IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A122794

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1 Filed 8/31/10 P. v. Salazar CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, v. Plaintiff and Respondent, RANDY SALAZAR and ERIC ANDERSON, Defendants and Appellants. A (Contra Costa County Super. Ct. No ) Defendants Randy Salazar and Eric Anderson, both members of the Norteño criminal street gang, attempted an early morning robbery of Matthew Stephens. Anderson, using Salazar s gun, shot Stephens dead in the course of the robbery attempt. The jury convicted defendants of first degree felony murder and attempted second degree robbery. (Pen. Code, 187, 190.2, subd. (a)(17); 211/212.5/664.) 1 The jury also found that defendants committed both offenses for the benefit of the Norteño criminal street gang, with the specific intent to promote criminal conduct by gang members ( , subd. (b)(1)). In addition, the jury convicted defendants of a gang-related firearms offense ( 12031, subd. (a)(2)(c)). The trial court imposed principal terms of life without possibility of parole on defendants murder convictions. Anderson contends the trial court erroneously admitted extrajudicial statements of Salazar as statements against penal interest. Both defendants contend the prosecutor committed misconduct in the questioning of a hostile witness; there is insufficient 1 Subsequent statutory citations are to the Penal Code unless otherwise indicated. 1

2 evidence to support the gang enhancement and the gang-related weapons offense; and the abstracts of judgment must be modified and the restitution fine recalculated. We direct a modification to the abstracts of judgment and otherwise affirm the judgments in full. I. FACTS Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.) The Offense Matthew Stephens worked in San Francisco, but lived in Antioch. He usually left his home to drive to work at 4:30 a.m. He kept a blue blanket in his car so that he could sleep if he arrived at work early. His Antioch neighborhood was not well lit and was on a thoroughfare that could allow for quick escape to other areas of the city. On September 21, 2004, at approximately 4:30 a.m., defendants were out rooting, i.e., looking for someone to rob. Salazar was a high-ranking member of the Elite Northern Empire, a subset of the Norteño gang in the Antioch area. His street name was Oso. Anderson was an independent Norteño, but police believed he was trying to associate himself with the Pittsburg Norteño subset Crazy Ass Latinos, or CAL. His street name was E-Lo. Defendants saw Stephens standing by his car. Anderson later told his friend Michael Johnson that Stephens was putting on his shirt. Armed with Salazar s revolver, Anderson walked up to Stephens and put the gun in Stephens side. Stephens resisted and struggled with Anderson. Anderson shot Stephens in the face. The autopsy physician removed a.22 bullet from Stephens brain. Stephens blanket was found near his body. It was soaked with blood, contained his glasses, and bore gunshot residue and a bullet hole consistent with a small caliber weapon, such as a.22. No bullet casings were found at the scene, except for a.40 casing 2

3 dropped by an investigating officer; this was consistent with a revolver being used as the murder weapon. 2 Just before the shooting, William Eby, a bus driver, was walking to work. He walked past a housing complex and saw a white car enter the complex and park. He thought it was odd for the car to be there so early in the morning. Because there had been problems with stolen cars being dropped off in the complex s parking lot, Eby walked behind the white car to get its license plate number. As he was six to 10 feet from the passenger side, the two men in the car turned to look at him. Eby identified Salazar as the driver and Anderson as the passenger. Defendants seemed kind of agitated and stressed. Eby walked past the car, which then proceeded down the street in his direction, passing him. The car turned onto East Lake Drive. Eby followed, turned the corner onto East Lake Drive, and saw the white car had stopped at the end of the block near the intersection with East Lake Court. A few seconds later he heard a pop, that sounded to him like a muffled shot from a small caliber gun. After a few seconds, possibly no longer than 15, Eby saw the white car back up, spin around, and drive toward and past him at a speed of 50 miles per hour, in the direction of the waterfront. Eby walked to the end of the block and saw Stephens body lying by his car. The driver s door was open and Eby heard the door chime, meaning the keys were in the ignition. Eby called 911. Defendants immediately drove to the waterfront. Salazar threw into the water the handgun used to kill Stephens. They changed clothes and abandoned the white car on East 6th Street, a few minutes from the crime scene. Later that morning, Eby identified the car as the one he had seen that morning. Near the car, police recovered clothing; a Budweiser carton; and checks and identification in a number of different names, which appeared to have been stolen. 2 The officer had been involved in firearms training earlier in the day, and guessed that the casing must have lodged in his belt. It fell out when he bent down to give Stephens CPR. 3

4 The Ensuing Investigation The investigation of the homicide focused on defendants when police learned they had the white car, a Pontiac, at the time of the shooting. As we shall see, defendants admitted the murder to several of their associates. Police learned that Mariette Sarmiento had rented the white Pontiac shortly before the murder. The day before the murder, September 20, 2004, Norteño member and methamphetamine dealer Gabriel Perez, along with his brother Eric, his cousin Michael Cole, and his friend Kristi Lopez, went to Sarmiento s hotel room and forcibly took the keys to the Pontiac. Gabriel Perez and his companions left in the car. Lopez drove. Lopez kept the car all morning on the 20th, dropping Gabriel Perez off at the residence of Gary Elizondo, aka Chief. Elizondo s manor was 508½ West 16th Street, a half unit in the back of a house where people hung out to smoke methamphetamine. Later in the day of the 20th, Lopez had the Pontiac at Cadillac Dan Vegas house, at 509 West 15th Street the block behind Elizondo s residence. Lopez called her friend Nicole Martin and asked her to come by to pick up two garbage bags containing stolen items, including checks and driver s licenses. Lopez wanted Martin to store the bags in her apartment, which was in a guarded and gated complex. Martin went to Vegas house. Lopez retrieved the bags from the Pontiac. About 10:00 p.m. on the 20th, Antioch Police Officers Wisecarver and Koch went to Elizondo s house to investigate the theft of some checks. They met with Lopez and saw the white Pontiac. The officers also saw that Lopez was with a group of people which included defendant Anderson, Gabriel Perez, and his brother Eric. Sometime after midnight or 12:30 the next morning the morning of the murder Gabriel Perez drove the white Pontiac from Elizondo s house to the home of Joseph Jo Jo Watts, near downtown Antioch. Anderson was there, along with Eric Perez and Filthy Phil Makinano. Everyone at the house was smoking methamphetamine. Defendant Salazar called and asked to be picked up and brought over 4

5 to Watts house. Eric Perez drove the white Pontiac to Elizondo s house, possibly accompanied by Anderson, picked up Salazar, and took him to Watts house. When Salazar arrived, he appeared agitated and paranoid: Something was bugging him... something was on his mind. He went from room to room with his revolver in hand, thinking that someone else was in the house. Watts was worried about whether Salazar was aggravated or frustrated. Gabriel Perez told Watts that he would take care of Salazar if he got out of control. About two and a half hours later, in the early morning of September 21, 2004, Gabriel and Eric Perez, Filthy Phil Makinano, and both defendants left Watts home in the white Pontiac. They dropped Makinano off in Pittsburg at a drug haven known as The Crack Shack. Next they dropped Eric Perez off at Martin s guarded and gated apartment complex in Pittsburg. A surveillance videotape shows the Pontiac entering the complex at 3:40 a.m. about 50 minutes before the murder. The tape showed that Anderson appeared to be driving. Gabriel Perez signed the security check-in sheet. After dropping off Eric, only Gabriel Perez and defendants were left in the car. According to a statement Gabriel gave police, Anderson was driving. The surveillance videotape shows the white Pontiac leaving Martin s apartment complex. Defendants drove Gabriel Perez to Elizondo s house, where he had arranged to meet Stephanie Taylor. Defendants, now with the white Pontiac all to themselves, drove to East Lake Drive where they accosted Stephens and murdered him. Not long after the murder, and after they changed clothes, abandoned the white Pontiac, and disposed of the murder weapon, defendants went to the home of Salazar s girlfriend, Yamileh Yami Serrano. Later that morning, Gabriel Perez awoke and called Salazar to find out the whereabouts of the white Pontiac. Salazar lied to him and told him the car which defendants had abandoned near the crime scene was downtown. Gabriel sent his brother Eric and Makinano downtown on bicycles to retrieve the car. They could not find it. 5

6 Salazar went to Cadillac Dan s house and met with Gabriel, who confronted him about the missing car. Salazar s behavior was suspicious, making Gabriel think Salazar had sold the Pontiac. Salazar told Gabriel Perez to stop looking for the Pontiac. Salazar also said that if he saw the car again he would burn it. Salazar admitted participation in the murder and attempted robbery to Gabriel Perez. Specifically, Salazar told Perez about his involvement and that Anderson and Stephens wrestled over the gun and the gun went off. Salazar told Gabriel not to tell anyone about the crimes, not even his brother Eric. On the evening of the day of the murder, Anderson went to the home of Tattoo Fernando Flores to get a gang tattoo apparently the word Northern above the initials CAL, i.e., Crazy Ass Latinos. Little Fernando Coria was at Flores house. Anderson told Coria about the murder and asked for his advice. Coria told Anderson he should not tell anyone about the killing; Anderson responded that he had already told eight people. Coria told Anderson to stop talking about the murder. Anderson left without getting his tattoo. At 6:40 p.m. on the evening of the day of the murder, police went to Martin s apartment and arrested Gabriel Perez on a probation violation. After four interviews, Gabriel told police that Salazar had admitted the murder and attempted robbery to him. Gabriel told police his disclosure of Salazar s admission put his life in jeopardy, and he was nervous. A week after the murder, the Contra Costa Times published an article naming defendants as suspects in the murder, and published defendants pictures. At that time, Anderson was staying with a friend, Michael Johnson, who saw the article. Anderson admitted the murder and attempted robbery to Johnson. Anderson told Johnson that Salazar had given him the gun; that he put the gun in Stephens side; that Anderson and Stephens struggled over the gun and Anderson shot Stephens; and after the shooting Anderson and Salazar changed clothes and got rid of the car. Johnson told Anderson he should turn himself in. Anderson surrendered to police in October

7 Salazar was apprehended in the early morning hours of October 3, 2004, after a lawful police pursuit unrelated to the murder. Antioch Police Officer Thomas Lenderman qualified as an expert on street gangs, including the Norteño gang. In his expert opinion, based on several factors, both defendants were active members of the Norteño gang. Defendants did not testify at trial. They presented expert testimony showing that the physical evidence linking them to the white Pontiac was inconclusive. Through counsel, they attacked the credibility of prosecution witnesses and claimed innocence. They assailed the identification testimony of Eby, and argued it was tainted by the newspaper photographs. 3 They argued that most of the prosecution witnesses were not to be believed because they had prior convictions, poor memories due to drug use, inconsistencies in their testimony, and motivations to lie. As we stated at the outset, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. The jury was the arbiter of the credibility of witnesses. The jury convicted defendants of first degree felony murder, finding that defendants killed Stephens in the commission of attempted robbery. The jury also convicted defendants of attempted second degree robbery. With regard to both offenses, the jury found that defendants, as coprincipals in the murder, intentionally and personally discharged a firearm causing death ( , subds. (b), (c), (d) & (e)(1)). The jury also found that defendants committed both offenses for the benefit of the Norteño criminal street gang, with the specific intent to promote criminal conduct by gang members ( , subd. (b)(1)). Finally, the jury convicted defendants of carrying a loaded firearm while a member of a street gang ( 12031, subd. (a)(2)(c)). 4 3 Defendants raise no issue on appeal regarding the admissibility of Eby s identification testimony. 4 The jury acquitted defendants of attempted carjacking ( 215, subd. (a)/664). 7

8 The trial court sentenced each defendant to a principal term of life without the possibility of parole on the felony murder conviction. Pursuant to section , subdivisions (d) and (e)(1), the court imposed a separate, consecutive term of 25 years to life on the firearm enhancement. And pursuant to a provision of the gang enhancement statute, section , subdivision (b)(5), the court ordered that defendants would not be eligible for parole until they served a minimum of 15 years. 5 The court imposed sentences on the convictions for attempted robbery and carrying a loaded firearm, but stayed the sentences under section 654. II. DISCUSSION Issue Raised by Defendant Anderson Anderson contends the trial court erred by admitting extrajudicial statements made by defendant Salazar to Gabriel Perez. The statements, admitted over a hearsay objection as statements against penal interest (Evid. Code, 1230), implicated Anderson in the murder and attempted robbery. We conclude the statements were properly admitted because, when viewed in context, they also directly implicated Salazar in the felony murder and thus were specifically disserving to Salazar s penal interests as we explain below. Evidence Code section 1230 provides: Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true. (Italics added.) 5 The consecutive sentence and the 15-year minimum sentence are mandated by statute in this case. 8

9 It is undisputed that Salazar was unavailable as a witness, having exercised his Fifth Amendment privilege not to testify at trial. The issue here is whether Salazar s statements subjected him to the risk of criminal liability that a reasonable man would not have made the statements unless he knew them to be true. A declarant s statement is not automatically admissible just because it includes an admission of criminal liability. (People v. Duarte (2000) 24 Cal.4th 603, 611 (Duarte).) Evidence Code section 1230 does not apply to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant. [Fn. omitted.] (People v. Leach (1975) 15 Cal.3d 419, 441 (Leach).) Under the Leach rule, a statement which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) is inadmissible. (In re Larry C. (1982) 134 Cal.App.3d 62, 69 (Larry C.); see Duarte, supra, at p. 612 [quoting Larry C. with approval].) Such an inadmissible statement does not meet the test of trustworthiness because it is, at least in part, selfserving. (Larry C., supra, at p. 69; see Duarte, supra, at pp ) To be admissible as a statement against penal interest, the declarant s statement must be truly selfinculpatory, rather than merely [an] attempt[] to shift blame or curry favor. (Williamson v. United States (1994) 512 U.S. 594, 603 (Williamson); see Duarte, supra, at pp ) Whether or not a statement is truly self-inculpatory can only be determined by viewing it in context. (Williamson, supra, 512 U.S. at p. 603; Duarte, supra, 24 Cal.4th at p. 612.) The context includes the circumstances under which the statement was made, the declarant s possible motivation, and his relationship to the defendant. (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier).) Even statements that are on their face neutral may actually be against the declarant s interest. I hid the gun in Joe s apartment may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly selfinculpatory. Sam and I went to Joe s house might be against the declarant s interest if a reasonable person in the declarant s shoes would realize that being linked to Joe and Sam 9

10 would implicate the declarant in Joe and Sam s conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant s interest. (Williamson, supra, 512 U.S. at p. 603.) Two groups of cases illustrate the distinction between statements which are truly self-inculpatory, and therefore admissible, and those which are partially self-serving and exculpatory, and therefore inadmissible. We begin with the latter. In Larry C., two adults and the defendant, Larry C., accosted two men and demanded money. One of the victims resisted and was shot dead. One of the adults, Chester Hill, admitted to police that he was present at the scene of the crime, but that the other adult, Harold Parks, fired the fatal shot and that Larry C. helped Parks in the robbery. (Larry C., supra, 134 Cal.App.3d at p. 65.) The People argued Hill s statement was admissible against Larry C. as a statement against penal interest. (Id. at p. 69.) The court disagreed because the statement was partially self-serving and exculpatory: [H]ill admitted being present when the crime was committed, but he placed the onus for the commission of the offense on the other two participants, Parks and... Larry C. (Id. at pp ) Duarte involved a shooting at an inhabited dwelling, in which an occupant of the house, a mother of two, was injured in the leg with an assault rifle bullet. (Duarte, supra, 24 Cal.4th at pp ) Duarte s codefendant, Billy Morris, made postarrest statements to police in which he admitted shooting into the house with a semi-automatic machine gun, but that he had fired into the wrong house. (Id. at pp. 608, 611.) Morris also told police he fired in retaliation for an earlier shooting; didn t want to kill anybody; and didn t want to take a chance of hurting anybody, so he shot high, at the roof. (Id. at pp ) The court held it was error to admit Morris statements against defendant Duarte as statements against penal interest, especially since the jury knew Morris was not the only shooter and two guns were used. His statements that he had shot at the house by mistake, was motivated by retaliation for an earlier shooting, and did not want to kill or hurt anyone tended sympathetically to describe Morris s participation in the shooting of 10

11 the... residence, to minimize his responsibility for the injuries caused thereby and to imply that others who were or might become implicated should bear a greater share of the responsibility [fn. omitted]. (Duarte, supra, 24 Cal.4th at p. 613, & pp , fn. 2.) As such, the statements were not truly self-inculpatory, but constituted an attempt to curry favor or transfer blame in the phrasing of Leach, they were not specifically disserving of Morris, and were thus inadmissible. In People v. Smith (2005) 135 Cal.App.4th 914 (Smith), codefendants Smith and Taffolla were tried for the beating death of a woman in a motel room. Taffolla s girlfriend, Robledo, testified to statements Taffolla made to her after the killing. Taffolla told her that he and Smith and one Felix had gone to the victim s room intending to rob her. Taffolla said he had waited outside the victim s room as a lookout, while Smith went inside and Felix went to get his car. Taffolla also told Robledo there had been an altercation in the room involving an iron, and that Smith had been injured. (Id. at pp ) The Smith court ruled that the statements were improperly admitted against Smith as statements against penal interest. (Smith, supra, 135 Cal.App.4th at pp ) Taffolla s statements laid blame for the killing squarely on Smith. And to the extent Taffolla s statement[s] implied that Smith went to [the victim s] room to rob her, it was not specifically disserving of Taffolla because it attempted to minimize Taffolla s responsibility or shift blame to Smith. (Id. at p. 922.) Other cases illustrate admissible, truly self-inculpatory statements. People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger) involved a kidnapping and murder committed by several defendants, including Marti and Mentzer. (Id. at pp ) Marti complained of the admission of Mentzer s statements as statements against penal interest. Mentzer had said that Marti was full of shit. I m the one who set the whole goddamn thing up. Mentzer then went on to describe events in the car in which the victim was kidnapped, with Marti and a third defendant present. Mentzer described Marti holding a gun on the victim. (Id. at p. 340 & fn. 16.) 11

12 The Greenberger court ruled Mentzer s statements were properly admitted because Mentzer not only took responsibility for planning the kidnapping, but acted with Marti as an aider and abettor while Marti held the gun on the kidnapped victim. (Greenberger, supra, 58 Cal.App.4th at pp & p. 340, fn. 16.) Mentzer s references to Marti were an integral part of the statement in which he implicated himself in planning and participating in the kidnapping and murder.... The trial court correctly concluded that Mentzer s statement subjected him to criminal liability to such an extent that a reasonable man in his position would not have made the statements unless he believed them to be true. (Id. at p. 340.) People v. Brown (2003) 31 Cal.4th 518 (Brown) involved a murder committed in the course of a robbery. Defendant Brown and three others, including Broderick Fields, drove around looking for a vehicle bearing deep-dish tire rims they wished to steal. They happened upon the victim, who was driving her husband s truck with deep-dish rims, and followed her. When the victim stopped at a red light, Brown left his car, walked to the driver s window of the victim s truck, and shot her in the neck with a.38 pistol. Brown pulled the victim out and got in the driver s seat. Fields ran up and got in the passenger seat. The two drove off. (Id. at pp ) In rebuttal to impeach the testimony of a defense witness, who testified to a different version of events, the People called a detective to testify to Fields out-of-court interrogation statement. The detective testified that Fields said he was in the car which pulled up behind the victim s, that he got out and got into the passenger seat of the truck, and then left the scene in the truck. (Brown, supra, 31 Cal.4th at p. 533.) Defendant Brown argued that Fields statements should not have been admitted as statements against penal interest, because Fields tried to distance himself from being the shooter and denied knowledge that a crime had been committed. The Supreme Court rejected this argument, and noted it was a selective reading of the record. (Brown, supra, 31 Cal.4th at p. 535.) The court relied on a statement Fields made to the detective to which, apparently, the detective did not testify that he saw another man with a gun run up to the driver s side of the truck and heard a gunshot. Fields, who knew 12

13 he was under arrest for murder, also told the detective that he got into the passenger seat after the victim was shot, resignedly saying: I mean, fuck it, and that s how it went. (Id. at pp ) The Supreme Court upheld the admissibility of the statements: Although he does not admit to firing the fatal shot, [Fields] knew he was being charged with murder, he admitted to hearing a gunshot, and he admitted to participating in stealing the victim s truck. These statements were clearly against his penal interests; his denial of having been the shooter did not absolve him of the crimes to which he admitted. By admitting he entered the car and assisted defendant [Brown] in fleeing the scene, [Fields] was admitting his complicity in a robbery murder, an admission so far contrary to the declarant s interests that a reasonable man in his position would not have [admitted it] unless he believed it to be true. [Citations.] (Brown, supra, 31 Cal.4th at p. 536.) In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes) two men were beaten and shot, one fatally. (Id. at p. 165.) Codefendant Morales told Dolores Ojeda that he and codefendants Cervantes and Martinez, who were all gang members, held the victims at gunpoint and asked them where they were from. (Id. at pp ; see id. at p. 165.) Morales struck one of the victims with his handgun and ordered Martinez to search the victims for weapons. Morales shot one of the victims. When the other man ran, Morales and Cervantes shot him. Morales also told Ojeda the victims were the wrong guys. 6 (Id. at p. 167.) The Cervantes court upheld the admissibility of Morales statement against his two codefendants as against Morales penal interests. Morales did attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez. Thus, Morales statement specifically was disserving of his penal interest because it subjected him to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true. (Cervantes, supra, 118 Cal.App.4th 6 The victims were not gang members but students, and did not carry weapons. One was in the Army Reserve. (Cervantes, supra, 118 Cal.App.4th at p. 165.) 13

14 at p. 175.) The court rejected the argument that, by implying the shooting was a mistake because the victims were innocent men, Morales had tried to cast himself in a sympathetic light. The court reasoned that no sympathy would attach to three men who lay in wait for their victims, forced them to their knees, and then shot them. (Ibid.) Prior to trial, Anderson moved to exclude Salazar s statements to Gabriel Perez as hearsay subject to no exception. Anderson focused on Salazar s statements that he and Anderson encountered the victim outside; that Anderson was holding a gun in the air; that Anderson wrestled with the victim and his gun went off; and that Salazar threw the gun in the river. The trial court denied the motion, ruling the statements admissible under the exception to the hearsay rule for declarations against penal interest: [A]fter reviewing each and every one of them and the circumstances under which they were made... I do find that they qualify as declarations against interest. I ve reviewed the circumstances of the statements, whether or not they were disserving of penal interests, whether or not they had indicia of reliability, and the totality of the circumstances as well as the statements themselves and find that they do qualify under Evidence Code section So they will be admissible on that basis. 7 We review a trial court s ruling under Evidence Code section 1230 for abuse of discretion. (Geier, supra, 41 Cal.4th at p. 585.) This case does not present the extreme examples of Larry C., on the one hand, involving express attempts to cast blame on another, and Greenberger and Cervantes, on the other, where the declarant admits to having a weapon or directs or aids and abets the behavior of codefendants. But Anderson contends that this case is similar to Duarte and Smith. Anderson characterizes Salazar s statements as shifting the blame entirely to him, and casting Salazar in the role of a mere spectator. But any analogy to Duarte fails. That case involved a plainly self-serving statement casting the declarant in the role of 7 By agreement of the parties, Anderson had a standing objection to the admission of the statements. 14

15 someone who intended no harm, and implying that the user of the second gun the defendant must have been the shooter. This case is closer to Brown. Whether the statements are truly self-inculpatory is decided by viewing them in context. In the factual context of the evidence, Salazar admitted to actively participating with Anderson in a robbery attempt in which the victim was killed thereby admitting to liability for felony murder. Salazar admitted that he and Anderson encountered the victim; that Anderson had Salazar s gun; that Anderson and the victim struggled and the gun went off; and that Salazar disposed of the murder weapon and told Perez not to tell anyone about the crimes. While Salazar may not have actually admitted to Gabriel Perez that he and Anderson intended to rob someone, that was clear from the other evidence in the case. Thus, Salazar s statements an admission to felony murder and the incriminating admission to disposing of the handgun are specifically disserving to his penal interests; he would not have made those statements unless he knew them to be true. statements. 8 We conclude the trial court did not abuse its discretion by admitting the We note that any error would be harmless in the light of the other evidence, including Anderson s admissions to Johnson and Coria. Issues Raised by Both Defendants Defendants jointly contend: (1) the prosecutor committed prejudicial misconduct by posing a series of leading questions to a witness who improperly refused to testify; (2) there is insufficient evidence to support the gang enhancement and the conviction for carrying a loaded firearm while a member of a street gang; and (3) the abstracts of judgment must be amended to properly reflect the sentence on the gang enhancement to the murder conviction, and the restitution fine must be recalculated accordingly. For the 8 Even if self-inculpatory and therefore reliable, a statement against penal interest must, in addition, bear sufficient indicia of trustworthiness to be admitted. (Duarte, supra, 24 Cal.4th at p. 614.) In his opening brief, Anderson focuses on whether the statements were specifically disserving. To the extent that his argument, when coupled with that of his reply brief, could be interpreted as a contention that Salazar s statements lack sufficient indicia of trustworthiness, we reject the contention. We conclude that in the context of the evidence presented the statements have sufficient indicia of trustworthiness. 15

16 reasons set forth below, we reject defendants contentions (1) and (2). With regard to (3), and with the concurrence of the Attorney General, we direct the superior court clerk to amend the abstracts of judgment, but we leave the restitution fine undisturbed. (1) Alleged Prosecutorial Misconduct Defendants contend the prosecutor committed misconduct by posing a series of leading questions to Yamileh Serrano, Salazar s girlfriend. We agree the questioning was improper, but we find the error was cured by a jury instruction. Serrano was, to put it mildly, a reluctant witness. She testified at the preliminary hearing, admitting she knew defendants, but denying she had any conversation with Salazar about the murder. She admitted telling police about such a conversation, but claimed she had been lying because she was scared. Serrano then asked for an attorney and refused to testify any further even after a grant of transactional immunity and an order holding her in contempt. Antioch Police Detective Marty McCann testified at the preliminary hearing that Serrano had told him on October 6, 2004 about two weeks after the murder that Salazar had confessed to her that he and Anderson came upon Stephens when they were looking for someone to rip or to jack. Salazar told Serrano that Anderson got out of the car while Salazar stayed inside in order to be ready to leave; that Anderson wrestled with the victim and the gun went off; and that Salazar felt bad about the killing and felt sorry for Stephens family. Despite a bench warrant, Serrano did not appear for defendants first trial. That trial ended in a mistrial when jurors could not reach a verdict. Before defendants second trial, Serrano was taken into custody on a probation violation. The prosecutor informed the court that, should Serrano again refuse to testify, the People will be requesting that she testify in front of the jury relat[ing] to an invalid refusal to answer questions particularly in light of the gang allegations in this case. The prosecutor granted Serrano immunity for her trial testimony. Outside the presence of the jury, the People called Serrano to the witness stand. She invoked her Fifth Amendment privilege and refused to testify. The court informed Serrano she had 16

17 been granted immunity and no longer had a Fifth Amendment privilege to refuse to testify. Serrano continued to refuse to answer questions, and the trial court found her in contempt and remanded her into custody. The prosecutor asked that the court require Serrano to refuse to answer questions in front of the jury based on the gang enhancements in this case. In court the next week, also outside the presence of the jury, the People again called Serrano to the stand. Serrano continued to refuse to answer questions. The prosecutor again asked that the court require Serrano to state her refusal in front of the jury. The prosecutor then made this offer of proof: [I] believe Ms. Serrano would testify that the morning following the murder of Matthew Stephens... when she got home to her parents house, that Mr. Salazar was there. Mr. Anderson had been there. And that within about a week and a half of the murder she was at a motel with Randy Salazar and that Randy confessed to her. From this offer of proof, the trial court determined that Serrano s testimony was clearly relevant, and that it was appropriate under People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez) for the People to place Serrano before the jury and let the jury draw whatever inference it chooses from her refusal to testify. The People called Serrano to the witness stand in the presence of the jury. The following colloquy ensued: BY [THE PROSECUTOR]: Q.: Ms. Serrano, in late September or early October of 2004, did Randy Salazar tell you that he and Eric Anderson were out looking for a car to jack or rob and that they saw a guy that they thought wouldn t fight back, that he looked a little dorky, and that Eric got out of the car with the gun and wrestled with the guy, and Eric shot the guy as he was standing by the car? A.: I m still going to refuse. Q.: To what? 17

18 A.: I m going to go ahead and use my Fifth Amendment or I can t, but I m refusing to answer any questions. [THE PROSECUTOR]: Your Honor, will the Court, based on the People s grant of use immunity, order this witness to answer the question? THE COURT: Yes. [ ] Ms. Serrano, as we previously discussed, you have use immunity which was granted by the District Attorney s Office. And based on the use immunity, I m ordering that you answer these questions. THE WITNESS: I m still refusing. BY [THE PROSECUTOR]: Q.: Okay. You understand that you have no valid Fifth Amendment privileges in this case; do you not? A.: Yes, I do. Q.: And understanding that, you understand that you will be held in contempt of Court for refusing to answer these questions? A.: I understand that. Q.: Okay. And that you will be held in custody for refusing to answer these questions? A.: I understand that. Q.: And Ms. Serrano, did Randy Salazar tell you in late September or early October of 2004 that when the guy started to wrestle with Eric, because of the way Eric was holding the gun he ended up shooting the guy in the face? A.: I m refusing to answer any questions. [ ]... [ ] BY [THE PROSECUTOR]: Q.: Ms. Serrano, on in the midmorning hours between 9:00 in the morning and 11:00 in the morning, did you arrive home at your parents home in Antioch and find Randy Salazar in your bedroom? A.: I m refusing all questions. Q.: You re refusing to answer that question? 18

19 A.: Yes. Q.: Okay. And Ms. Serrano, were you in a dating relationship with Randy Salazar in 2004? A.: I m not going to answer any questions. Q.: And did Randy Salazar in September of 2004 call you on the streets his wife? A.: I m still refusing to answer that. Q.: Ms. Serrano, did Randy Salazar in late September or early October of 2004 tell you that he was very sorry for the murder of Matthew Stephens, that all Matthew was doing was getting ready to go to work, and that he had a lot of sympathy for Matthew s family? A.: Once again I m refusing to answer. Defense counsel asked the court to admonish the jury that the words of counsel cannot be considered as evidence. The court said it would consider an admonition, but did not give one at that time. Defense counsel did not object to the questioning on the ground that the prosecutor was putting forth facts as evidence in the form of leading questions. Counsel moved for a mistrial on an unrelated ground whether the jury might have seen Serrano in handcuffs in the hallway but did not raise the leading question issue. The court denied the mistrial motion. Counsel did not request an admonition at that time. In closing argument to the jury, the prosecutor made three references to supposed facts based on statements made by Salazar to Serrano that were not in evidence, i.e., had been put forward by the mechanism of the leading questions to Serrano. (1) Salazar s Statement of Remorse. The prosecutor argued: There is one undisputable in this case: Matthew Stephens was murdered on September 21st. And in the words of Randy Salazar he was a completely innocent victim. He was a guy getting ready to go to work. And in the words of Randy Salazar he didn t deserve to die. He died for selfish reasons. 19

20 (2) An Unspecified Statement of Salazar to Serrano. During argument, the prosecutor stressed that Gabriel Perez description of Salazar s confession to him was credible. The prosecutor argued that the confession was consistent with Anderson s confessions to other witnesses, and Randy Salazar s comment to Serrano. (3) The Leading Questions Themselves. The prosecutor directly referred to the leading questions which Serrano refused to answer, and argued the jury could consider the factual content of the questions. After discussing Gabriel Perez testimony, as well as Michael Johnson s, in which Johnson claimed he couldn t recall Anderson s statements to him despite Johnson s describing those statements to police the prosecutor argued: So you may choose to reject Gabe Perez, Michael Johnson, but then we have Yamileh Serrano, the witness that refused to answer any questions in this courtroom. You can consider that refusal, and you may consider what was in the question that she refused to answer. Defense counsel made no contemporaneous objection to either (1) or (2). Salazar s counsel objected to (3). During a recess, defense counsel objected that the jury could not consider the factual content of the leading questions as evidence. Defense counsel also moved for a mistrial on the grounds of prosecutorial misconduct, arguing the prosecutor had referred to matters outside the record, invited the jury to speculate as to Serrano s possible answers to the leading questions, and denied defendants their right of confrontation. The trial court agreed that the prosecutor s questions could not be considered as evidence and that the jury would be so admonished. The court denied the mistrial motion. When court reconvened the court admonished the jury that the arguments of the attorneys are not evidence. The evidence is simply what you heard from the witness stand and any documents that are submitted to you for your review. Prior to deliberations, the court instructed the jury with CALJIC No. 1.02, which reads, as here pertinent: Statements made by the attorneys during the trial are not evidence.... [ ] [D]o not assume to be true any insinuation suggested by a question asked of a witness. A 20

21 question is not evidence and may be considered only as it helps you to understand the answer. Defendants moved for a new trial based on the alleged prosecutorial misconduct discussed above. The court denied the motion, noting the court had given the cautionary instruction CALJIC No The court also noted any error would not be prejudicial given the other evidence of defendants guilt which we regard as more than substantial. The court also noted Serrano s hostile demeanor, and found the jury could have interpreted her refusal to answer questions and defiance to the Court as based on the gang mentality of not testifying against each other. Defendants argue that the prosecutor s leading questions, and jury argument based thereon, constitute misconduct. We agree that the leading questions were inappropriate. While it was permissible for the court to require Serrano claim her Fifth Amendment privilege, and refuse to answer questions, in the jury s presence (Lopez, supra, 71 Cal.App.4th at pp ), it was not permissible for the prosecutor to, in effect, introduce evidence in the form of the factual content of her leading questions. (See People v. Rios (1985) 163 Cal.App.3d 852, ) But the giving of the admonition and CALJIC No cured any error. The jury was told in no uncertain terms that a statement made, or a question posed, by an attorney is not evidence. Jurors are presumed to follow the trial court s instructions and decide the question of guilt on proper evidence. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1157; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [ We presume that jurors treat the court s instructions as a statement of the law by a judge, and the prosecutor s comments as words spoken by an advocate in an attempt to persuade. ] We find no prejudicial error. 9 (2) Sufficiency of Evidence of Gang Enhancement and Gang-Related Offense Defendants contend that there is insufficient evidence to support the gang enhancement and the conviction for carrying a loaded firearm while a member of a street 9 In light of this conclusion, we need not discuss whether defendants properly preserved the issue of prosecutorial misconduct for appeal. 21

22 gang. They claim that there is insufficient evidence that the Norteño criminal street gang had, as one of its primary activities, the commission of specified felonies. To establish that a gang is a criminal street gang for purposes of a section gang enhancement, the People must prove that the gang has as one of its primary activities the commission of one or more specified crimes.... (People v. Vy (2004) 122 Cal.App.4th 1209, 1222; , subd. (f).) The specified crimes are listed in section , subdivision (e). The People must make a similar showing to convict for the offense of carrying a loaded firearm while a member of a criminal street gang. (People v. Robles (2000) 23 Cal.4th 1106, 1115.) The standard of review for sufficiency of the evidence is well known and we need not restate it here. The People s evidence of the Norteño gang s primary activities comes from the testimony of gang expert Officer Lenderman. Lenderman testified he was a gang investigator in Antioch for almost three and a half years, from January 2004 to May He conducted followup investigations of all gang-related crimes. This included talking to gang members about their lifestyles and the crimes that they commit. He had 500 to 700 contacts with members of the Norteño gang and their rival gang, the Sureños, and had reviewed hundreds of police reports and filed interview cards. Lenderman testified that Norteños commit crimes and funnel the proceeds as taxes to support prison gangs. His knowledge of these taxes was based on articles, books, seminars, talking to former gang officers, [and] individual gang members themselves. Lenderman testified that, based on his investigations, the primary activities of the Norteño criminal street gang include everything that starts from simple vandalisms to assaults, robberies, property crimes, including auto theft, burglary, lots of selling of narcotics,... and murder. The primary activities also included carjacking and intimidation of [w]itnesses, the public, fellow gang members, rival gang members, anybody who stands to be in their way. 22

23 In his testimony Lenderman linked these primary activities directly to defendants. He also opined, in response to a hypothetical tracking the facts of the murder of Stephens, that on the morning of the murder, Anderson, as a gang member junior to Salazar, would be out to impress Salazar and not lose face: So he escalates a situation... all the way up to... murder and shoots the individual. The murder would have been committed for the benefit of the gang. It benefited the Norteño gang by show[ing] the public that... I am willing to go to the most extremes to protect myself, to protect my gang, and I will not let anybody get in the way. This testimony demonstrates that one of the primary activities of the Norteño criminal street gang was the commission of felonies such as murder, assault, robbery, burglary, carjacking, auto theft, witness intimidation, and sale of narcotics, all of which are listed in section , subdivision (e). 10 The evidence does not show, as defendants suggest, isolated criminal conduct; rather, it shows consistent and repeated commission of offenses listed in the gang statute. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) The evidence is more than substantial to support the gang enhancements and the gang-related firearm conviction. Nevertheless, defendants contend this case is similar to In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) In that case which focused to a great extent on graffiti (id. at pp , 611) the gang expert did not directly testify that criminal activities were the primary activities of the gang in question, Varrio Viejo. Indeed, he testified the vast majority of Varrio Viejo cases he knew of were related to graffiti. (Id. at p. 612.) He also testified he knew of more serious crimes, but did not reveal the foundation of that knowledge. (Id. at pp ) Alexander L. is readily distinguishable from the present case. Officer Lenderman established the foundation for his expert opinions and his knowledge of the Norteño gang 10 The offenses are listed in these provisions of section , subdivision (e): murder, subdivision (e)(3); assault, subdivision (e)(1); robbery, subdivision (e)(2); burglary, subdivision (e)(11); carjacking, subdivision (e)(21); auto theft, subdivision (e)(25); witness intimidation, subdivision (e)(8); sale of narcotics, subdivision (e)(4). 23

24 and its activities. He directly testified that the gang s primary activities included the regular commission of offenses specified in the gang statute. Defendants challenge to his testimony is without merit. (3) Abstracts of Judgment and Restitution Fine As noted, the trial court sentenced defendants under the gang enhancement by imposing a 15-year period of parole ineligibility for a gang-related first degree murder. ( , subd. (b)(5); see People v. Lopez (2005) 34 Cal.4th 1002, 1004.) But the abstracts of judgment erroneously recite that defendants suffer a separate term of 15 years to life on the gang enhancement. The Attorney General concedes the error. Accordingly, we shall direct the superior court clerk to amend the abstracts of judgment for both defendants to delete the 15-to-life term and to indicate instead a 15-year period of parole ineligibility under section , subdivision (b)(5). 11 Defendants contend that the restitution fine of $8,000 was computed on the basis of $200 per year for 40 years: the 25-year term on the firearm enhancement and the (erroneous) 15-year term on the gang enhancement. They urge that without the erroneous 15-year term on the gang enhancement, the restitution fine would have been correspondingly lower. But, as the People observe, the $8,000 was within the statutory range for restitution fines, $200 to $10,000. ( , subd. (b)(1).) Within that range the trial court has wide discretion in determining the amount, commensurate with the seriousness of the offense. ( , subd. (b)(1); People v. Urbano (2005) 128 Cal.App.4th 396, 406.) Defendants were convicted of a gang-related first degree felony murder of an innocent victim of an attempted robbery. They were sentenced in their principal terms to life without possibility of parole. The trial court could reasonably have imposed the maximum fine of $10,000. Under the circumstances of this case, the restitution fine of $8,000 is well within the trial court s discretion given the seriousness of the crimes. We decline to engage in computational exercises and leave the $8,000 restitution fine undisturbed. 11 The abstracts of judgment designate the 15-year term as being imposed under section , subdivision (b)(1), when it should properly have been subdivision (b)(5). 24