Not to be published in the official reports

Lino F. Hernandez, Alvino Joe Hernandez, and Alejandro Salas appeal from the judgments following their convictions by jury of one murder and three attempted murders. (Pen. Code, §§ 187, subd. (a), 189; 664/187, subd. (a).)¹ The jury convicted Salas of second degree murder, and convicted Lino and Alvino of first degree murder, with a true finding as to a gang special circumstance allegation.² (§§ 187, subd. (a), 189; 190.2, subd. (a)(22).) The jury also found true allegations that appellants' crimes were committed for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)); a principal personally used a firearm in the crimes (§ 12022.53, subd. (e)(1)); and Lino personally inflicted great bodily injury in their commission (§ 12022.7, subd. (a)).

Appellants raise multiple challenges to the sufficiency of the evidence to support the findings and verdicts: Alvino and Salas challenge the gang enhancement findings; Alvino and Lino challenge the gang special circumstance findings; and Salas challenges his second degree murder and attempted murder convictions. Appellants also contend that the trial court committed multiple prejudicial instructional and evidentiary errors that violated their constitutional rights. Alvino claims that the trial court cited improper factors as justification for imposing consecutive sentences for the three attempted murders.³ We affirm.

BACKGROUND

Lino, Alvino and Salas are members of Colonia Chiques (Colonia). Colonia claims a large section of Oxnard as its territory. Lino, Alvino and Salas were known as Veneno, Flaco and Barbs, respectively. They all had Colonia tattoos. Lino's tattoos included a large star on his neck and chin, in line with Colonia's use of Dallas Cowboy symbols, and another that said "187 River Rat," referring to a rival gang, and the Penal Code section for murder.

Oxnard Police Department Sergeant Christopher Williams testified as the primary prosecution gang expert witness at trial. He worked for the Department for four years, with more than 200 hours of formal criminal gang training. Williams explained that gang members gain respect and power in their gang by committing violent crimes. Gangs honor members who are killed "for their cause" as "fallen soldiers." Colonia was "one of the most violent" gangs in Ventura County.

As the senior officer in the gang unit, Williams managed the enforcement of the injunction Oxnard obtained against Colonia, based on crimes it committed between 1999 and 2003. The injunction prohibits Colonia members from associating with each other, wearing gang clothing, flashing gang signs, and drinking or possessing alcohol. It also subjects them to a 10:00 p.m. curfew. Williams had personally talked with more than 200 gang members, and listened to Colonia members planning crimes and discussing gang matters while monitoring wiretapped conversations. Williams testified that Colonia's primary purpose was committing crimes to dominate a large section of Oxnard which it claimed as its territory. He illustrated their criminal activity by describing a small sample of their crimes, including armed robbery, assault with a deadly weapon, and murder or manslaughter.⁴

In 2006, Alvino lived with his family in an apartment building at 2011 North Ventura Road in Oxnard (2011 building), north of the traditional Colonia territory. Salas and his family also lived in that building. The murder and attempted murders occurred in the courtyard of another building on the same block, at 2045 Ventura Road, where victim Abraham Lopez lived with his brothers Moises Lopez and Hector Lopez (Lopez building, or Lopez apartment). The 2011 building and the Lopez building are 416 feet apart.

Abraham and Hector belonged to a tagging group called "DSK," which had about 20 members. DSK stood for "Dark Side Krew," (or "Don't Stop Krew," "Down Southern Kalifornia," or "Dark Side Killers"). Moises associated with DSK. Their oldest brother, 29-year-old Octavio Lopez, lived nearby and often visited the Lopez apartment, but he was not a DSK member or associate.

DSK was mainly devoted to "tagging" property with its graffiti. It also defaced other groups' graffiti. DSK sometimes fought against other tagging groups. Some DSK members owned and carried weapons.

DSK member Richard Gonzalez grew up in Colonia territory. Colonia members once jumped Gonzales, while he sat on his porch, in retaliation for his tagging in Colonia territory. Colonia members also jumped Moises at McDonald's when he wore a White Sox baseball cap like those worn by Southside Chiques, one of Colonia's rival gangs. Salas, Alvino and other Colonia members drove to the home of DSK Johnny Rocha and stood outside yelling at him. Colonia members also gathered outside the Lopez apartment and yelled at its occupants.

In 2006, Salas, Alvino, Andy Sanchez (Panda) and other Colonia members regularly congregated at the Lopez building mailbox area. That made Hector feel intimidated when he went to get his mail. DSK and Colonia members crossed out each other's graffiti near the Lopez building.

On May 5, 2006, Gonzalez went to a party at the Lopez apartment. During the party, two Colonia members, including Panda, jumped DSK member Jose Delgadillo (Ohno) in the alley behind the Lopez building. After Gonzalez said, "one on one," Panda fought Ohno, while the other Colonia member fought Gonzales. Ohno knocked out Panda's tooth.

Sometime later, before September 2006, Colonia and DSK arranged for Panda and Ohno to fistfight again, "to stop problems." Alvino and Salas accompanied Panda to the alley behind the Lopez building. Panda and Ohno had just started fighting when two more Colonia members arrived, armed with aluminum baseball bats. Abraham, Moises, Hector and his friend Ralph, and a teenager were there. Abraham or Moises yelled something like, "I thought this was supposed to be a fistfight. You guys bring weapons." Alvino held a knife against the teenager and said, "Well, grab your own bats." Hector said, "Let him go." A Colonia member struck Moises with a bat, which Moises grabbed and held. Ralph picked up a stick. Things ended when Alvino pushed the teenager toward Hector.

In early August 2006, the ongoing conflict with Colonia led Abraham to acquire a .380-caliber handgun (.380). Gonzalez acquired a .357-caliber handgun (.357). Hector moved to Arizona in August 2006, to avoid the escalating Colonia-DSK conflicts.

September 4, 2006, was Labor Day and Gonzalez's 21st birthday. He spent the day shopping with Octavio and Moises. Octavio drove them back to the Lopez building in the late afternoon. Salas approached Octavio's car. When Octavio stopped the car, Salas said he wanted to arrange a fistfight between a Colonia member and "Johnny." Octavio agreed to help arrange it. Gonzalez, Moises and Octavio went to the Lopez apartment, and drank beer.

Moises's girlfriend, Michele White, drove to the Lopez building at around 6:30 p.m. on September 4, 2006, to retrieve her game console from Moises. White saw Salas's brother-in-law, Alonzo Hernandez, make a crude gesture at Moises while she was outside with him. Salas, Alvino, and Lino then approached White and Moises. Moises called his brothers to warn them that they were there, and asked them to bring a gun.

Moises and White entered the courtyard from the alley. Salas, Alvino, and Lino followed and surrounded them. (The courtyard was bordered by an alley on the west, the Lopez building on the south, Ventura Road on the east, and the building at 2051 North Ventura Road on the north.)

Octavio, Abraham, Moises, and Gonzalez went downstairs and entered the courtyard. Gonzalez, who was right-handed, carried a beer in his right hand. He had a gun in his waistband, under his shirt. Moises told White to go upstairs. White started to walk toward Ventura Road but turned back after Lino said, "Where are you going? It's all right. Nothing's going to happen." White stopped in the northeast section of the courtyard, just north of the central walkway that led to Ventura Road. The DSK and Colonia members were closer to the alley, at the west end of the courtyard.

Octavio and Abraham were in the southwest section of the courtyard, facing Lino and Alvino, who were a couple of feet north of them. Lino and Alvino each hid a gun beneath his sweatshirt. Octavio wore shorts, a t-shirt, and flip-flops. Gonzales was a foot or two behind Octavio and Abraham. Moises had moved to the northwest section of the courtyard, east of Alvino and Lino.

Addressing Octavio, Lino said, "My carnal [brother] wants you to keep his name out of your fucking mouth." He asked Octavio, "Who is going to get down [fight]?" Octavio responded that he was willing to fight, as long as no weapons were used. Pointing at Lino's sweatshirt (which then covered a semi-automatic TEC-9 "machine gun" with an attached clip), Octavio asked, "What's that you got there?" Lino pulled out the TEC-9 and started firing immediately. Alvino pulled out a nine millimeter Makarov handgun and fired it. Several shots hit Octavio, and he fell.

When the shooting started, Gonzalez dropped his beer can and started to run away. Seven shots hit him, and he fell. Gonzalez then aimed his .357 toward Lino, fired several times, and tossed it in the bushes. White was still in the northeast section of the courtyard, when a bullet struck her leg. She fell and lay still.

After Lino and Alvino started shooting, several bullets hit Abraham. He fell, loaded his .380, and fired it. While Abraham was down, Alvino pistol-whipped and shot him in the face. Alvino took Abraham's .380 and ran away with Lino.

Oxnard Police Department Officer Jeffrey McGreevy was working on September 4, 2006. He heard gunshots at approximately 6:50 p.m. and arrived at the Lopez building minutes later. McGreevy found Octavio, Abraham, White, and Gonzalez lying in the courtyard. Octavio was not responsive, and lay face down with blood pooling under his head and chest. There was a beer can near Gonzalez. Moises was also there, trying to help Octavio. When McGreevy asked Abraham, Moises, Gonzalez, and White if they knew who the shooters were, they refused to answer or said they did not know.⁵

Police at the crime scene recovered 21 expended casings from a semi-automatic TEC-9 weapon; an expended casing from a nine millimeter Makarov handgun; two expended casings and one misfired bullet from a .380 caliber handgun; and six expended casings from a .357 revolver. They found a .357 near the spot where McGreevy found Gonzalez.⁶

Several days later, an officer stopped a car in Oxnard. Alvino and his family were in the car, which contained a Makarov handgun; a TEC-9; a nine millimeter magazine with live rounds; and a TEC-9 magazine. Analyses connected those weapons to evidence from the Lopez courtyard and the shooting victims.

Octavio died within minutes of receiving four gunshot wounds. Bullets pierced his carotid artery and aorta. The surviving victims required hospitalization and extensive treatment, including surgery. Abraham lost an eye and suffered other wounds in his chest, shoulder, forearm, face, legs, and buttocks. Two bullets remain in his head. Gonzalez suffered permanent, disabling nerve damage, lost the ability to move his left foot, and needed a leg brace. Bullets remain in his right shin. White suffered a gunshot wound that pierced an artery and left numbness in her left leg.

Police officers interviewed Lino on September 26, 2006, and Salas on October 4, 2006. Both men denied that they were in Oxnard at the time of the shootings. Each man claimed he no longer associated with Colonia. Salas denied knowing DSK members Abraham, Octavio, Moises, Neil Glass, or their fellow DSK member, Johnny Rocha. Salas initially denied knowing Alvino and Lino, then said he knew them vaguely. Lino claimed that he had not handled a TEC-9 in several years.

Officers recovered Abraham's .380 from a Camarillo home where Lino reportedly lived. Police again interviewed Lino on February 26, 2007. When they advised him that the TEC-9 contained his DNA, he did not admit he used it, or offer any explanation. He did admit he owned the .380 handgun. Upon learning it had fired casings recovered from the shooting scene, he said he often loaned it to others. He refused to identify the person who returned the gun to him after Labor Day. He still denied any involvement in the shooting.

Officers re-interviewed Salas on January 14, 2008. He again denied that he was in Oxnard on Labor Day and claimed he did not associate with Colonia. Elizabeth Aragon, the mother of Anna Hernandez (Salas's girlfriend) initially told officers that Salas was with her family in Bellflower on Labor Day. She later disclosed that Salas had not been with them, and that Anna had pressured her to provide a false alibi to help Salas.

Alvino testified on his own behalf. He said it is hard for him to "see even with the glasses" because he has "keratoconus in [his] left eye and [an] astigmatism in [his] right eye." He admitted prior robbery and weapon possession convictions. Alvino had belonged to Colonia for many years. He always carried a firearm when he left home, because he anticipated he could encounter a rival at any time, and such encounters can easily erupt into deadly violence.

Alvino testified about the second Ohno-Panda fistfight. Alvino, Salas, and Panda met Abraham, Moises, Glass, Gonzalez and Ohno in the alley behind the Lopez building. Just after Panda and Ohno started fighting, two more Colonia members arrived; one of them held a baseball bat. After a "little ruckus" erupted, someone from DSK, possibly Gonzalez, said "grab a cuete [gun]." Alvino pulled out a knife, grabbed Ohno, and threatened to stab him. Alvino did not see any DSK member with a weapon. Alvino also testified that on another occasion, he saw DSK members and heard gunshots "a couple minutes later."

According to Alvino, on Labor Day, September 4, 2006, he was drinking with Lino, a Colonia member named Herbie, and a Colonia associate named Abel when Salas called him. Salas said there was going to be a fight between a Colonia member and a DSK member, and asked Alvino to provide "back up." Alvino assumed Salas would be fighting.

Approximately 90 minutes after receiving Salas's call, Alvino, Lino, and Abel rode with a man named "Loc" to a home near Salas's apartment. Alvino was carrying the TEC-9 and the Makarov. Because of recent DSK-Colonia incidents, Alvino anticipated that DSK members would be armed. They met with Salas and Panda for about 20 minutes in an alley. Alvino gave Lino the TEC-9.

Carrying their weapons, Lino and Alvino started walking toward the Lopez building, followed by Salas and Abel. Alvino and Lino encountered Moises and White in the alley. Lino greeted White. Moises and White moved into the courtyard. Alvino and Lino followed and "crowded around" them.

Alvino saw Abraham and Octavio in the courtyard. Gonzalez came downstairs. He was drinking a beer. Lino spoke to Octavio, but Alvino could not hear what they said. Alvino had been "picking" at his waistband and Octavio asked what was in his waistband. Alvino then "got scared" when he saw Gonzalez "reaching toward his hip." He recalled that during the last Ohno-Panda fistfight, Gonzalez had said, "grab a cuete [gun]."

Before Gonzalez or anyone with DSK displayed a firearm, Alvino pulled out his gun, started shooting, and struck Gonzalez once. Alvino's gun then jammed and Lino started shooting. Abraham and Gonzales fired their guns. Alvino saw Abraham lying on the ground, aiming a gun at Lino. Alvino ran to Abraham, pistol-whipped him, and took his .380.

No bullets hit Alvino or Lino. They ran from the courtyard and Loc immediately drove them to their cousin Terry's house in south Oxnard. Alvino hid the TEC-9 and Makarov under the floorboards of Terry's house. Alvino later retrieved the weapons, with the intention of disposing of them. He threw away his clothing so the police would not find it.

The defense called several witnesses to describe statements made by prosecution witnesses that were contrary to their trial testimony. Oxnard Police Department Sergeant Terry Burr testified that Gonzalez previously told officers that the Colonia members actually were looking for Rocha on the day of the shooting. Because Rocha was not then at the Lopez apartment, Gonzalez and his friend went downstairs to confront the Colonia members. On the day of the shooting, White told Burr she had known Abraham for years, and she had no current relationship with anyone living at the Lopez apartment.

DISCUSSION

Substantial Evidence Supports the Section 186.22, subdivision (b)(1)(C) Gang Benefit Enhancement and the section 190.2, subdivision (a)(22) Special Circumstance

Alvino and Salas challenge the sufficiency of the evidence supporting the jury's true finding on the section 186.22, subdivision (b)(1)(C) gang benefit enhancement. Alvino challenges the sufficiency of the evidence to support the section 190.2 special circumstance on the same ground. They claim that the evidence failed to establish that one of Colonia's primary activities included the commission of one or more of the crimes enumerated in section 186.22, subdivision (e). The record belies their claim.

When considering an attack on the sufficiency of evidence to support a criminal street gang enhancement, we view the record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)

Section 186.22, subdivision (f) defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [specified] paragraphs . . . of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." The "'criminal street gang'" component of a gang enhancement accordingly "requires proof of three essential elements." (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) The second of those elements is "that the group has as one of its 'primary activities' the commission of one or more specified crimes." The specified crimes include assault with a deadly weapon, robbery, and murder or manslaughter. (§ 186, subd. (e)(1)-(3).)

Expert testimony is admissible to prove the elements of a criminal street gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).) An expert may testify about the size, composition, or existence of a gang, an individual's membership in a gang, the primary activities of a specific gang, the motivation for a particular crime, whether and how a crime was committed to benefit or promote a gang, and gang rivalries, tattoos, colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 654-657, disapproved on another ground in People v. Vang (2011) 52 Cal.4th 1038, 1049-1050.) To establish the nature of a gang's primary activities, the trier of fact may look to both past and present criminal activities of the gang, as well as the circumstances of the charged offense. (Sengpadychith, at pp. 320, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . . " (Id. at p. 324.)

In arguing that there is not sufficient evidence to support the gang benefit enhancement, Salas and Alvino rely on an inapposite case, In re Alexander L. (2007) 149 Cal.App.4th 605. In Alexander L., the gang expert's testimony with respect to the "primary activities" of section 186.22, subdivision (f), consisted solely of the following: "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, [and] narcotic violations.'" (Id. at p. 611.) The reviewing court found this testimony insufficient to sustain the gang enhancement because information establishing its reliability was never elicited from the expert at trial. (Id. at p. 612.) In contrast, such evidence was elicited here. Williams gave detailed examples of Colonia crimes that occurred on specified dates, including armed robbery, fatal shootings, and assault with a deadly weapon. The record includes certified copies of court records relating to each case described by him. Williams personally spoke with more than 200 Colonia members, conducted several wiretap operations and listened to Colonia members plan crimes and discuss "gang business." ⁷

In reviewing a claim that insufficient evidence supports a special circumstance finding, we "must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence . . . .  We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. . . . If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638.)

The special circumstances allegation "does not require a defendant's subjective knowledge of particular crimes committed by gang members. . . ." (People v. Carr (2010) 190 Cal.App.4th 475, 488, fn. 13.) Rather, the prosecution must merely prove the defendant was aware of "the gang's illegal purposes." (Id. at p. 488.) There was ample evidence from which the jury could infer such awareness in this case. The jury could look to the circumstances of the charged offense in evaluating his awareness of the gang's criminal activities. (See Sengapadychith, supra, 26 Cal.4th at pp. 320, 323.) Lino made statements reflecting such knowledge on September 26, 2006, while speaking with detectives. For example, when a detective mentioned Colonia's conflicts with DSK, Lino made the following statements: "So I'm why would the homeys even really, you know, sweat . . . taggers when . . . we have rival gang members? [¶] And these guys are just, you know--just taggers. . . . You know, they're really no threat to us." "Tagging and gang banging is, you know, . . . two different thing[s]. [¶] . . .  [¶] [Taggers] fight with paint. You don't fight, you know, guns, knives, bricks, cars. . . . [E]verything goes in gang banging." "I was out there as a teen running around, you know, puttin' in work."