admitted gang membership while being booked for these crimes.
       Defendant Sandoval contends the trial court erred in denying his motion for
severance. He and defendant Zamora, who were under age 18 at the time of the offenses,
contend their sentences violate constitutional prohibitions on cruel and unusual
punishment. Defendants also claim error in the amount of the restitution fines imposed,
and cumulative error.
       With two exceptions, we find no error. First, the trial court was required as a
matter of law to grant Mr. Sandoval’s motion for severance, but the error was harmless.
Second, our Supreme Court has held that admissions of gang membership, elicited during
routine booking procedures without Miranda 1 warnings, may not be admitted in
evidence during the prosecution’s case in chief, so the trial court erred in doing so. The



1      Miranda v. Arizona (1996) 384 U.S. 436 (Miranda).


                                               2
error, however, was harmless beyond a reasonable doubt. Accordingly, we affirm the
judgments.
                                          FACTS
1.     The Crimes
       This case involves two separate incidents, one a stabbing and the other a shooting,
in which various defendants, all alleged to be members of the Compton Varrio Segundo
(CVS) gang, attacked two different victims, each believed to be associated with other
gangs. Defendants Virto and Sandoval were involved in the shooting, and defendants
Zamora and Sierra were involved in both incidents.2
       a.      The June 5, 2011 stabbing of Andres Perez
       On June 5, 2011, Andres Perez was walking with a friend to a liquor store near his
home in Paramount when a black Hyundai pulled over. Mr. Perez had been living in the
area for only a month or two, and had seen the black Hyundai before, just after he moved
to Paramount. There were four people in the car. Someone in the car asked “where I was
from or ‘What does your tattoos say?’ ” (Mr. Perez had visible tattoos on his arms saying
“Krooks” and “Town.” He later testified he used to be part of the Krookstown tagging
crew from Compton.) Mr. Perez felt “nervous and scared,” but “just kept on ignoring
them,” because “I’m not into that no more.” It took him about 15 minutes to walk home.
He went inside for about five minutes to get a basketball, and then walked toward a
nearby park.
       As he was walking to the park, the black Hyundai “pulled over again and asked
me the same question, where I was from. And I kept on ignoring them.” Mr. Perez heard
voices inside the car say, “This is Segundos” and “Fuck Sans Street” and “Get out of my
hood.” Then, the driver told “those guys in the back” to “come out and get me.” By this
time, Mr. Perez’s friend had left and he was alone. “So they came towards me. One of



2      A fifth defendant, Noe Favela Salazar, was charged and tried in the stabbing
incident, but the jury did not reach a verdict in his case. Mr. Salazar and three others
were also charged with conspiring to dissuade witnesses from testifying, but those
charges were tried separately for security reasons.

                                             3
them [later identified as Mr. Zamora], came towards me and pulled me back while I was
running back home trying to get away.”
       “He pulled me back, and we started fighting. And some other guy [(later
identified as Mr. Sierra)] came out, the other guy from the other back came out. And the
guy that pulled me back [(Mr. Zamora)] was trying to stab me in my neck. While I was
trying to get rid of him, the other guy [(Mr. Sierra)] came and stabbed me in the side.”
One of the attackers said, “Fuck you. I hope you die.” Mr. Perez ran toward his house
and collapsed, telling several people there he had been stabbed by Segundos. He was
taken to a hospital where he had surgery and remained for nine days.
       An 11-year-old girl witnessed part of the incident. She saw two boys “beating up
another boy.” She said: “They were beating him up. And then they were kicking him in
the face, and one told him a bad word,” which was “bitch.” “They told him that he was
going to remember this, bitch.” One of them had something black in his hand. “They
just kept hitting him, and then the guy tried to push them away, but they didn’t let him.
And then they ran in the car, and there was a person in the front that was driving them.”
The car was black. “And then the guy, he just was walking to his house and he was
bleeding and he spit [blood] in front of my yard.”
       Deputy Leticia Reyes followed Mr. Perez to the hospital and talked to him in the
recovery room after his surgery. Mr. Perez was heavily sedated and in and out of
consciousness, but “he did talk to me a little bit.” When she asked him who stabbed him,
he “said he couldn’t remember who they were . . . but he knew they were from CVS.”
“He said he couldn’t – at that time he couldn’t tell me exactly who they were. But he
knew that if he could see, like, a picture of them, he would be able to see them or identify
them at a later time.” Mr. Perez later testified that he told Deputy Reyes that he “could
not identify” the person at that time, and he told her that “[b]ecause I was unconscious
and I couldn’t, like – I couldn’t remember nothing. Everything just went blank on me.”
Mr. Perez also told Deputy Reyes that “he did not see the weapon used in the incident
and that he did not know if he had been stabbed or shot.”



                                             4
       On June 7, 2011, two days after the stabbing, Detective Kasey Woodruff
interviewed Mr. Perez at the hospital and showed him two “six-packs” of photos.
Mr. Perez immediately identified Mr. Salazar from the first six-pack as “one of the guys”
involved in the stabbing. On a second six-pack, Mr. Perez noted that three of the
individuals in the photos (one of whom was Mr. Sierra) looked “familiar.”
       On June 13, 2011, Detective Woodruff brought additional six-packs of photos to
show Mr. Perez. One of them contained Mr. Zamora’s photo, and Mr. Perez picked out
Mr. Zamora’s photo “[f]airly quickly,” as the person who “was stabbing at [his] neck,”
the “first one that came out . . . .” One of the six-packs contained an updated photo of
Mr. Sierra. Mr. Perez again said Mr. Sierra “looked familiar, but . . . he was not sure.”
(At the trial, Mr. Perez identified Mr. Sierra as the person who stabbed him in the side.
He was certain, “[b]ecause he was just right in my face.” The other six-packs contained
photos of defendants Virto and Sandoval, who were not charged in the stabbing and
whom Mr. Perez did not recognize.)
       Two days later, Detective Woodruff showed Mr. Perez photos of a black Hyundai
and a knife that had been recovered from the black Hyundai, and Mr. Perez identified
them as being the car and knife used in the stabbing. No fingerprints were found on the
knife. The registered owner of the black Hyundai was Mr. Sierra’s mother.
       b.     The June 12, 2011 shooting of Raul Magallanes
       Raul Magallanes was at the corner of San Vincente Street and Orange, in
Paramount, in the late afternoon of June 12, 2011, when a black Hyundai with four
people in it approached and stopped. One of the four, later identified as defendant
Sandoval, got out of the rear seat on the passenger side, and approached Mr. Magallanes
with a firearm. Mr. Magallanes “turned around and I ran.” The person shot at
Mr. Magallanes three times, but Mr. Magallanes “dodged it” by “running through cars,
running through the streets, through parked cars.” The person with the gun ran after him,
and the car “kept going straight.” The assailant was wearing a black hat with an “S” on it
and a gray T-shirt.



                                             5
       Mr. Magallanes ran from the corner “to where my grandmother stays at to the next
house where I was staying at.” The shooter stopped following him when he ran into his
backyard. Mr. Magallanes saw the shooter run by his neighbor’s house, where about
eight people were gathered in front of the house. Mr. Magallanes waited in the backyard
for five or ten minutes “until the coast was clear,” and then went to the front.
       Olivia Magallanes, the victim’s sister, was outside talking to neighbors when the
shooting occurred. She saw her brother walking down Orange, saw the black car
approach and saw the shooter get out. The shooter chased her brother with the gun. Her
brother “started running down San Vincente and ran to the side of [her] house.” The
shooter ran past her, and after he passed, Ms. Magallanes called 911. (Ms. Magallanes
later testified that she noticed the black car because “they always harass my brother” and
“always hit him up,” meaning “[p]rovoking a fight.” By “they,” she meant defendants
Salazar, Sandoval and Zamora. She had seen them “hit up” her brother, in front of her
home, “a couple of months before the shooting,” and they were always in the same black
car as on the night of the shooting. (Defendant Sandoval, however, had been incarcerated
from October 5, 2010, until two days before the Magallanes shooting.)
       When Deputy Paul Klinefelter arrived after the shooting, Mr. Magallanes told him
that a rear passenger got out of the black car and “yelled out, ‘Fuck you,’ and withdrew a
black revolver from his waistband and shot at him approximately four to five times.” The
victim “recognized that car from a previous incident that he did not report that happened
two to three weeks prior.” Mr. Magallanes told Deputy Klinefelter that “the same car and
the same people inside the car shot at him previously.” (Mr. Magallanes later testified he
used to associate with the Sans Street gang, a rival of CVS, and he had been a member of
155, a gang in Compton.)
       Deputy Ted Gomez participated in a search of the area where the shooting
occurred. He found a gray T-shirt and a black or dark-colored cap “almost underneath
some shrubbery,” in back of a house on San Mateo. There was a firearm underneath the
shirt, “within the fold of the T-shirt.” The firearm was a Smith & Wesson revolver, later
found to have three expended casings and two live rounds.


                                              6
         The police found defendant Sandoval hiding underneath a truck in the driveway of
another home on San Mateo Street, and took him into custody. Deputy Reyes did a
gunshot residue examination of Mr. Sandoval’s hands and booked the sample into
evidence.
         Deputy Joel Andrade was driving in the vicinity of the crime scene and saw the
black Hyundai. He followed it and stopped it as it entered the city of Compton. He took
defendants Sierra (the driver), Virto (the front seat passenger) and Zamora (the rear
passenger) into custody, and placed them in his patrol car.
         Deputy Klinefelter took Mr. Magallanes to the place where Deputy Andrade was
holding defendants. As they pulled up, Mr. Magallanes saw the black car and said,
“That’s the vehicle. That’s it. That’s the right one.” (He later testified that he had been
approached by the same car five or six times in the past.)
         Then, the deputies brought the suspects out, one at a time. Mr. Magallanes
identified Mr. Virto right away, saying “That’s the guy in the front seat.” He also
identified Mr. Sierra immediately, saying that he was the driver, and similarly identified
Mr. Zamora, saying that he “was the other guy in the back seat.” (At trial,
Mr. Magallanes no longer remembered who he identified on the day of the shooting.)
         Deputy Klinefelter then took Mr. Magallanes to the place where defendant
Sandoval was detained, and Mr. Magallanes identified Mr. Sandoval, who was no longer
wearing the gray T-shirt and black cap, as the shooter. Mr. Magallanes also told
Detective Klinefelter that Mr. Sandoval “was the same person a few weeks prior that was
involved in the shooting.” (As indicated above, Mr. Sandoval was incarcerated at that
time.)
         Deputy Sergio Cosio talked to Olivia Magallanes at the crime scene. She told him
she had heard three to four shots. Deputy Cosio drove Ms. Magallanes in his patrol car to
two field show-ups. At the first, she identified Mr. Virto as the front passenger in the
black Hyundai, which she also identified. At the second show up, Ms. Magallanes
identified Mr. Sandoval as the shooter. (At the trial, Ms. Magallanes did not remember
ever identifying Mr. Virto.)


                                             7
       During the booking process, Mr. Sierra admitted he was a member of the CVS
gang, and Deputy Andrade recorded that on the booking sheet. Mr. Virto did not admit
he was from a gang, but admitted that he associated with the CVS gang, and Deputy
Andrade’s partner recorded that on his booking sheet. Mr. Virto denied having a
moniker. Mr. Virto had several CVS tattoos on the back of his head. Mr. Zamora said he
was affiliated with CVS and his moniker was Darky. When he was booked,
Mr. Sandoval told Deputy Reyes he was a member of the CVS gang. He had several
tattoos, including “Segundo” on his right leg and “Compton” on his left leg.
       Defendants Virto, Sierra, Sandoval and Zamora were charged with the attempted
willful, deliberate and premeditated murder of Raul Magallanes. The information also
contained firearm use and discharge allegations, and alleged defendants Sandoval and
Zamora were minors at the time of the offense.
       Defendants Sierra, Zamora and Salazar were charged with the attempted willful,
deliberate and premeditated murder of Andres Perez. The information alleged defendant
Zamora was a minor; defendants Zamora and Sierra personally used a deadly weapon (a
knife); and the three defendants personally inflicted great bodily injury upon the victim.
       The information also alleged both offenses were committed for the benefit of, at
the direction of, and in association with a criminal street gang.
2.     Other Evidence Presented at Trial
       Mr. Magallanes testified that about four weeks after the shooting, someone from
the Segundos approached him “to find out who was coming to court.” The person told
Mr. Magallanes “the little homies were just running amuck, out there being active.” The
person said “to figure stuff out and try not – for them not to come to court.” The person
said “he would pay money for people not to come to court.” The person also approached
Mr. Magallanes’s father. The person’s name was Joshua and the Segundos called him
“Sniper.”
       Detective Liliana Jara, who was an investigating officer in the Magallanes
shooting, also testified as a gang expert. Based on hypotheticals mirroring the facts of
the crimes charged, she opined that the Perez stabbing was committed for the benefit of,


                                              8
at the direction of, and in association with the CVS gang, and that the Magallanes
shooting was committed for the benefit of and in association with the CVS gang.
        Other evidence will be described in our discussion as necessary in connection with
the claims on appeal.
3.      The Discovery Violations
        The prosecution was continually late in turning over discovery. The trial court
denied a mistrial motion, but ordered continuances and held compliance and sanctions
hearings in an effort to ensure the defense could adequately prepare. The chronology is
this.
              Thursday, March 22, 2012
        A jury panel was sworn on March 22, 2012, and ordered to return for jury
selection on Monday, March 26. The court reviewed the status of ongoing issues relating
to recorded jailhouse conversations, in connection with alleged attempts to dissuade
witnesses from testifying. Despite previous court orders for transcription of tapes by a
Spanish translator by March 14, a tape with six hours of conversations was not turned
over by the prosecutor until March 20. Notwithstanding that, defense counsel announced
ready for trial; counsel did not request a continuance or exclusion. To the contrary,
Mr. Virto’s counsel “object[ed] to any continuance just for the record.”
        Defense counsel said they were “still missing numerous items with regard to
discovery,” including rap sheets of the victims; photographs of items from the crime
scene; and “any F.I.’s [(field identification cards)] they intend to use which relate to their
proof of the fact that their victims are gang members . . . .” As to the rap sheets, the
prosecutor said, “I ran them all and there’s nothing to turn over.” The prosecutor said she
had provided all counsel with “a list of all the discovery that I have” on October 17,
2011, and this was “the first I have heard that anyone is missing the photos” of items
from the crime scene. She also said this was the first time anyone had requested “victim
F.I.’s,” and undertook to check with her investigator before Monday, March 26 to see if
any existed. (Counsel for Mr. Virto later acknowledged she received victim F.I. cards on
March 29.)


                                              9
              Monday, March 26, 2012
       Counsel for defendant Zamora stated he received late discovery involving some
DNA results from the knife alleged to have been used in the Perez stabbing. The results
were inconclusive, and the prosecutor had not decided whether to introduce that DNA
evidence. Counsel asked for a continuance to have the DNA retested, or a sanction
excluding the DNA evidence. The court ordered the prosecutor to comply, by
Wednesday morning, March 28, with five discovery requests that would assist the
defense’s laboratory in determining whether to retest the DNA. The court denied
Mr. Zamora’s request for a continuance. Mr. Zamora’s counsel acknowledged the court
had “proposed a reasonable alternative to sanctions,” in that if the defense laboratory
needed additional time to retest, “the court will go dark on those days . . . .”
       One of defense counsel stated that “there are, apparently, as of today, F.I.’s that
we need to receive.” The court set April 5, 2012, for discovery compliance. Trial was
set to begin on April 9. That date for the start of trial had been decided in February, to
accommodate the schedules of defense counsel.
              Tuesday, March 27, 2012
       Mr. Sandoval’s counsel stated he had never gotten a gunshot residue report. The
prosecutor had recently discovered she had no report and the testing had not been
completed. Mr. Sandoval’s counsel said that, “[a]s long as I get it by the end of this
week, that’s fine.”
              Wednesday, March 28, 2012
       Jury selection was completed on March 28, and the court ordered the jury to return
on Monday, April 9 for the beginning of trial.
       The court set Monday, April 2, 2012, as the discovery compliance deadline for the
gunshot residue report. The prosecutor was “continuing to work” on the DNA-related
discovery requests for information needed by the defense’s laboratory; the court ordered
the information to be ready no later than 4:00 p.m. the next day, March 29, absent which
there would be a hearing on April 2, 2012, on sanctions for failure to comply with
discovery. (The prosecutor apparently complied with the court’s order, as there was no


                                              10
hearing on April 2 and no further complaint by defense counsel on the DNA or gunshot
residue items.)
               Tuesday, April 10, 2012
         On April 10, 2012, counsel for Mr. Zamora complained that he had not received a
copy of a fingerprint report on the knife. Other defense counsel could not remember
whether they had received the report. (The report showed no prints were developed on
the knife.) The prosecutor said she turned over the report last year, and asked for a
hearing later in the day to present her proof that she had turned everything over. The
court stated it would have the hearing at 3:00 p.m. the following day so the prosecutor
could present her proof, but Mr. Zamora’s counsel was ill that day and the hearing did not
occur.
               Wednesday, April 11, 2012
         The court announced that court would not be in session from Wednesday, April 11
(because of the illness of defense counsel) through and including Monday, April 16
(because of two funerals of victim Raul Magallanes’s family members).
         Defense counsel for Mr. Sandoval reported that the prosecutor had emailed him
two tapes the day before, of interviews with victim Raul Magallanes and his sister,
Olivia. The tapes had been in existence since June 13, 2011. The tape of Raul
Magallanes included a statement he had been convicted of a felony in Orange County.
Defense counsel did not know Mr. Magallanes had a rap sheet, which defense counsel
had previously requested.
         The prosecutor said she received the recordings the previous day from Detective
Jara; there had been a miscommunication with Detective Jara, who thought the
prosecutor already had them. The prosecutor turned them over immediately, and also
sent them out to be transcribed. The court ordered the prosecutor to turn over
transcriptions to the defense by Friday, April 13, at 3:00 p.m. Counsel for Mr. Zamora
later confirmed he was provided with transcripts of the two Magallanes interviews on
Friday, April 13.



                                             11
       As for the rap sheet, the prosecutor reaffirmed the CLETS printout showed no
convictions. The following day, under cross-examination by Mr. Sandoval’s counsel,
Mr. Magallanes admitted that he had been arrested and convicted of a grand theft auto in
Orange County five years before. When counsel then asked about other convictions, the
court held a sidebar. The prosecutor showed the court a CLETS printout dated March 21,
2012, which did not show any convictions, and said that “Detective Jara also ran him and
she said she didn’t find anything.” The court called Mr. Magallanes to the sidebar, and
he told the court his only other conviction was for being under the influence of
methamphetamine. There was no further controversy about the rap sheet.
               Tuesday, April 17, 2012
       On Tuesday, April 17, 2012, at a recess during victim Raul Magallanes’s cross-
examination, the prosecutor told the court that Detective Jara had just told her during a
break that “there are recorded interviews of Olivia and Raul [Magallanes] regarding the
witness intimidation by Joshua Garcia. I didn’t know that these recordings existed until
now. Detective Jara thought she had given them to me.”
       The court ordered the prosecutor to turn over the interviews at the end of the day,
and scheduled a hearing for 9:00 a.m. the following morning to consider the defense
request for discovery sanctions. The court said it would not excuse Mr. Magallanes as a
witness, so the defense could cross-examine him based on the tapes, and that the court
would give a late discovery instruction, “not just concerning this, but the other discovery
. . . concerning Mr. Magallanes’s initial interview so that the jurors will know. And there
is a jury instruction that I plan to notify the jury of that.”
       At the end of the April 17 session, the prosecutor said that she had gone over with
Detective Jara “right now all of the recordings that exist in the case, and there is nothing
else. Everything else has been turned over.”
               Wednesday, April 18, 2012
       The court held a lengthy hearing on the defense motion for sanctions for the late
disclosure of the recordings of the three interviews of Olivia and Raul Magallanes. The



                                                12
recordings were 35 to 40 minutes in length, and the interviews had occurred in September
2011.
        Defense counsel summarized the recordings for the court. The recordings were
pertinent to the prosecution’s evidence that another gang member known as “Sniper” had
tried to dissuade witnesses from testifying to the crimes against Mr. Magallanes. One of
the recordings revealed that Raul Magallanes knew Sniper (defendant Joshua Garcia, who
was tried separately) and “became sort of friendly with Sniper” when they were in county
jail together, so Magallanes had “mixed feelings,” and “wasn’t really that taken [aback]”
by Sniper’s actions in allegedly attempting to dissuade witnesses from testifying.
        The defense moved for a mistrial. The court denied the motion, saying in
pertinent part: “The dissuading count is not part of this case. . . . [¶] . . . [¶] [T]he
additional turned over recordings yesterday [do] not go to the underlying charge . . .
which is the attempt[ed] murder. It only goes to . . . whether or not Mr. Magallanes was
in any way dissuaded or felt pressured by another individual approaching his family
members. But it does not go to the underlying charges of this case.” “It basically goes to
your ability to attack the credibility . . . of the witness, who is still available, who’s still
on cross-examination, and the tape recordings are only 35 to 40 minutes.”
        Counsel agreed that a week’s continuance would be adequate. The court granted a
continuance until Monday, April 23, 2012, saying: “The Court is ordering the People to
prepare transcripts of the three additional tape recordings of Victim Magallanes and his
sister, Olivia Magallanes, and have them to all defense counsel by 3:00 p.m. . . . Friday,
April 20th . . . .”
                Monday, April 23, 2012
        Mr. Magallanes’s cross-examination continued on April 23. On redirect, the
prosecutor elicited testimony that, between the previous week and April 23,
Mr. Magallanes had been relocated.
        At the next recess, the court inquired about Mr. Magallanes’s relocation and
whether the defense had been informed. They had not. Detective Jara told the court she
applied for the witness relocation on Thursday of the previous week (April 19) because


                                                13
Mr. Magallanes told her “he was afraid and he wanted to be moved.” The defense
objected they had not been told of his relocation, and the court agreed the defense should
have been informed before Mr. Magallanes took the stand that morning.
       The defense again moved for a mistrial. The motion was denied.
              Wednesday, April 25, 2012
       On redirect examination, Olivia Magallanes testified that she had seen the black
Hyundai in the past, “when they tagged on my house,” but did not see who was in it. She
said she thought there was a police report on that day. (This occurred on January 22,
2011, before the shooting incident.) At the noon recess, defense counsel asked for the
police report Ms. Magallanes mentioned, saying “we need to know whether she identified
anyone and whom at that time.” The court asked Detective Jara to obtain any police
reports on the incident. The prosecution turned over the report during the recess. The
prosecutor also observed that “everything mentioned by Ms. Magallanes regarding the
vandalism is also part of her recorded interview from June 13th, and all counsel have that
interview and the transcripts.”
              Tuesday, May 1, 2012
       On April 23, 2012, the prosecutor had emailed a three-minute YouTube video to
defense counsel. The video was “all about Compton Varrio Segundos,” with photos of
monikers of the defendants and tagging; the video named the gang’s rivals and was “full
of their symbols.” The video was uploaded in 2009; the prosecutor said that “the
comments on the video were as recent as . . . about two weeks ago.” The prosecutor’s
April 23 email said that Detective Jara “found this video on You Tube over the
weekend.”
       On May 1, 2012, the defense objected to use of the video. The court refused to
allow the prosecutor to show the video but allowed the prosecution to use certain still
photographs taken from the videos, depicting CVS gang symbols and the like, finding
them relevant to corroborate Detective Jara’s expertise.




                                            14
       The court later instructed the jury on the prosecution’s late disclosure of the
recordings of the June 13, 2011 and September 7, 2011 interviews with Raul and Olivia
Magallanes, as quoted in the margin.3
4.     The Verdicts and Sentencing
       The jury convicted defendants Virto, Sandoval, Zamora and Sierra of attempted
willful, deliberate, and premeditated murder in the Magallanes shooting. The jury found
true the allegations that Mr. Sandoval personally and intentionally used and discharged a
firearm, and, with respect to defendants Virto, Zamora and Sierra, that a principal did so.
       In the Perez stabbing, the jury convicted defendant Zamora of attempted murder,
and convicted defendant Sierra of attempted willful, deliberate and premeditated murder.
The jury found true the allegations defendants Zamora and Sierra personally used a
deadly weapon, a knife, and also that defendant Sierra personally inflicted great bodily
injury on the victim.
       The gang allegations were found true as to both crimes.
       Defendants Sandoval and Zamora filed motions for a new trial, based in part on
the prosecution’s discovery violations. In denying Mr. Zamora’s motion, the trial court
observed: “[T]he court had an opportunity to listen to the recordings, to review the
transcript of the recordings. And it is the court’s interpretation that the recordings,
although they were turned over late, were, 1, in no way exculpatory in this case, and 2,
did not amount even to significant impeachment of the witnesses in this case.” And:
“The court is certain that with the experience and expertise of the defense attorneys, if
they felt the recordings . . . were in any way exculpatory or amounted to significant



3      “Both the People and the defense must disclose their evidence to the other side
before trial, within the time limits set by law. Failure to follow this rule may deny the
other side the chance to produce all relevant evidence, to counter opposing evidence, or
to receive a fair trial. [¶] An attorney for the People failed to disclose: the recordings of
interviews of Raul Magallanes and Olivia Magallanes from June 13, 2011 and
September 7, 2011 within the legal time period. [¶] In evaluating the weight and
significance of that evidence, you may consider the effect, if any, of that late disclosure.”


                                              15
impeachment of the witnesses, they would have brought that out during their questioning
on cross examination.”
       The court also addressed Mr. Zamora’s complaint about late discovery of the
police report on the January 22, 2011 vandalism at Olivia Magallanes’s home. The court
noted that the police report showed Ms. Magallanes did not indicate she was able to
identify the individuals and her description of the car “was not even that great of a
description . . . .” The court said the defense had a full opportunity to cross-examine
Ms. Magallanes “on the car’s description, on her ability to identify any of the individuals
at the time she gave the vandalism reports to the police officers. [¶] . . . [N]or did the
defense request additional time after they received the police reports to conduct their
investigation.”
       The court sentenced defendant Virto to life in prison with a minimum term of
15 years, plus 20 years consecutive, and likewise sentenced defendant Sandoval to
15 years to life, plus 20 years consecutive. The court sentenced defendant Zamora to
state prison for an aggregate term of 43 years to life, and sentenced defendant Sierra to an
aggregate term of 51 years to life. The court imposed restitution fines of $240 in each
case, and made other orders not at issue in these appeals.
       Defendants filed timely appeals that were later consolidated.
                                      DISCUSSION
1.     The Discovery Violations
       Defendants contend the trial court’s denial of their mistrial motions, as a sanction
for the prosecutor’s discovery violations, deprived them of due process of law. We find
no error by the trial court.
       a.      The law
       In People v. Verdugo (2010) 50 Cal.4th 263 (Verdugo), the Supreme Court
described the requirements of Penal Code section 1054.1, a part of the reciprocal-
discovery statute.4 Section 1054.1 requires the prosecution to disclose to the defense

4      All statutory references are to the Penal Code unless otherwise specified.


                                             16
various 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.]” (Verdugo, at pp. 279-280.) Evidence subject to disclosure
includes statements of defendants, real evidence obtained as part of the investigation of
the offenses charged, written or recorded statements of witnesses, and so on. (Id. at
p. 280.) “ ‘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. [Citation.]’
[Citation.]” (Ibid.)
       If the prosecutor has not complied with section 1054.1 (and the defense has
complied with informal discovery procedures), the trial court “may make any order
necessary to enforce the provisions” of the statute, “including, but not limited to,
immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the matter, or any other
lawful order.” (§ 1054.5, subd. (b).) In addition, the court may “advise the jury of any
failure or refusal to disclose and of any untimely disclosure.” (Ibid.) “A violation of
section 1054.1 is subject to the harmless-error standard set forth in People v. Watson
(1956) 46 Cal.2d 818, 836. [Citation.]” (Verdugo, supra, 50 Cal.4th at p. 280.)
       “We generally review a trial court’s ruling on matters regarding discovery under
an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the
exercise of its discretion, “consider a wide range of sanctions” in response to the
prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000)
23 Cal.4th 225, 299.)
       b.     This case
       Here, we find the trial court provided an adequate remedy for the late disclosure of
evidence, and the defendants do not demonstrate prejudice, so there is no basis for
reversal of the judgment.
       We first address the late disclosure of recorded interviews with Olivia and Raul
Magallanes – the two June 2011 interviews, disclosed on April 10 after opening
statements, and the three September 2011 interviews, disclosed during the cross-


                                             17
examination of Mr. Magallanes. From these recordings, defendants found that
Mr. Magallanes had a prior felony conviction, and that he and Sniper were “friends from
their time in jail together, undermining Magallanes’s testimony the encounter with Garcia
[(Sniper)] made him fear for his family’s safety.”
        Defendants each generally argue the failure to timely disclose those interviews
deprived them of sufficient time to investigate, and they could not effectively cross-
examine witnesses because of the late disclosure. Notably, none of their contentions is
anything more than a generality, not a demonstration of prejudice. None of defendants
explains why the trial court’s remedies for the violations were inadequate. The defense
had five days to consider its tactics after it learned of Raul Magallanes’s felony
conviction. As for the September 2011 recordings not disclosed until Mr. Magallanes
was already being cross-examined on Tuesday, April 17, defendants do not explain why
the continuance the court ordered – to Monday, April 23 – was inadequate for their
investigation and preparation for further cross-examination.
        As Verdugo tells us, “generalized statements are insufficient to demonstrate
prejudice.” (Verdugo, supra, 50 Cal.4th at p. 282; id. at pp. 281-282 [defendant asserted
without elaboration that he “ ‘could not properly or effectively prepare for cross-
examination of witnesses,’ that ‘his ability to impeach the witness[] was adversely
impacted,’ and that ‘[t]imely disclosure of the information would have enabled counsel to
adjust his theory of the case to fit the facts”; defendant “does not explain what counsel
would have done differently if the notes had been disclosed sooner”].) The same is true
here.
        Defendants cite other instances of late disclosure of evidence: the DNA evidence
(which was inconclusive); the gunshot residue evidence (which was thoroughly discussed
by experts on both sides); the fingerprint report on the knife (there were no fingerprints);
F.I. cards showing the victims were gang members (received by the defense 10 days
before testimony began); a comment by Detective Jara in one of the late-disclosed
Magallanes interviews that she intended to check the crime scene area for bullet strikes (a
point on which she was cross-examined extensively); the relocation of Raul Magallanes a


                                             18
few days before his testimony; still photographs from a YouTube video of the CVS gang
(which the prosecution discovered online during the trial); and a police report on
vandalism at the Magallanes home that occurred several months before the crimes.
       Of these, the last mentioned is the only one as to which defendants even attempt to
show prejudice, and they do not succeed. Defendant Zamora complains the police report
showed Olivia Magallanes did not identify anyone in connection with the pre-crime
vandalism, and yet she identified Mr. Zamora in court on April 24 as one of those who
were “always harass[ing] my brother.” Mr. Zamora asserts this identification “surprised”
the defense, and if counsel had known that Olivia Magallanes might be able to identify
Mr. Zamora, “he would have investigated the vandalism incident and found witnesses to
show that [Mr. Zamora] was not involved in it.” But Ms. Magallanes expressly testified
she did not see who was in the black Hyundai when they tagged her house, the police
report likewise showed she did not identify anyone in that incident, and Ms. Magallanes
discussed the vandalism incident in the recorded interview the defense was given on
April 10 (with transcriptions on April 13). In short, contrary to Mr. Zamora’s suggestion,
there was no “surprise” engineered by the prosecutor and, as the trial court pointed out,
the defense had a “full opportunity to cross-examine [Ms. Magallanes] on that issue . . . .”
       In short, defendants have shown no prejudice, and no abuse of discretion, from the
trial court’s choice of remedies for the discovery violations in this case.
2.     The Aiding and Abetting Issues
       Defendants Virto, Zamora and Sierra raise several issues relating to aiding and
abetting. They contend the instructions on aiding and abetting were not a proper
statement of the applicable law; the trial court erred in its answer to a question from the
jury on the issue; and the evidence in the Magallanes shooting was insufficient to
establish aiding and abetting attempted murder.
       a.     The instructions and the jury’s question
       During their deliberations, the jury asked this: “Can we find that a defendant
aided and abetted if we only believe they facilitated a getaway?”



                                             19
       After hearing argument, the court answered the question this way: “Review
evidence concerning aiding and abetting and jury instructions 400, 401 as to aiding and
abetting[.] As to the necessary intent for aiding and abetting review instructions 600 and
601. If you need further clarification please let the court know.”
       On appeal, defendants contend the trial court erred in its answer to the jury. They
assert the correct answer to the question was “no”; that “[e]ven if the pattern instructions
are generally correct, they were not a proper statement of the law applicable to this case”;
and that when the jury asked its question, the court had a sua sponte duty to give a
supplemental instruction “to clarify that aiding and abetting must occur before or during
the attempted murder, and that the duration of attempted murder ended when the shots
were fired.” We disagree on each point.
       The legal principles are plain. Under section 1138, when the jury “desire to be
informed on any point of law arising in the case, . . . the information required must be
given . . . .” People v. Beardslee (1991) 53 Cal.3d 68 tells us that the court “has a
primary duty to help the jury understand the legal principles it is asked to apply,” but
“[t]his does not mean the court must always elaborate on the standard instructions.
Where the original instructions are themselves full and complete, the court has discretion
under section 1138 to determine what additional explanations are sufficient to satisfy the
jury's request for information.” (Id. at p. 97.)
       First, there is no merit in defendant Virto’s contention that the initial instructions
on aiding and abetting were incorrect because they impermissibly allowed jurors to find
him guilty of attempted murder if they found he “only facilitated after the fact by
facilitating the getaway . . . .” That simply is not so.
       The crime of attempted murder was defined: “[T]he People must prove that:
[¶] 1. The defendant took at least one direct but ineffective step toward killing another
person; [¶] AND [¶] 2. The defendant intended to kill that person.” The court further
instructed that, to prove the defendant is guilty based on aiding and abetting the crime,
the People had to prove that: “1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or


                                              20
during the commission of the crime, the defendant intended to aid and abet the perpetrator
in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact
aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a
crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.” (Italics added.) Thus the instructions plainly
required the jury to find that the defendants intended to aid and abet “[b]efore or during
the commission of the crime.”
       Next, defendants assert that the jury’s question “demonstrated jurors did not
understand the duration of the crime of attempted murder,” generating a sua sponte duty
of the court “to clarify that aiding and abetting must occur before or during the attempted
murder . . . .” Virto asserts the absence of this clarification freed the jury to convict
“even if they concluded Virto did nothing more than facilitate the getaway.” Again, we
disagree.
       As we have just observed, the instructions clearly defined the crime of attempted
murder, and we see nothing in the jury’s question that indicated any confusion on the
timing or duration of the crime of attempted murder. And, defendants did not ask the
trial court to explain “the duration of attempted murder in the context of aiding and
abetting.” There is no sua sponte duty to “clarify” an instruction that is correct in law,
and indeed that expressly required the jury to assess an aider and abettor’s intent
“[b]efore or during the commission of the crime . . . .”
       In any event, the trial court carefully considered the jury’s question, and
determined that it should “reiterate the instructions already given” (People v. Beardslee,
supra, 53 Cal.3d at p. 97). This was not error. The court’s answer properly remained
neutral, referring the jury to the applicable instructions – which plainly required them to
find intent to aid and abet the perpetrator “[b]efore or during the commission of the




                                              21
crime” – and giving the jury the option of asking for further clarification if the court’s
answer did not suffice. There was no abuse of discretion here.5
       b.     Sufficiency of the evidence
       Defendant Virto contends the evidence was insufficient as a matter of law to prove
he aided and abetted attempted murder.
       The principles governing judicial review of a claim of insufficient evidence have
been repeated many times. “[T]he 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.” (People v.
Johnson (1980) 26 Cal.3d 557, 578.) “The standard is the same under the state and
federal due process clauses.” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294
(Gonzales).) “We presume ‘ “in support of the judgment the existence of every fact the
trier could reasonably deduce fromthe evidence.” [Citation.] This standard applies
whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Prince
(2007) 40 Cal.4th 1179, 1251.)
       “ ‘To prove that a defendant is an accomplice . . . the prosecution must show that
the defendant acted “with knowledge of the criminal purpose of the perpetrator and with
an intent or purpose either of committing, or of encouraging or facilitating commission
of, the offense.” [Citation.] When the offense charged is a specific intent crime, the

5      Defendant Zamora also contends the court erred in responding to another question
from the jury: “Can a fist fight be considered an object to cause serious bodily injury?”
The court responded: “Review evidence for great bodily injury and review jury
instruction 3160 for law on great bodily injury.” On appeal, Mr. Zamora (the defendant
who tried unsuccessfully to stab victim Perez) says he “asked that the jury be told that he
could be held accountable only if the stabbing were a probable consequence of the fight
between himself and Perez,” and he “wanted instructions on intervening cause.”
Mr. Zamora is mistaken. While his counsel did tell the clerk, when he was advised the
jury had questions, that he wanted “something about an intervening act,” counsel said no
more about it when he appeared telephonically before the court to discuss the answers to
be given. Mr. Zamora’s failure to argue or object in the trial court forfeits his claim, and
in any event, it is hard to see how the jury’s question – whatever it meant – had any
application to defendant Zamora.

                                             22
accomplice must “share the specific intent of the perpetrator”; this occurs when the
accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the perpetrator’s commission of
the crime.” [Citation.]’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
       Mr. Virto points out that “ ‘[t]he mere presence of the accused at the scene of the
crime does not alone establish that the accused was an abettor’ ” (People v. Joiner (2000)
84 Cal.App.4th 946, 967), and asserts the evidence shows only that he was present in the
front passenger seat, knew a crime was being committed and did not prevent it.
Mr. Zamora, who was in the back seat next to the shooter (and driver Sierra, who slowed
the car to allow the shooter to get out), both make a similar argument, each claiming
“[t]here was not proof that he knew the shooter would exit the car and shoot, or that he
shared the shooter’s intent to kill.” We disagree.
       Mere presence at a crime scene is not enough, but it is a factor the jury may
consider along with all the other circumstances. (People v. Miranda (2011)
192 Cal.App.4th 398, 407 [“ ‘[W]hile mere presence at the scene of an offense is not
sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a
finding that an accused was a principal.’ ”]; People v. Joiner, supra, 84 Cal.App.4th at
p. 967 [“ ‘To be an abettor the accused must have instigated or advised the commission
of the crime or been present for the purpose of assisting in its commission.’ ”].)
“ ‘ “[C]ompanionship, and conduct before and after the offense” ’ are also relevant to
determining whether a defendant aided and abetted a crime.” (Miranda, at p. 407.)
       Here, there was other evidence from which a reasonable jury could have inferred
defendants intended to facilitate defendant Sandoval’s murderous attack on
Mr. Magallanes. The evidence established that all four defendants in the black Hyundai
on the evening of the shooting were CVS gang members. Testimony from Raul and
Olivia Magallanes showed that CVS gang members in the past had repeatedly harassed
Mr. Magallanes, who was or had been a member of a rival gang and who lived in CVS
gang territory. On one of those occasions, CVS gang members shot at Mr. Magallanes.
On that occasion, the gang members were in the same black Hyundai, and


                                              23
Mr. Magallanes said he had been approached by that same car five or six times. And
while Mr. Magallanes’s trial testimony was contradictory on the point, Deputy
Klinefelter testified that Mr. Magallanes told him that “the same car and the same people
inside the car shot at him previously.”
          On the occasion of the Magallanes shooting, the four defendants drove to
Mr. Magallanes’s neighborhood, and found him walking near his home. One of the four
gang members in the car (Sandoval) was carrying a loaded revolver, and it was either in
his waistband or, as Mr. Magallanes testified, “[h]e already had it on his lap,” “in his
hand” when he got out of the car. The three defendants remaining in the car fled the
scene together after the shooting, but were still in the car in the general area when they
were apprehended. There was also testimony about gang culture, and that it was “very
important” to have other gang members present at a crime to “support[] the guy and also
hav[e] a witness to what the other gang member is committing.”
          In short, the evidence showed far more than Mr. Virto’s “mere presence” at the
crime scene. We reject his assertion there was no evidence he participated in or knew of
the earlier incidents targeting Mr. Magallanes, or that he knew Mr. Sandoval had a gun,
or “as a passenger, was part of any plan.” On the contrary, from the evidence we have
recited, the jurors could reasonably infer that Mr. Virto, as well as the other defendants in
the car, not only knew of, but also shared and facilitated Mr. Sandoval’s murderous
intent.
3.        Sufficiency of the Evidence of Premeditation and Deliberation
          Defendants Zamora and Sierra contend there was insufficient evidence of
premeditation and deliberation in the Magallanes shooting, and Sierra (who inflicted the
stab wounds on victim Perez) makes the same claim as to the stabbing of Mr. Perez.
Both defendants contend there was insufficient evidence of their intent to kill in the Perez
stabbing. We see no deficiency in the evidence.
          a.    The legal principles
          We have already recited the principles governing substantial evidence.



                                              24
       Attempted murder requires “the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) “A defendant’s intent is rarely susceptible of direct proof,
and may be inferred from the facts and circumstances surrounding the offense.” (People
v. Felix (2009) 172 Cal.App.4th 1618, 1624.)
       Premeditation means “ ‘considered beforehand’ ” (People v. Mayfield (1997)
14 Cal.4th 668, 767 (Mayfield), disapproved on another point in People v. Scott (2015)
61 Cal.4th 363, 390, fn. 2), and deliberation means a “ ‘careful weighing of
considerations in forming a course of action . . . .’ ” (People v. Solomon (2010)
49 Cal.4th 792, 812). “The process of premeditation and deliberation does not require
any extended period of time.” (Mayfield, at p. 767 [the true test of premeditation is the
extent of the reflection, not the length of time].) “ ‘Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly.’ ” (Ibid.) “The
act of planning—involving deliberation and premeditation—requires nothing more than a
‘successive thought[] of the mind.’ [Citations.]” (People v. San Nicolas (2004)
34 Cal.4th 614, 658.)
       “Courts often use the three factors set forth in People v. Anderson (1968)
70 Cal.2d 15 as a guide to analyzing whether there is substantial evidence of
premeditation and deliberation. (Id. at pp. 26-27.) Those three factors are: (1) planning
activity (i.e., facts about what defendant did prior to the killing that show he was engaged
in activity directed toward killing); (2) motive (i.e., facts about the defendant’s prior
relationship with the victim from which the jury could reasonably infer a motive to kill
the victim); and (3) method (i.e., facts about the manner of the killing from which the
jury could reasonably infer that defendant had a preconceived design to take the victim’s
life in a particular way). (Ibid.)” (People v. Shamblin (2015) 236 Cal.App.4th 1, 10.)
The Anderson factors provide “a helpful synthesis of prior case law,” but are not
prerequisites for proving premeditation and deliberation, “nor must the factors ‘ “be
present in some special combination or . . . be accorded a particular
weight.” ’ [Citation.]” (Id. at p. 10 & fn. 16.)


                                              25
       b.      The Magallanes shooting
       Defendants Zamora and Sierra contend the evidence was insufficient to support
their convictions of attempted willful, deliberate, and premeditated murder in the
Magallanes shooting. They insist also that the prosecution did not prove their intent to
kill. We have already rejected the latter claim (pt. 2.b., ante), to the extent they claim
there was no proof they shared defendant Sandoval’s murderous intent. To the extent
they contend the evidence “showed beyond dispute” that defendant Sandoval “made no
effort to actually injure [Mr. Magallanes],” because “[n]o bullet strikes were found” and
Mr. Magallanes “was not injured” in this or the previous incident, the claim is frivolous.
The evidence plainly showed Mr. Sandoval shot at Mr. Magallanes three times, and
indeed pursued Mr. Magallanes while he was shooting at him. Olivia Magallanes
testified she saw the shooter pointing the gun at her brother’s upper body and “chasing
my brother with the gun, shooting at my brother.” (See People v. Smith (2005) 37
Cal.4th 733, 742 [“the very act of firing a weapon ‘ “in a manner that could have inflicted
a mortal wound had the bullet been on target” ’ is sufficient to support an inference of
intent to kill”].)
       Mr. Zamora contends his conviction should be reduced to simple attempted
murder, because the evidence at trial “showed a sudden confrontation that was entirely
spontaneous and not planned in any way.” He says there was no evidence of the
planning, motive and method factors that Anderson used for establishing premeditation
and deliberation. Mr. Sierra makes a similar argument. We do not agree.
       The evidence established gang rivalry as the motive for the shooting; all four
defendants were members of the CVS gang and the victim associated with a rival gang.
       The evidence likewise supported planning activity directed toward killing
Mr. Magallanes. In the months before the shooting, Mr. Magallanes had five or
six encounters with the black Hyundai; someone in the car would always say something
disrespectful. “Either they would dis my neighborhood or they would say ‘Fuck you’ or
something.” Mr. Magallanes testified he feared there would be a fight or a shooting. The
evidence showed defendants Sierra, Zamora, Salazar and a fourth person came to


                                             26
Mr. Magallanes’s house with a gun three or four weeks earlier, calling out their gang
name and trying to get Mr. Magallanes to come outside; when he did not, they hurled
insults, leaving when Olivia Magallanes threatened to call the police. Defendant Zamora
came to Mr. Magallanes’s house in the same black car on another occasion with two
other people; Mr. Magallanes, who was with his cousin, ran inside and the cousin had a
loud exchange of words with the people in the car until Olivia Magallanes told the cousin
to come inside. On still another occasion, one or two weeks before the shooting,
someone in the same black car tried to shoot Magallanes.
       Finally, the evidence described above, along with the evidence of what happened
on the evening of the shooting, allowed the jury to “reasonably infer that . . . defendant[s]
had a preconceived design to take the victim’s life in a particular way.” (People v.
Shamblin, supra, 236 Cal.App.4th at p. 10.) On the evening of the shooting, defendants
armed themselves with a revolver and again drove to Mr. Magallanes’s neighborhood in
the black car. They slowed when they saw him, allowing defendant Sandoval to get out
of the car. Defendant Sandoval pointed the gun at Mr. Magallanes’s upper body, and
pursued him with the gun, firing multiple shots at him.
       In short, the facts we have recited provide substantial evidence of premeditation
and deliberation. We are in no doubt that a reasonable jury could infer from these facts
that defendants planned to kill Mr. Magallanes, had a motive to do so, and attempted to
do so in a manner calculated to result in his death.
       c.     The Perez stabbing
       Defendant Zamora contends, in a one-paragraph argument, the prosecution failed
to show an intent to kill Perez. As he describes it, there was “a scuffle” with Mr. Perez;
he (defendant Zamora) pulled a knife which Mr. Perez parried; and Mr. Zamora was
about to lose the fight when defendant Sierra came to his rescue. That rendition of the
facts omits most of the evidence, from which (as discussed below) intent to kill may
reasonably be inferred.
       Defendant Sierra, who inflicted the knife wound, contends the evidence was
insufficient to show intent to kill, premeditation and deliberation. He contends there was


                                             27
no evidence of any of the Anderson factors; that his action in “join[ing] the fray” was
“sudden and responsive to the escalation” that occurred when defendant Zamora brought
out a knife during the “initial fist fight”; and that a single stab wound to the side “does
not evince an intent to kill.” Defendant is mistaken.
       We have described the evidence in part 1.a. of the facts, ante, and will not repeat it
in detail here. That evidence plainly allows the inference that Zamora and Sierra
intended to kill Mr. Perez, and that Mr. Sierra acted with premeditation and deliberation
in his attempt to do so. Defendants, driving in the black Hyundai, pulled over and
accosted Mr. Perez, asking about his visible tattoos and gang affiliation. Some
20 minutes later, the black Hyundai pulled over again; this time, voices in the car said,
“This is Segundos” and “Fuck Sans Street” and “Get out of my hood,” and then the driver
told the backseat passengers to “come out and get [the victim].” That is clear evidence of
motive – gang animus toward other gangs – as well as planning; 20 minutes elapsed
before the black Hyundai approached the victim for the second time and the driver
instructed defendants Zamora and Sierra to “get” the victim. This is substantial evidence
of planning.
       Further, the evidence showed Mr. Perez tried to run away and Mr. Zamora pulled
him back; it also showed Mr. Zamora tried to stab the victim in the neck with a knife.
The evidence also supported the inference that Mr. Sierra had a “preconceived design” to
take the victim’s life with the method he used: when he saw his cohort was not
succeeding in the attack on Mr. Perez, he approached with a knife and stabbed Mr. Perez
in the side – a stabbing that resulted in serious injuries requiring surgery and a nine-day
hospitalization. And, one of the two said, “Fuck you. I hope you die,” before they fled in
the black Hyundai. In short, as with the Magallanes shooting, the circumstances
surrounding the Perez stabbing permit the inference that defendants planned to kill
Mr. Perez, had a motive to do so, and attempted to do so in a manner calculated to result
in his death.




                                              28
4.     The Refusal to Instruct on Lesser Included Offenses
       a.     Attempted voluntary manslaughter
       Attempted voluntary manslaughter is a lesser included offense of attempted
murder. A person who unsuccessfully attempts to kill another, and who does so “with the
intent to kill which was formed in a heat of passion or which arose out of an honest but
unreasonable belief in the necessity of self-defense,” is guilty of attempted voluntary
manslaughter rather than attempted murder. (People v. Van Ronk (1985) 171 Cal.App.3d
818, 820, 824-825.)
       “The trial court has a duty to instruct the jury sua sponte on all lesser included
offenses if there is substantial evidence from which a jury can reasonably conclude the
defendant committed the lesser, uncharged offense, but not the greater.” (People v.
Brothers (2015) 236 Cal.App.4th 24, 29.) “Substantial evidence is evidence sufficient to
‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find
persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; see People v.
Breverman (1998) 19 Cal.4th 142, 162 [“the existence of ‘any evidence, no matter how
weak’ will not justify instructions on a lesser included offense”].) “This instructional
requirement ‘ “prevents either party, whether by design or inadvertence, from forcing an
all-or-nothing choice between conviction of the stated offense on the one hand, or
complete acquittal on the other. Hence, the rule encourages a verdict, within the charge
chosen by the prosecution, that is neither ‘harsher [n]or more lenient than the evidence
merits.’ ” ’ ’ ” (Brothers, at pp. 29-30.) “We review the trial court’s failure to instruct on
a lesser included offense de novo [citations] considering the evidence in the light most
favorable to the defendant [citations].” (Id. at p. 30.)
       Defendants Sierra and Zamora requested an instruction on attempted voluntary
manslaughter in connection with the Perez stabbing count. They argued that, on cross-
examination, Mr. Perez gave a “secondary version” of events that was consistent with
attempted voluntary manslaughter: that Mr. Perez was not afraid of defendants and
“stood there challenging the defendants”; that Zamora got out of the car; the two engaged



                                              29
in a physical fight, exchanging blows, after which Zamora pulled out a knife and tried to
stab Mr. Perez; and then defendant Sierra came up from behind and stabbed Mr. Perez.
       After considerable argument on the point, and taking the matter under
consideration, the trial court ultimately refused to instruct on attempted voluntary
manslaughter. We find no error.
       According to defendant Sierra, testimony from Mr. Perez supported the theory that
Sierra’s actions “were in defense of others – Zamora – or upon the heat of passion
provoked by the sight of his friend being beaten.” Defendants’ contentions depend upon
the mistaken notion that the testimony shows Mr. Perez challenged the occupants of the
car to a fight. It does not.
       First, Mr. Zamora’s assertion that Mr. Perez said, “come on out,” is wrong. There
is no such testimony. Second, the claim that Mr. Perez’s testimony supports the claim
that he “challeng[ed] [Zamora] to a fight” is a mischaracterization of the testimony.
       Like the trial court, we see nothing in Mr. Perez’s testimony from which a
reasonable juror could conclude that this incident began as “mutual combat.” Mr. Perez’s
testimony was consistent throughout that he did nothing more than defend himself after
Zamora pulled him back when he tried to run away. “[A]s used in this state’s law of self-
defense, ‘mutual combat’ means not merely a reciprocal exchange of blows but one
pursuant to mutual intention, consent, or agreement preceding the initiation of
hostilities.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.)
       Moreover, so far as Mr. Zamora is concerned, imperfect self-defense is not an
available defense, because he was the initial aggressor. (See People v. Seaton (2001)
26 Cal.4th 598, 664 [“Because . . . defendant’s testimony showed him to be the initial
aggressor and the victim’s response legally justified, defendant could not rely on
unreasonable self-defense as a ground for voluntary manslaughter.”]
       There is likewise no testimony from which a reasonable juror could conclude that
Mr. Perez did anything inflammatory to provoke anyone in the car, or that Sierra acted
“upon the heat of passion provoked by the sight of his friend being beaten.” (See People
v. Lee (1999) 20 Cal.4th 47, 60 [“Theprovocation must be such that an average, sober


                                             30
person would be so inflamed that he or she would lose reason and judgment. Adequate
provocation and heat of passion must be affirmatively demonstrated.”].) There was no
basis for an instruction on attempted voluntary manslaughter.
       b.     Assault with a deadly weapon
       Defendant Zamora also argues the court erred in refusing to instruct on assault
with a deadly weapon, as to both the Magallanes shooting and the Perez stabbing,
“[s]ince there was evidence that the incidents charged in this case were assaults and not
attempted murders . . . .” There is no merit in defendant’s assertion.
       Assault with a deadly weapon is not a lesser included offense of attempted murder.
(People v. Richmond (1991) 2 Cal.App.4th 610, 616 [“assault with a deadly weapon is
not a lesser included offense of attempted murder with the use of a deadly weapon,
because attempted murder can be committed without using a deadly weapon”; “allegation
of deadly weapon use . . . is not to be considered as part of the accusatory pleading in
determining whether assault with a deadly weapon is a lesser included offense of
attempted murder”]; see also People v. Sloan (2007) 42 Cal.4th 110, 114 [referring to the
“longstanding rule that enhancements may not be considered as part of an accusatory
pleading for purposes of identifying lesser included offenses”]; People v. Alarcon (2012)
210 Cal.App.4th 432, 439 [“trial court did not err in declining to instruct on assault with a
deadly weapon as a lesser included offense of attempted murder”].)
       Defendant Zamora does not discuss these authorities, arguing only that “this case
was overcharged” and, in effect, that the court must instruct on an offense not charged by
the prosecutor if the evidence supports that offense. Defendant proffers no authorities
supporting his proposition, and accordingly we do not consider it further.
5.     The Gang-related Issues
       a.     The gang expert’s qualifications
       Counsel for defendants Sandoval and Zamora moved to exclude Detective Jara’s
testimony as a gang expert, arguing she did not qualify as an expert. The trial court
denied the motion.



                                             31
       A trial court may permit police officers to testify as gang experts, “based upon
their ‘special knowledge, skill, experience, training [and] education’ (Evid. Code, § 720)
related to gangs.” (People v. Williams (1997) 16 Cal.4th 153, 195 (Williams).) The trial
court has “considerable latitude in determining the qualifications of an expert and its
ruling will not be disturbed on appeal unless a manifest abuse of discretion in shown.”
(People v. Bloyd (1987) 43 Cal. 3d 333, 357.)
       There was no abuse of discretion here. Detective Jara took two semester courses
in sociology focusing on gang cultures when she was an undergraduate. In 1999, during
her academy training as a custody assistant, she attended a 16-hour course on gang
culture in a custodial environment. She worked for five years in the county jails, where
she spoke with over 200 gang members on gang culture and their personal experiences in
gangs. When she was promoted to deputy sheriff, she attended a 40-hour course of
instruction on gang culture. In 2007, she was assigned to patrol at the Lakewood Station
for four years, contacting numerous gang members and investigating gang-related crimes.
She trained newly assigned deputies on how to recognize gang-related crimes. She
assisted the gang unit in gang-related investigations and search warrants. In March 2011,
she was promoted to gang detective. She investigated approximately 50 gang-related
crimes. She attended a 40-hour gang investigator’s school focusing on gang culture, and
received weekly briefings on gangs as a member of the California Gang Investigators
Association. She also grew up in areas infested with gangs.
       Plainly, Detective Jara was qualified as a gang expert by her training, education
and experience. (See, e.g., People v. Montes (2014) 58 Cal.4th 809, 861 [police officer
had six years of experience, 20 to 30 hours of training in the identification of gang
members, and was specifically familiar with the gang in question, but had never before
qualified to testify in court; trial court did not abuse its discretion in allowing him to
testify as a gang expert]; Williams, supra, 16 Cal.4th at p. 195 [officer who was “a
member of a special Los Angeles Police Department gang unit, had been involved with
gangs for seven years and had attended numerous professional seminars regarding gangs”



                                              32
was qualified as a gang expert; “[w]e have found qualified, as gang experts, officers with
investigative experience similar to that of the officers here,” citing cases].)
       b.       The gang photographs
       As noted earlier, the trial court excluded from evidence a YouTube video
depicting the CVS gang, finding it more prejudicial than probative, but admitted 23 still
images from the video, including stills of defendant Sierra’s moniker (Sleepy); of Joshua
Garcia (who was identified as allegedly intimidating witnesses) with a tattoo; of an area
claimed by the CVS gang; of threatening gang graffiti; of a hat that was the same as the
hat in the Magallanes shooting incident; and the like. The court also stated it would
permit Detective Jara to testify that she had watched the video, that “in her opinion as an
expert, this is what the gang culture does,” and that she had heard the rap lyrics in the
video. The court observed the still photographs would be relevant to corroborate
Detective Jara’s expertise.
       Defendants assert the trial court abused its discretion when it admitted the
photographs, because they were “not admissible as the basis of expert opinion,” and even
if they were admissible, they were more prejudicial than probative. Again we disagree.
       It is settled that an expert witness may base an opinion on matters that would
otherwise be inadmissible under the hearsay rule. (People v. Gardeley (1996) 14 Cal.4th
605, 618.) Indeed, experts have been permitted to recite hearsay statements verbatim and
at length. (People v. Valdez (1997) 58 Cal.App.4th 494, 504, 509, 510-511 (Valdez)
[expert was allowed to read verbatim and explain gang-related portions of letters;
“[u]nder Gardeley, we find it well within the trial court’s discretion to permit [the expert]
to relate in detail the large amount of hearsay upon which he relied.”].) We see no
significant difference in the admission of the photographs in this case, and defendant cites
no pertinent authority to the contrary. As the trial court observed, the photographs
formed part of the basis of Detective Jara’s opinion “as to why all five defendants are
gang members, what monikers they have, what type of clothing they wear, and things of
that nature.”



                                              33
       Nor do we see any abuse of discretion in the trial court’s conclusion that the
probative value of the photographs outweighed any prejudice to defendants. The Valdez
court’s conclusion is equally applicable here: “The trial court could reasonably conclude
that [the expert’s] opinions were very relevant to prove the gang enhancement allegation
and further that the hearsay upon which he based his opinions was highly probative on
his credibility and the weight to be given his opinions. The court could also reasonably
find that these factors outweighed any prejudice from the hearsay . . . because [among
other reasons] it did not directly name or implicate defendant in any other criminal
activity . . . .” (Valdez, supra, 58 Cal.App.4th at p. 511.)
       c.     The gang expert’s refusal to identify gang informants
       As we have mentioned, Detective Jara opined that both crimes were committed for
the benefit of a criminal street gang, CVS.
       On cross-examination, counsel for defendant Sierra asked Detective Jara whether
she had “talked to any other CVS gang members to find out in what way CVS was
benefited by” the crimes allegedly committed by the defendants, and she responded,
“Yes.” Counsel then asked Detective Jara, “And who did you talk to?” and the detective
said, “I’m not going to answer that. Or assert 1040 and 1041 of the Evidence Code.”
(Those sections govern privileges not to disclose official information and the identity of
an informer.) Counsel moved to strike Detective Jara’s testimony.
       The court denied the motion, among other things pointing out that Detective Jara
“has never stated that, because she has spoken to other individuals, that she is using that
as a basis of her opinion in this case.”
       Defendants contend the trial court erred, and should have held an in camera
hearing “to determine whether [Detective] Jara had relied upon that information, the
nature of the information, and its importance to the defense,” or at least should have
struck the “yes” answer from the record, to eliminate the implication that she had
“outside information supporting her opinion which she had not shared with the jury.”
These contentions have no merit.



                                              34
       Evidence Code section 1042 governs the procedures that apply when a party
demands disclosure of the identity of a confidential informant “on the ground the
informant is a material witness on the issue of guilt . . . .” (Id., subd. (d).) The
procedures include “a hearing at which all parties may present evidence on the issue of
disclosure,” during which the prosecutor may request an in camera hearing, so the court
can determine “whether there is a reasonable probability that nondisclosure might deprive
the defendant of a fair trial.” (Ibid.)
       Notably, “[i]t is incumbent on the defendant to make a prima facie showing for
disclosure before an in camera hearing is appropriate. [Citation.] [¶] Disclosure is
mandated only when the defendant, upon whom the burden falls, produces ‘ “some
evidence” [citation]’ [citation] to show ‘ “a reasonable possibility that the anonymous
informant whose identity is sought could give evidence on the issue of guilt which might
result in defendant’s exoneration.” [Citations.]’ [Citation.]” (People v. Oppel (1990)
222 Cal.App.3d 1146, 1152; People v. Fried (1989) 214 Cal.App.3d 1309, 1314-1315 [an
in camera hearing is not required “if an informant is not shown to be in a position to give
possible testimony which will aid the defendant on the issue of guilt. The mere assertion
that the informant is a material witness on that issue, without any plausible support
therefor, does not trigger the requirements of the statute.”].)
       Here, defendants offered no evidence or plausible support for the claim that any
CVS gang member with whom Detective Jara spoke could give evidence on the issue of
guilt – here, whether the crimes were committed for the benefit of CVS – that might
result in defendants’ exoneration on that allegation. Indeed, defendant’s only theory
(unsupported by any evidence) is that there is a reasonable possibility the informant could
provide “evidence that the crimes were not sanctioned by the gang.” Further, as the trial
court pointed out, Detective Jara at no time indicated she was relying on information
from CVS gang members in forming her opinion that the crimes benefitted the gang, and
a review of her testimony does not suggest otherwise.
       In short, there is no legal basis for the contention the court should have held an in
camera hearing. Nor do we see any abuse of discretion in the trial court’s refusal to strike


                                              35
the answer “yes” to defense counsel’s question whether she had talked to other gang
members on the subject of benefit to the gang. Certainly defendants have shown no
prejudice from that ruling.
6.     Defendants’ Admission of Gang Affiliation During Booking
       Defendants contend the trial court erred in admitting into evidence statements they
made during the booking process, admitting they were CVS gang members. Admission
of this evidence was error, but it was not prejudicial.
       a.     The background
       During the booking process, defendants Sierra, Sandoval and Zamora admitted
they were CVS gang members. (Defendant Virto did not admit gang membership, but
admitted that he associated with the CVS gang. He denied having a moniker or gang
name.) These admissions were recorded on booking slips showing the three defendants
were asked and stated their gang affiliations when they were booked.
       At trial, the court overruled objections to the admission into evidence of the
statements in the booking slips, relying on the booking exception to Miranda. At the
time of trial, there was case authority for the proposition that routine questions during
booking about gang affiliation, posed for security purposes and not designed to elicit an
incriminating response, may come within the booking exception. (People v. Gomez
(2011) 192 Cal.App.4th 609, 635, 634 (Gomez).)
       The California Supreme Court has decided this question in defendants’ favor. In
People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), the court rejected the analysis in
Gomez and held that questions about gang affiliation exceed the scope of the booking
exception. (Elizalde, at p. 527, 538 & fn. 9.)
       b.     Prejudice
       As Elizalde instructs, “[t]he erroneous admission of a defendant’s statements
obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond
a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [(Chapman)].
[Citations.] That test requires the People here ‘to prove beyond a reasonable doubt that



                                             36
the error complained of did not contribute to the verdict obtained.’ (Chapman, at p. 24.)”
(Elizalde, supra, 61 Cal.4th at p. 542.)
       We conclude respondent has met its burden under Chapman. Without regard to
defendants’ admissions, there was substantial and uncontroverted evidence of the gang
membership of all four defendants, removing any room for doubt on the point. We
describe the evidence as to each defendant.
              i.     Defendant Sierra
       Detective Jara opined that defendant Sierra was a CVS gang member. “He has
numerous tattoos on his body that depict his membership to Compton Varrio Segundo, in
addition to he’s been contacted by law enforcement where he admits to being a gang
member from Compton Varrio Segundo. [¶] He’s been with other documented gang
members from Compton Varrio Segundo. And the night of the incident, he was with
Defendant Virto and Defendant Zamora, who are Compton Varrio Segundo gang
members.”
       Detective Jara testified that Mr. Sierra’s moniker was “Sleepy,” and she knew that
because he had admitted to that moniker in contacts with the police that were “a couple of
years” old. The detective identified photographs of defendant Sierra and his tattoos,
including several tattoos on his right hand. These included the Roman numeral “II” and
“CVS” on one finger. Another tattoo showed a “P” with a “K,” meaning, in her opinion,
“Paramount killer.” Another was a common saying, “2’s up,” and still another showed
an “S” and a “P”; Detective Jara opined that “ ‘S’ is for Segundos and ‘P’ is for the clique
Pachucos, which . . . is the clique that he’s a part of.” On his right inner forearm and on
his legs, Mr. Sierra had tattoos of “C” and “2.” On his back he had a “2” and “PCHS”;
Detective Jara testified “PCHS” meant the clique “Pachucos.” On his ankle was a tattoo
of the number “2” and on his right thigh was “CVS.”
       The detective also identified F.I. cards for Mr. Sierra, dated December 15, 2010,
and June 12, 2011. (Detective Jara testified that an “F.I. card” is “a field interview card
that law enforcement generally uses to document their contact with a gang member.”)
The F.I. cards showed that Mr. Sierra admitted he was a member of CVS. (He gave


                                              37
police the moniker “Spark Plug” (not “Sleepy”).) Detective Jara testified there was a
“gang trend” to give police different monikers “from what their true identity is within
their gang,” because the police were “coming after them with the gang graffiti and
identifying them in that way.” The December 15, 2010 card also showed that he was
with another CVS gang member.
               ii.    Defendant Sandoval
         Deputy Leticia Reyes testified that, when he was booked, defendant Sandoval had
several tattoos. “He had ‘Segundo’ on the right leg; and on the left leg, he had
‘Compton.’ . . . [O]n his right hand on the back, he had ‘Mi Familia Primero,’ ‘Mi Varrio
Segundo,’ ” “which means ‘my family first,’ ‘my hood’ – or ‘neighborhood’ –
‘second.’ ”
         Detective Jara testified that, in her opinion, Mr. Sandoval was a CVS gang
member, and described the same bases for that opinion as for the other defendants. She
identified photographs of defendant Sandoval, showing tattoos on his back (“Mi Varrio
Segundo”) and tattoos on his legs (“Compton” on the left and “Segundo” on the right).
Detective Jara also identified two F.I. cards, both dated August 29, 2010. One of them
showed Mr. Sandoval was detained with CVS gang member Raymond Martinez
(Stranger), and the other, later in the day, showed he was with Martinez and defendant
Zamora. The cards showed that Mr. Sandoval admitted his gang affiliation, CVS, and
gave the moniker “Ghost,” which was “the moniker [Detective Jara knew] him to have as
well.”
               iii.   Defendant Zamora
         Detective Jara testified she was familiar with defendant Zamora, and opined that
he was a CVS gang member, again noting the same bases for her conclusions as for the
other defendants. She identified photographs of defendant Zamora, who had tattoos on
his legs of “the letter ‘C’ and the ‘2’ for ‘Compton Segundo.’ ” She identified two
F.I. cards showing police contacts with Mr. Zamora on September 2 and September 7,
2010. In each case, the cards indicated that Mr. Zamora admitted his gang affiliation
with CVS. Detective Jara testified that Mr. Zamora gave the moniker of “Blacky” on one


                                             38
of the F.I. cards, but had also given the moniker “Darky,” and that she knew his true
moniker to be “Darky.” One of the cards showed that Mr. Zamora was with CVS gang
member Raymond Martinez and another CVS gang member, Javier Ruiz.
              iv.    Defendant Virto
       Deputy Andrade testified that, when he was booked, defendant Virto had “several
Compton Varrio Segundo tattoos to the back of his head.” Detective Jara testified that
she was familiar with defendant Virto, and opined that he was “a gang member from
Compton Varrio Segundo. He has several tattoos depicting his membership to Compton
Varrio Segundo. [¶] Specifically, he has ‘CVS’ on his chest for ‘Compton Varrio
Segundo”; ‘Sur’ on his stomach for ‘Surenos.’ [¶] . . . [¶] Then on his back, he has
‘CPT’ for ‘Compton’; and then he has a large number ‘2’ on his back. And then he has
‘CVS’ on his right and left arms for ‘Compton Varrio Segundo.’ [¶] He’s been
contacted by law enforcement, not only in this county, but in Riverside County where he
admits to being a gang member from Compton Varrio Segundo. [¶] In addition to that,
on June 12th he was stopped in that black vehicle with Defendant Sierra and Defendant
Zamora, who we also know that are Compton Varrio Segundo gang members.”
       Detective Jara identified photographs showing Mr. Virto’s gang tattoos, and
explained that “ ‘Sur’ is a representation of South Side, which is Southern California
gangs, the region which are Hispanic gangs.” She reviewed and identified three
F.I. cards for Mr. Virto, dated November 27, 2010, February 6, 2011, and June 12, 2011,
all of them showing that Mr. Virto admitted gang affiliation with Compton Varrio
Segundo.
       Detective Jara testified that Mr. Virto has the moniker “Silent.” She stated that,
while Mr. Virto had never given his moniker to law enforcement personnel, she learned
“through jail phone calls what his moniker was, in addition to I had other corroborating
information from the gang unit within the Los Angeles County jails to corroborate that
his [moniker] is Silent.”
       Detective Jara also testified about the significance of gang tattoos. She stated:
“Well, the tattoos [are] part of the gang culture. It just shows your membership to the


                                             39
tattoo. It’s not a mandatory thing, but it’s something that shows their pride and their
loyalty to the gang. [¶] You can’t get a tattoo if you’re not a member. If you have not
joined the gang, there’s no way that you can get the tattoo of that gang on your body.
You’ll be killed if you did that.” She also testified that “tattoos have to be earned,” and
they are earned by “putting in work; committing crimes.”
       In addition to Detective Jara’s testimony as a gang expert, victim Perez testified
that, when the black car approached him the second time, he heard voices inside the black
car say, “This is Segundos” and “Fuck Sans Street” and “Get out of my hood.” Later at
the hospital, Perez told the police he knew his attackers “were from CVS.” And, when
Mr. Magallanes testified about his previous encounters with the black car, he said that the
occupants were from the “Segundos” gang.
       c.     Conclusion
       As in Elizalde, “[b]ecause [defendants’] gang affiliation was amply established by
independent and uncontradicted evidence, the erroneous admission of [their] challenged
statements was harmless beyond a reasonable doubt.” (Elizalde, supra, 61 Cal.4th
p. 542.)
7.     Defendant Sandoval’s Severance Motion
       Mr. Sandoval contends the trial court erred in denying his motion for severance.
We agree, but conclude the error was not prejudicial.
       Under section 1098, “[w]hen two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be tried jointly, unless the
court order separate trials.” In People v. Ortiz (1978) 22 Cal.3d 38, 43 (Ortiz), the
Supreme Court construed section 1098 to mean “that a defendant may not be tried with
others who are charged with different crimes than those of which he is accused unless he
is included in at least one count of the accusatory pleading with all other defendants with
whom he is tried.” (Italics added.)
       In this case, defendant Sandoval moved to sever his case from that of his
codefendants, based on the principle established in Ortiz: Mr. Sandoval, who was
charged only with the Magallanes shooting, was tried with defendant Noe Salazar, who


                                             40
was charged with different crimes (the Perez stabbing and the witness dissuasion counts)
which did not involve Mr. Sandoval in any way. Thus Mr. Sandoval was not included
“in at least one count of the accusatory pleading with all other defendants with whom he
[was] tried.” (Ortiz, supra, 22 Cal.3d at p. 43.) In this circumstance, Ortiz concluded
that “the trial court was required to grant the [severance] motion as a matter of law under
section 1098 . . . .” (Id. at pp. 42-43; see id. at p. 46 [“we deal here with a severance
motion which the trial court did not have the discretion to deny”].)
       On appeal, Mr. Sandoval renews his contention that the trial court erred in
refusing to sever his case. Ortiz compels us to agree. However, as in Ortiz, “[w]e next
inquire whether the error in denying defendant’s motion for severance was prejudicial so
as to require reversal of the conviction.” (Ortiz, supra, 22 Cal.3d at p. 45.)
       Before we proceed to that analysis, we pause to reject respondent’s apparent
contention that this case falls within an exception to the Ortiz requirement, as found in
People v. Hernandez (1983) 143 Cal.App.3d 936 and People v. Wickliffe (1986) 183
Cal.App.3d 37. Those cases held that the Supreme Court in Ortiz “did not intend to
extend its ruling to cases . . . where codefendants jointly committed a series of crimes
against the same victim at the same time and in the same place.” (Hernandez, at pp. 939,
938 [all offenses arose out of a “gang rape” after a party given by the victim]; Wickliffe,
at p. 41 [victim was injured when one defendant knocked him from a moving truck, and
rear wheels of the truck, driven by intoxicated codefendant, crushed his midsection;
although charged with different offenses, defendants were properly tried together because
the offenses “arose from a single set of circumstances against the same victim during the
same time and in the same place”].) Plainly, this case does not come within the
Hernandez rule – the crimes charged here were committed under different circumstances,
against different victims, and at a different time and different place.
       The error in denying severance was not prejudicial. Again we are guided by Ortiz.
The right to a separate trial “is not so fundamental that its erroneous denial requires
automatic reversal.” (Ortiz, supra, 22 Cal.3d at p. 46.) The factors to be applied in
determining whether a denial of severance was prejudicial “include whether a separate


                                              41
trial would have been significantly less prejudicial to defendant than the joint trial, and
whether there was clear evidence of defendant’s guilt.” (Ibid.) We reverse “only upon a
showing ‘of a reasonable probability that the defendant would have obtained a more
favorable result at a separate trial.’” (Ibid.)
       In this case, the evidence Mr. Sandoval was guilty of the attempted premeditated
murder of Mr. Magallanes was overwhelming. He was identified as the shooter by both
Raul and Olivia Magallanes. He shot at Mr. Magallanes three times, and indeed pursued
Mr. Magallanes while he was shooting at him. Olivia Magallanes saw the shooter
pointing the gun at her brother’s upper body. The police found Mr. Sandoval hiding
underneath a truck not far from the crime scene. He was not wearing the hat and T-shirt
Mr. Magallanes described the assailant as wearing, but the police found those items,
along with a revolver with three expended casings, underneath some shrubbery near the
crime scene. Mr. Sandoval tested positive for gunshot residue.
       On the record in this case, no reasonable juror could have doubted either that Mr.
Sandoval was the shooter or that he intended to kill – certainly the facts that he did not hit
his target or expend all his bullets do not detract from the evidence of intent to kill. The
evidence against Mr. Sandoval left no doubt of his guilt, and the assertion that the jury
must have been affected by the evidence of the intent of the other defendants in the other
case is entirely speculative, without support in the record. The jurors were clearly
instructed on which defendants were charged with which crimes, and that they must
“separately consider the evidence as it applies to each defendant” and “decide each
charge for each defendant separately.” We have no reason to assume they did not do so.
       Mr. Sandoval also contends the improper joinder “exposed the jury to highly
prejudicial evidence of Salazar’s jail calls” relating to witness dissuasion, and to a single
reference by the gang expert to the Mexican Mafia in connection with Salazar’s jail calls.
But the reference to the Mexican Mafia was stricken from the record, and the jury was
instructed during the trial that the jail recordings it heard “are only to be considered
against Defendant Salazar, Noe Salazar in this case. [¶] It is not to be used or considered
in any way or any fashion during your deliberations against Defendants Virto, Sierra,


                                                  42
Sandoval, or Zamora. Only against Defendant Salazar.” Again we have no reason to
believe the jury did not follow these instructions.
       In sum, the record discloses no probability that Mr. Sandoval would have obtained
a more favorable result at a separate trial. (Ortiz, supra, 22 Cal.3d at p. 46.)
8.     Cruel and Unusual Punishment
       Defendant Sandoval, who was 15 years old when he committed the offenses, was
sentenced to 35 years to life in prison: 15 years to life for attempted willful, deliberate
and premeditated murder in the Magallanes shooting (§ 664, subd. (a) & § 186.22,
subd. (b)(5)), plus 20 years consecutive for the firearm discharge enhancement
(§ 12022.53, subd. (c)). Defendant Zamora, who was 17 years old at the time of the
crimes, was sentenced to 43 years to life in prison: 15 years to life for attempted willful,
deliberate and premeditated murder in the Magallanes shooting, plus 20 years
consecutive for the firearm discharge enhancement (§ 12022.53, subd. (e)), plus the
midterm of seven years consecutive for attempted murder in the Perez stabbing (§ 664,
subd. (a)), plus one year consecutive for personal use of a deadly weapon (§ 12022, subd.
(b)(1)).
       Both defendants challenge their sentences as cruel and unusual punishment under
the Eighth Amendment. Their claims have no merit. Their sentences were mandated by
law, and fully consonant with constitutional principles established by the high court and
our Supreme Court for the sentencing of juvenile offenders convicted of nonhomicide
offenses.
       a.     The facts
       At the sentencing hearing for defendants Sandoval and Zamora, the trial court
stated it had reviewed all the documents submitted on behalf of defendants (school
records, letters from family members and friends, sentencing memoranda, probation
reports, and a psychologist’s report). The prosecutor indicated her understanding that
“we’re here for a hearing with regard to the two defendants’ maturity level for purposes
of mitigating circumstances for sentencing.” The trial court then heard testimony from



                                              43
Mr. Sandoval’s mother and from two psychologists on issues including defendants’
amenability to rehabilitation.
       After hearing argument, the court reviewed factors in mitigation and aggravation
for Mr. Sandoval. In mitigation, the court found Mr. Sandoval was 15; committed the
offense with another juvenile and two adults; the victim was not injured; Mr. Sandoval’s
father left the home when Mr. Sandoval was 10 or 11 years old; his four siblings were
never involved in the criminal justice system; he was average or above average when he
attended school; and he had no major substance abuse problems. As aggravating
circumstances, Mr. Sandoval had “multiple involvements with the criminal justice system
dating back to 2009”; had been released from an eight-month stay in juvenile camp for
less than a week when he committed this offense; and was the actual shooter in a gang
confrontation.
       The court concluded it had “very little discretion” in sentencing and imposed the
35 years to life sentence described above. The court recommended, “for whatever it is
worth,” that Mr. Sandoval should be given a parole hearing at the first possible
opportunity. Observing this would be by the age of 45, the court referred to “new law
and legislation,” and said that “if it is done earlier for juveniles, the court highly
recommends that Mr. Sandoval be given a parole hearing earlier.”
       In Mr. Zamora’s case, the court likewise reviewed factors in mitigation and
aggravation. In mitigation, the court found Mr. Zamora was 17; he was an aider and
abettor in the shooting; he had a low intelligence level and suffered from depression. The
aggravating factors were his involvement in two violent offenses with other gang
members only a week apart; in the second offense he had a knife and attempted to stab
the victim, who was actually injured by Mr. Zamora’s fellow gang member; and he had
been involved in the criminal justice system since the age of 13.
       The prosecutor sought a sentence of 55 years to life. The court sentenced
Mr. Zamora to 43 years to life as described above. (In addition to imposing the middle
term for the Perez stabbing, the court found good cause to stay the 10-year gang
enhancement, based on the mitigating factors and the victim’s full recovery from his


                                               44
injuries.) The court again concluded that its “hands [were] tied by mandatory sentencing
structure that gives the court little to no discretion in sentencing Mr. Zamora,” and that
Mr. Zamora, “depending on how well he is rehabilitated in prison, can be and should be
considered for parole” after serving his statutory minimum sentence.
       b.     The law
       The Eighth Amendment prohibits states from sentencing a juvenile convicted of
nonhomicide offenses to life imprisonment without the possibility of parole. (Graham v.
Florida (2010) 560 U.S. 48 (Graham).) The Eighth Amendment also prohibits a
mandatory life without parole sentence for juvenile offenders. (Miller v. Alabama (2012)
567 U.S. ___ [132 S.Ct. 2455] (Miller).) And the Eighth Amendment prohibits states
from sentencing a juvenile convicted of a nonhomicide offense “to a term of years with a
parole eligibility date that falls outside the juvenile offender’s natural life
expectancy . . . .” (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero).)
       None of those things happened here. The sentences imposed complied in full with
the Supreme Court’s direction in Caballero: “Under Graham’s nonhomicide ruling, the
sentencing court must consider all mitigating circumstances attendant in the juvenile’s
crime and life, including but not limited to his or her chronological age at the time of the
crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and
his or her physical and mental development, so that it can impose a time when the
juvenile offender will be able to seek parole from the parole board. The Board of Parole
Hearings will then determine whether the juvenile offender must be released from prison
‘based on demonstrated maturity and rehabilitation.’ [Citation.]” (Caballero, supra, 55
Cal.4th at pp. 268-269.)
       Mr. Sandoval’s mandatory sentence of 35 years to life does not deprive him of
“a parole eligibility date that falls outside [his] natural life expectancy,” or a “meaningful
opportunity to demonstrate [his] rehabilitation and fitness to reenter society in the
future.” (Caballero, supra, 55 Cal.4th at p. 268.) On the contrary, as discussed at the
sentencing hearing, Mr. Sandoval will be 45 years old when he is first eligible for parole,
well within his life expectancy. Under these circumstances, the sentence meets


                                               45
constitutional requirements, and the trial court had no discretion to impose a sentence
other than the one mandated by statute.
       Mr. Sandoval contends that “depriving the trial court [of] discretion to consider
Sandoval’s age before imprisoning him for approximately half his expected life span
violated the Eighth Amendment.” He cites no California or federal authority for this
proposition – merely “the logic of Graham, Miller, and their progeny” – and we are
aware of none. (See People v. Perez (2013) 214 Cal.App.4th 49, 52 (Perez) [“There is no
rule of constitutional jurisprudence that requires discretion to reduce penalties when
minors are sentenced for adult crimes to periods which still leave them a substantial life
expectancy after release from prison.”].)
       Mr. Zamora makes similar arguments. He points out that “the earliest he could be
released is at the age of 53 and ½ years” (and he notes his “total life expectancy is
82.1 years,” or “somewhat shorter” since he is “Hispanic”). Thus, he says, “he will be
incarcerated virtually all of his productive life.” We do not see it that way. As in Perez,
Mr. Zamora has cited “no case which has used the []Graham-Miller-Caballero line of
jurisprudence to strike down as cruel and unusual any sentence against anyone under the
age of 18 where the perpetrator still has substantial life expectancy left at the time of
eligibility for parole.” (Perez, supra, 214 Cal.App.4th at p. 57.) And, while “[h]ow
much life expectancy must remain” is a matter for future judicial development, “we can
safely say that in the case before us there is plenty of time left . . . .” (Ibid.; id. at p. 58
[defendant eligible for parole at age 47; “by no stretch of the magination can this case be
called a ‘functional’ or ‘de facto’ LWOP”].) The same is true here.6



6       After the sentencing in this case, the Legislature addressed juvenile sentencing
concerns with new provisions of the Penal Code, effective January 1, 2014. With certain
inapplicable exceptions, section 3051 now provides for parole hearings for prisoners who
were under the age of 18 at the time of their offenses, during the 15th, 20th, or 25th year
of incarceration (depending on the circumstances). So, at worst, Mr. Zamora will be
eligible for release on parole after 25 years, when he is 42. (Court of Appeal opinions
have expressed conflicting views on whether the statute satisfies the defendant’s right to
receive a constitutional sentence at the time of sentencing, and that and related issues are

                                                46
       Finally, Mr. Zamora argues his sentence violates the Eighth Amendment under
general jurisprudence holding a sentence is cruel and unusual when “it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)
The argument is unsupportable. Mr. Zamora persists in characterizing his offenses as
“assaults,” with a “flawed finding by the jury of an intent to kill,” and he describes his
culpability as “limited to riding in a car in one incident and engaging in an unsuccessful
fight in the other.” These assertions do not reflect the facts found by the jury. As Perez
observed, “[s]uccessful challenges based on the traditional [line of jurisprudence] are
extremely rare.” (Perez, supra, 214 Cal.App.4th at p. 60.) Here, as in Perez, the “present
case certainly is not among those ‘exquisitely rare’ cases which merit reversal on
traditional disproportionality review.” (Ibid.) In short, Mr. Zamora has shown no
disproportionality between the sentence and the crimes, and certainly none that shocks
the conscience.
9.     The Restitution Fines
       When defendants committed their crimes in June 2011, section 1202.4 required
the court to set a restitution fine of between $200 and $10,000, “at the discretion of the
court and commensurate with the seriousness of the offense.” (Former § 1202.4,
subd. (b)(1), Stats. 2010, ch. 107, § 1.) The minimum fine increased to $240 starting on
January 1, 2012. (§ 1202.4, subd. (b).) At the sentencing hearings held in August and
November 2012, the court in each case imposed, without comment, a $240 restitution
fine (and a corresponding $240 parole revocation restitution fine under section 1202.45,
subdivision (a)).
       A restitution fine under section 1202.4 is subject to the ex post facto clause of the
Constitution. (See People v. Souza (2012) 54 Cal.4th 90, 143.) Defendants contend the
trial court’s imposition of $240 fines, instead of the $200 minimum fines, constituted an


pending in the Supreme Court. (See, e.g., In re Alatriste, review granted Feb. 19, 2014,
S214652.))


                                             47
unauthorized sentence and violated the ex post facto clause, because the court “attempted
to impose the minimum fine . . . .” We disagree. Nowhere in the record does the trial
court indicate it intended to impose the minimum fine under section 1202.4. The trial
court is provided wide latitude under section 1202.4 to impose a fine between $200 to
$10,000. Defendants do not argue that the trial court abused its discretion in imposing
the $240 fines. They have presented no supported reason, beyond conjecture, to reduce
these fines. As a result, we decline to do so.
10.    Cumulative Error
       Defendants contend the cumulative effect of the errors they allege deprived them
of a fair trial, and requires reversal of the judgment, in whole or in part. They are
mistaken. While “a series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error” (People v.
Hill (1998) 17 Cal.4th 800, 844), that is not the case here.
       In this case, the court erred only in refusing to sever Mr. Sandoval’s case and
admitting evidence of defendants’ admission of gang membership during booking. No
prejudice resulted from these errors. “A defendant is entitled to a fair trial, not a perfect
one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.) We conclude defendants received a
fair trial, and perceive no prejudice, cumulative or otherwise.
                                      DISPOSITION
       The judgments are affirmed.
                                                                  GRIMES, J.
       We concur:


                     BIGELOW, P. J.




                     FLIER, J.




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