P. v. Garcia

Filed 2/11/10 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David

A. Hoffer, Judge. Affirmed in part, reversed in part and remanded.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Greg Garcia.

Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant David Alvizo.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Greg Garcia and David Alvizo were convicted of first degree murder and street terrorism, with attendant firearm use and gang enhancements. On appeal, they raise over a dozen claims relating to the trial courts handling of their case. We reject their claims for the most part but will remand for correction of certain sentencing errors and partial resentencing. In all other respects, we affirm.

FACTS

On the afternoon of October 30, 2006, Jason Gentry heard a half dozen or so pops outside his Garden Grove home. When he went outside to see what was going on, he saw two kids appellants in his front yard. Alvizo was tucking an object into his waistband, and when he and Garcia saw Gentry, they both ran. At the time, Garcia was 15 years old, and Alvizo was 2 years his senior. They were both members of the Down Crowd, a Garden Grove gang whose enemies included an outfit called the Wicked Ones.

Gentry chased appellants in his truck, but he eventually lost track of them and returned home to call the police. Upon their arrival at Gentrys house, officers discovered five shell casings and two bullet fragments in the area. However, they found no sign of any victims.

Meanwhile, appellants had made their way to the home of Alvizos girlfriend, Yesenia Chavez. Speaking with Chavez in her backyard, appellants talked about having shot a Weenie, a derogatory name for a member of The Wicked Ones. They both seemed scared and nervous, and Alvizo expressed concerned about possible witnesses, saying, Fuck, they saw me. Appellants implored Chavez to create an alibi for them, and later, when Garcias brother picked them up, they talked about going to Mexico.

The next day, the gunshot-riddled body of 14-year-old Eric Berrelleza was discovered near a woodpile in Gentrys backyard. Berrelleza, aka Villain, was a member of the Wicked Ones and no friend of the Down Crowd. Prior to the shooting, he had drawn the wrath of the Down Crowd for defacing, or plaquing up, its graffiti.

Appellants were arrested for the shooting, and while in jail awaiting trial, Garcia wrote a letter to Veronica Alvarez that was intercepted by the authorities. In the letter, Garcia made derogatory comments about the Wicked Ones and bragged about having smoked . . . Villain. He crossed out all of the Ws in the letter.

Before trial, the police found a letter in the home of Down Crowd member Wesley Brown. The letter was addressed to Alvizo at juvenile hall, and like the Garcia letter, every W in it was crossed out.

Gang expert Peter Vi explained this orthographic quirk. He said that by crossing out the Ws in the letters, the authors intended to show their disrespect toward the Wicked Ones. Vi further explained that if a member of the Wicked Ones defaced Down Crowd graffiti, as Berrelleza allegedly had done, that would be a strong incentive for payback. And, if a Down Crowd member were to take retaliatory action against such an interloper, it would enhance his reputation, as well as the reputation of the gang as a whole.

Testifying on his own behalf, Alvizo denied being a gang member or having anything to do with Berrellezas death. He admitted he was in the area with Garcia when the shooting occurred but said they were merely on their way to a restaurant at the time. He insisted he did not see the shooter or the victim, or make any incriminating statements to Chavez later on. Garcia did not testify.

On rebuttal, Police Detective Elaine Jordan testified that when she interviewed Alvizo following his arrest, he told her that prior to the shooting, he and Garcia waited for Berrelleza on the street corner for about 30 minutes. And after he arrived, they ended up by Gentrys house, where shots were fired. Although Alvizo did not confess to taking part in the shooting, he did admit he and Garcia had problems with Berrelleza.

In closing argument, the prosecutor acknowledged the evidence was not conclusive as to whether it was Garcia or Alvizo who actually shot Berrelleza. However, she argued it didnt matter in terms of their culpability because they were backing each other up and helping each other out during the shooting. Relying on aiding and abetting principles, she told the jury that regardless of who pulled the trigger, appellants were both guilty of murdering Berrelleza.

The jury convicted appellants of murder and street terrorism and found they acted for the benefit of a criminal street gang and vicariously discharged a firearm. It also found true a special circumstances allegation that Alvizo intentionally committed the murder while he was an active participant in, and to further the activities of, a criminal street gang. The court sentenced Alvizo to life in prison without the possibility of parole, and Garcia to 50 years to life.

I

Right to Counsel

Alvizo contends the court erred in denying his request to discharge his retained attorneys.^[1] Having come on the day trial was scheduled to begin, we find the request was properly denied as untimely.

Alvizo was originally represented by a deputy public defender, but in March 2007, just before his preliminary hearing, he retained Dale Elsberry and Michael Foster to be his attorneys. They represented Alvizo as the case proceeded to trial, which was set to begin on June 13, 2008. On that day, Alvizo was present in court, and both the prosecution and the defense answered ready for trial. However, the trial date was moved to June 16, and then after that, the case was trailed to June 19.

On the 19th, the case was called for trial and both sides were ready to proceed. But before things could get under way, attorney Elsberry informed the court Alvizo wanted to make a statement regarding a counsel issue that, to Elsberrys knowledge, had just come up. The court asked Alvizo what was on his mind, and he bluntly announced, I would like to fire my attorneys. Unsure what to do, the court invited input from counsel. Invoking the states right to a speedy trial, the prosecutor said Alvizo had one of two options. He can represent himself or he can have counsel that are prepared and ready to proceed, represent him. Garcias attorney concurred with this assessment. Like the prosecutor, he did not want to further delay the proceedings.

The court recognized that since Alvizo was seeking to discharge retained counsel, as opposed to appointed counsel, he was not required to show good cause. (See People v. Marsden (1970) 2 Cal.3d 118, 123 [a defendant seeking to discharge appointed counsel must demonstrate his attorney is providing inadequate representation or he and counsel are embroiled in an irreconcilable conflict].) Still, the court wanted to know the basis for Alvizos request, and therefore it had the prosecutor leave the courtroom and inquired of Alvizo as to why he wanted to fire his lawyers.

Alvizo alleged they werent doing anything for him or fighting on his behalf. When the court asked him what specifically he wanted his attorneys to do, Alvizo replied, Like go visit me at the jail, go over with me, my case. I dont know nothing about my case. I seen days go, holidays, see the defendant, I try and call my attorneys. They dont answer the phone. Like stuff like that. You know what I mean? Alvizo said the only time he got to see his attorneys was when he was in court. And even then, he did not get a chance to talk to them about anything of substance. He said, The only thing theyll tell me is theyre coming back on this date. And I was downstairs, all sad. I dont know nothing about my case. What do they say against my case?

The trial court invited attorney Elsberry to respond, and he said he and Foster had spoken to Alvizo numerous times throughout the case. As an example of this, he cited the recent court hearing on June 13. Elsberry said on that day, he discussed the case with Alvizo for a half hour or more while they were waiting for his file to arrive from another courtroom. During this conference, Alvizo told Elsberry he needed to talk to him. But when Elsberry asked him what he wanted, Alvizo wouldnt articulate anything.

After hearing Elsberrys side of the story, the court asked Alvizo how he wished to proceed. Alvizo said he wanted to go with state-appointed counsel, but the court denied his request. Explaining his decision, the judge said, I think that if the court were to appoint court-appointed counsel, at this point there would need to be another lengthy continuance. . . . [] . . . [S]tate counsel would not be ready to proceed. It would necessitate a really long continuance. There doesnt seem to be any reason to do that here. The court described Alvizos attorneys as two extremely experienced lawyers who [were] prepared and . . . ready to go. It also noted, [I]ts not a situation of a complete breakdown in communication that would hamper or impair the defendants defense. Alvizo can still talk to counsel. His problem is that counsel dont talk to him enough. Not that he cant speak to them when he tries to.

Upon denying Alvizos motion, the court began discussing pretrial matters with counsel. It then trailed the case a couple of days, until June 23, at which time appellants trial formally commenced.

As the trial court recognized, a defendant seeking to discharge retained counsel is not required to show cause for his attorneys removal. However, a defendants right to decide how to defend himself is not absolute. The trial court may deny a request to discharge retained counsel if, under the circumstances presented, it would unreasonably disrupt the orderly processes of justice. (People v. Ortiz (1990) 51 Cal.3d 975, 982.) Obviously, the timing of the defendants motion is an important factor in this regard. The law is clear that the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably dilatory or . . . arbitrarily desires to substitute [retained] counsel at the time of trial. [Citations.] (People v. Lara (2001) 86 Cal.App.4th 139, 153.)

Consistent with this rule, the trial court properly focused on the issue of delay that would have been occasioned by allowing Alvizo to discharge his lawyers on the day his trial was scheduled to begin. There is no question that this was a legitimate consideration for the court, nor is there any dispute that granting Alvizos request would have necessitated a lengthy delay in the trial proceedings, since he did not have replacement counsel at the ready, or wish to represent himself. Alvizo argues the court should have explored the possibility of appointing Elsberry and Foster to represent him at state expense. (See People v. Ortiz, supra, 51 Cal.3d at p. 989.) But there is no evidence money was an issue in this case. Rather, it appears Alvizo just wasnt happy with how Elsberry and Foster were communicating with him about the case. Under these circumstances, changing their status from retained to appointed would not have solved anything.

Alvizo also claims he made his motion as soon as he became disenchanted with his attorneys, and therefore the court should have considered his motion to be timely. However, the record does not support this claim. When the court asked him why he wanted to fire his attorneys, Alvizo said they hadnt been communicating with him, and he cited as evidence of this, their failure to visit him in jail and take his phone calls. Since Alvizo was in jail for over a year before the trial started, this suggests the basis for his grievance developed over a period of time and did not suddenly arise on the eve of trial.

We also know from Elsberry that he and Foster spent about half an hour going over the case with Alvizo at the hearing on June 13, six days before Alvizo made his request. At that time, Elsberry pointedly asked Alvizo what his concerns were, but Alvizo did not voice any specific complaints to him about his case or the way it was being handled. Nor did he say anything to the court about wanting to replace his attorneys. Instead, he waited six more days, to the day his trial was scheduled to begin, before announcing his dissatisfaction with counsel. Under these circumstances, the trial court properly denied his motion as untimely. Since allowing Alvizo to discharge his retained attorneys would have unnecessarily disrupted the orderly administration of justice, the courts decision did not infringe Alvizos Sixth Amendment right to counsel.

II

Accomplice Instructions

Alvizo contends the courts accomplice instructions were fundamentally unfair because they directed the jury to convict him and infringed his right to testify on his own behalf. We disagree.

Pursuant to CALCRIM No. 335, the trial court instructed the jury that if the crimes of murder or street terrorism were committed, then David Alvizo and Greg Garcia were accomplices to those crimes. The court also told the jury the testimony of an accomplice must be viewed with caution. Although Alvizo did not object to these instructions, we will consider his claims because the instructions allegedly infringed his substantial rights. (Pen. Code, 1259.)

Alvizo argues that in giving CALCRIM No. 335, the court effectively told the jury he was guilty simply by virtue of his association with Garcia, who, in a jailhouse letter admitted he had smoked the victim. He claims this amounted to a directed verdict because it essentially removed the jury from the decision-making process. But under CALCRIM No. 335, the jury could only consider Alvizo to be an accomplice if it found the crime of murder or street terrorism had been committed. The conditional wording of the instruction ensured the jurys basic fact-finding function was not eviscerated. (Compare People v. Flood (1998) 18 Cal.4th 470 [directed verdict resulted from jury instruction that conclusively established an element of the charged offense].)

Moreover, even if the jury found this condition was met, and thus considered Alvizo an accomplice, that would not have resulted in a directed verdict against him. To be sure, the accomplice label would have been relevant as far as Alvizos credibility was concerned, but it would not have been directly determinative of his guilt or innocence. We know this because the case against him centered on two specific theories of liability; either he was the perpetrator, i.e., the shooter, or he was an aider and abettor. As the court explained, Alvizo would be equally guilty of the crime whether he . . . committed it personally or aided and abetted the perpetrator who committed it. However, at no point did the court state, or the prosecutor suggest, Alvizos status as an accomplice made him liable for the charged offenses. Therefore, the courts accomplice instructions did not have the effect of a directed verdict.

Alvizo also contends the courts accomplice instructions infringed his right to testify. Since the instructions permitted the jury to find he was an accomplice, and because the jury was required to consider accomplice testimony with caution, Alvizo argues the instructions effectively singled out his testimony for more exacting scrutiny than the other witnesses and thereby violated the constitution.

That is not the case. As our Supreme Court has explained, [T]he testimony of an accomplice who testifies against a defendant deserves close scrutiny because he has the motive, opportunity, and means to attempt to help himself at the others expense, and . . . this rationale remains true when the accomplice who testifies against a defendant is himself a defendant. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 562.) Therefore, when a defendant who is also an accomplice gives testimony that implicates a codefendant, the court should instruct the jury to view that testimony with caution. (Ibid.; People v. Box (2000) 23 Cal.4th 1153, 1208.)

In arguing otherwise, Alvizo asks us to adopt a rule that would effectively immunize a testifying defendants statements from the usual rules applicable to accomplice testimony. But the testimony of a defendant ought not to be viewed without distrust simply because it is given by a defendant. Under the law, a defendant is surely equal to all other witnesses. But, under that same law, he is superior to none. (People v. Alvarez (1996) 14 Cal.4th 155, 219, fn. omitted.) The court did not err in instructing the jury to view Alvizos testimony with caution.

III

Improper vouching

Next, Alvizo claims the prosecutor improperly vouched for the testimony of Detective Jordan. The point is not well taken.

As part of the defense case, appellants called Jordan as a witness and questioned her about the manner in which the police investigated the shooting. She acknowledged that, although appellants are Hispanic, Gentry identified one of the people he saw in his yard following the shooting as being white. She also admitted that when shown a photographic lineup that included Alvizo, Gentry did not identify him, but instead pointed to a photo of Chris Train. As it turned out, Train lived in the area of the shooting, and the police eventually cleared him as a suspect in the case.

In cross-examining Jordan, the prosecutor did her best to emphasize Trains exoneration:

Q. And you never asked any charges to be brought against Mr. Train, correct?

A. Correct.

Q. Thats part of your job as an investigator, to find the guilty as well as clear the innocent?

[Defense counsel]: Object to the form of the question. Leading and irrelevant. I dont think shes an expert so I object to the form of the question.

[The court]: . . . The objection is overruled. The witness may answer.

A. Yes, thats true.

Q. [] So just as important during your investigation is to make sure someone thats innocent is not charged, correct?

A. Correct.

Q. Thats what happened during this investigation regarding Mr. Train?

[Defense counsel]: Objection; calls for a legal conclusion.

[The court]: . . . The objection is sustained. The next question.

Q. [] You never asked for any charges to be filed against Mr. Train; is that correct?

A. Thats correct.

Q. Did you feel that the Garden Grove Police Department did a thorough investigation regarding Mr. Trains involvement in this case?

[Defense counsel]: Object on relevancy.

[The court]: The objection is sustained.

Later, in closing argument, the prosecutor brought up Train again in discussing the issue of identification. Particularly, she argued, The other thing that the defense throws out here is [this] third person. Theres this third person, this white Caucasian. Are you kidding me? There is no evidence of a third person. There is evidence that Jason Gentry identified a person by the name of Chris Train, but the reason this is interesting is because its at a location where Chris Train lives . . . . He lives there. But who was crouching down next to the trash cans in front of that house after the crime, hiding, trying to get back to Greg Garcias house? David Alvizo. [] He had a sweatshirt on. It was thrown on the ground. How do we know that? Because Jason Gentry identified him here in court. [] So thats how you clear the innocent and find the guilty.

Based on the foregoing, Alvizo contends the prosecutor committed misconduct because she elicited testimony and argued to the jury that . . . Jordan and other law enforcement agents had done their job and sorted the guilty from the innocent, the wheat from the chaff, leaving the jury little to do but confirm the foregone conclusion previously reached by the pretrial police work. We cannot agree.

A prosecutor may not vouch for a witnesss credibility by referring to evidence outside the record or putting the prestige of her office behind their testimony. (United States v. Rudberg (9th Cir. 1997) 122 F.3d 1199, 1200.) However, so long as the prosecutors assurances regarding the apparent honesty or reliability of the prosecution witnesses are based on the facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, her comments cannot be characterized as improper vouching. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 971.)

Here, the prosecutor implied in her questioning of Jordan that Jordan and her fellow officers could be trusted in their determination that Alvizo, and not Train, was involved in the shooting. This would have been improper, had she not relied upon evidence in the record as the basis for the jury to put their trust in the officers assessment of the case. But she did. Before the prosecutor engaged Jordan in this line of questioning, defense counsel inquired of Jordan as to why Train was eliminated as a suspect in the case. Jordan explained, An interview was conducted with him. Follow-up was done by the investigator. It was determined he was not part of the scene; that he lived at the house or was visiting the house where Mr. Gentry saw the subject on the day of the shooting that he thought was the suspect. Based on this testimony, there was a sufficient evidentiary basis for the prosecutor to infer in her questioning of Jordan that the police made the right decision in going after Alvizo instead of Train.

It is also significant that, in arguing the issue of identity in closing argument, the prosecutor relied on the specific facts of the case. The prosecutor did not suggest Alvizo was guilty simply because police investigators are charged with finding the guilty and exonerating the innocent. Rather, she argued he was guilty because of the particular evidence that was presented against him. (Compare United States v. Rudberg, supra, 122 F.3d 1199 [prosecutor improperly implied his witnesses were credible based on matters that occurred outside the record of the case].) All things considered, we do not believe the prosecutor engaged in improper vouching in this case.

IV

Gang Evidence and Jurors Fear of Retaliation

Alvizo also contends the gang evidence presented against him was so inflammatory, and instilled so much fear in the jurors, that it violated his right to due process. We cannot agree.

As the trial court noted in considering this claim below, this was a very densely gang connected case. The information specifically alleged appellants were members of a criminal street gang, they carried out the murder for the benefit of their gang, and in so doing, they vicariously discharged a firearm. (Pen. Code,  186.22, subd. (b), 12022.53, subds (d), (e).) Appellants were also accused of the substantive offense of street terrorism, and as to Alvizo, it was alleged as a special circumstance that he committed murder to further the activities of his gang. (Pen. Code,  186.22, subd. (a), 190.2, subd. (a)(22).)

These allegations naturally led to extensive testimony about appellants gang, the victims gang, and the culture of gangs in general. Prosecution expert Peter Vi testified gangs will often try to instill fear in their rivals by committing crimes against them and retaliating against perceived acts of hostility. He also said gang members are naturally antagonistic to people who report their activities to the police, so-called rats or snitches. Indeed, Vi explained that being labeled a rat or a snitch could be very harmful to the health of a gang member who is sent to prison, and that is why gang members are often reluctant to testify in court.

Not surprisingly, perhaps, the gang component of the case had an unsettling effect on some of the jurors. Even before Vi testified, one of the alternate jurors told the court clerk she was feeling distraught over the case. When the court questioned her in chambers about her feelings, she said certain aspects of the case were very upsetting to her. Asked whether the gang component of the case contributed to her feelings, she said, It could. . . . I live so close to here its just, I dont know. Fearing she would be unable to participate in jury deliberations if called to do so, the court excused her from service.

Later on, during the course of Vis testimony, the court learned Juror No. 102 also had misgivings about serving on the case. During an in-chambers conference, she stated, Im just scared to death. Ive lived here all my life, two minutes down the road. Im afraid to go home. I cant live this way. . . . I live at the same place Ive lived all my life. And for the first time, Im scared. I dont want to do this. Explaining why the gang component of the case was so frightening to her, she said, Im a single mom. I have a little boy 13 years old. He has to go to school with these kids. . . . I dont want this. The judge tried to assuage her fears, and when that didnt work, he removed her from the case.

At that point, Vis testimony resumed, and he proceeded to explain the difference between taggers, i.e., those who are merely involved in spreading gang graffiti, and full-fledged gang members. In the course of this testimony, Vi said that in the prison setting, gang members will get protection from the Mexican Mafia, whereas taggers will not.

It was during this phase of the trial that the parties discussed the admissibility of the letter in which Garcia admitted he had smoked the victim Berrelleza. The defense argued the letter, along with the other gang evidence admitted in the case particularly Vis reference to the Mexican Mafia was so prejudicial appellants could not get a fair trial. Citing due process concerns, they asked the court to declare a mistrial or dismiss the charges altogether. The court denied their request and allowed the prosecution to introduce Garcias letter into evidence. While recognizing appellants concern about the amount of gang evidence presented, the court determined it was appropriate considering the nature of the charges and its relevance to the issues of motive and intent. The court did not believe the evidence was unduly prejudicial or violative of appellants due process rights.

In the wake of this ruling, Juror No. 4 asked to be excused from the case. During an in-chambers hearing, she told the court she initially assumed appellants were innocent, but she had now made up her mind they were guilty, and nothing could convince her otherwise. She also stated, Im a little scared for my life right now because I live in the area. My sister lives, like, two streets away from the Down Crowd house. And Im really scared for my family. [] And I pick up my nephew at Walton after school. So I just feel if I stay here any longer, that they would remember me. I see Greg (Garcia) looking at me all the time. I get scared. The court tried to allay her fears and urged her to keep an open mind about the case, but she said she couldnt overcome her feelings, and therefore the court removed her from the case.

Subsequently, during deliberations, the jury sent the judge a note which stated, There is a concern amongst the jurors as to any repercussions or retaliation against the jurors. There is a specific concern with a couple of jurors who live close to a few people involved in this case. We need information if the addressee in [Garcias jailhouse letter] is in a gang. We also need to know if the gang Down Crowd is affiliated with a gang in Stanton called Crow Village . . . .

The court discussed the note with counsel during an in-chambers conference. Although the defense felt the note was grounds for the court to reconsider its ruling on their motion for a mistrial, the court disagreed. Rather than revisit that issue, the court decided it would suffice to tell the jurors: 1) Retaliation against jurors in gang cases is extremely rare; 2) their identifying information would be kept confidential; 3) they must not let bias, sympathy, prejudice, public opinion or concern about retaliation influence their decision; and 4) once the case was over, they would be escorted to their cars out the rear door of the courthouse.

Relying on People v. Albarran (2007) 149 Cal.App.4th 214, Alvizo contends the court should have granted his motion for a mistrial. However, Albarran is readily distinguishable. In that case, the shooting in question was carried out by a gang member, but there was no evidence of a gang motive or any reason to believe the shooting was gang related. Nevertheless, the prosecution relied heavily on the shooters gang status, as well as his ties to the Mexican Mafia, to besmirch his character and establish his culpability. In fact, [t]he paramount function of [the gang] evidence was to show [the shooters] criminal disposition[.] (Id. at p. 228.) Under those circumstances, the gang evidence was both irrelevant and highly prejudicial. (Id. at pp. 222-232.)

Here, in contrast, there was substantial evidence the shooting was carried out to avenge a grievance between rival gangs. That put the gang issue squarely on the table from the beginning. Moreover, the gang evidence was not admitted or used to show appellants propensity for criminal conduct. Rather, it was admitted to prove the very charges for which they were on trial. And finally, gang expert Vi only mentioned the Mexican Mafia to explain the difference between taggers and gang members; he did not portray appellants as having allegiances to that notorious organization. Therefore, unlike Albarran, this was not one of those rare and unusual cases where the admission of gang evidence violated due process.

While we are mindful several jurors expressed concern about serving on this case, there was no evidence that anyone on the jury was actually threatened, and the court made it a point to inform the jury that retaliation against jurors is an exceedingly rare phenomenon. The court also specifically admonished the jurors not to let fear of retaliation effect their verdict.

Despite this, it is obvious the gang evidence made some jurors reluctant to convict. Its most telling effect, then, was to work in favor of the defense. For all of these reasons, we conclude the gang evidence was properly admitted and did not undermine appellants right to a fair trial.

V

Appellants Absence From Certain Proceedings

Appellants contend the trial court violated their right to be present during the trial and to due process by conducting various proceedings in their absence. We find no violation of appellants rights in this regard.

The rule is established that a defendant has a federal constitutional right that emanates not only from the confrontation clause of the Sixth Amendment but also from the due process clause of the Fourteenth Amendment to be present at any stage of the criminal proceedings that is critical to its outcome if his presence would contribute to the fairness of the procedure. [Citations.] [Citation.] It is also settled, however, that a defendant does not have a right to be present at every hearing held in the course of a trial. During trial, a defendant is not entitled to be personally present at the courts discussions with counsel occurring outside the jurys presence on questions of law or other matters unless the defendants presence bears a reasonable and substantial relation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefitted the defense. [Citation.] [Citation.] (People v. Hernandez (2009) 178 Cal.App.4th 1510, 1535.)

As discussed above, the questioning of an alternative juror and two sitting jurors about their fear of retaliation occurred in chambers with counsel present, but outside the presence of appellants. This was done to make the jurors feel more relaxed, and both sides stipulated to this procedure. Nonetheless, appellants assert their absence from these proceedings was prejudicial because they could have assisted counsel in demonstrating to the subject jurors that their fear of retaliation was unfounded. We disagree. The court spent a considerable amount of time trying to convince the jurors of this, and both the prosecutor and defense counsel contributed to the courts efforts in this regard. We do not believe appellants presence would have had a significant effect on the proceedings, except perhaps to complicate those efforts and exacerbate the jurors existing feelings of fear and trepidation. Therefore, appellants absence from the hearings is not cause for reversal. (See People v. Fauber (1992) 2 Cal.4th 792, 836-837 [defendants absence from proceedings not prejudicial where counsel stipulated to absence and defendant failed to show resulting prejudice or denial of fair trial]; People v. Thompson (1990) 50 Cal.3d 134, 175 [defendants absence from proceedings not prejudicial where counsel stipulated to absence and defendant failed to show he could have played a significant role in the proceedings].)

Appellants also complain about the fact the court failed to include them in discussions regarding how to respond to the jurys note about fear of retaliation. They argue their presence was essential at the hearing, but they fail to explain how, if present, they would have contributed to the discussion that occurred. As we have noted, A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefited the defense. [Citation.] (People v. Lang (1989) 49 Cal.3d 991, 1027.) As appellants have failed to carry this burden, their absence from the hearing on the jurys note is not cause for reversal. (Ibid.; see also People v. Cole (2004) 33 Cal.4th 1158, 1231-1232 [defendants absence from hearing on jury instructions was not grounds for reversal]; People v. Morris (1991) 53 Cal.3d 152, 210 [same].)

VI

The Letters

Appellants also challenge the admissibility of the letters that were used against them at trial. We find the letters were properly admitted into evidence.

The letter implicating Alvizo was found in the home of Down Crowd member Wesley Brown. It was not signed, stamped or dated, but was addressed to Alvizo in juvenile hall. The letter makes clear the Down Crowd does not take kindly to rats or rival gang members. Although the letter does not mention the Wicked Ones gang by name, gang expert Vi said the crossed-out Ws in the letter were a clear expression of animosity toward that outfit.

Vis testimony in this regard was no doubt relevant in terms of showing a potential motive for the shooting. While there was no direct evidence that Brown knew Alvizo, or vice versa, the letter was found in Browns home, it was addressed to Alvizo, and there was substantial evidence, apart from the letter, that both Brown and Alvizo were members of the Down Crowd. That is enough to support the inference that Alvizo was the intended recipient of the letter.

As for prejudice, the letter did reflect a certain antipathy toward government informers and members of the Wicked Ones. However, it was not intended to show the Down Crowds propensity for violence. Rather, it was admitted to establish Alvizos relationship to the Down Crowd and to show his motivation for the shooting; in other words, to prove his actions were gang related. Therefore, on balance, the letter was relevant, was not unduly prejudicial, and we find no abuse of discretion in its admission. (See generally People v. Horning (2004) 34 Cal.4th 871, 900 [The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value.].)

Like Alvizo, Garcia also complains about the admission of a letter the one he penned in jail about having smoked Berrelleza. Garcia admits the letter had obvious relevance to the case, yet he claims it should have been excluded because it was not disclosed to the defense until midway through the trial. But the prosecutor offered a good reason for that. In a hearing on the issue, she told the court the letter was not intercepted by jail personnel until the eve of trial, and it took several days for the letter to work its way through the jails chain of command. Once she learned of the letter, she immediately told the court and opposing counsel about it, and disclosed her intention to introduce it into evidence. The trial court found the disclosure of the letter was timely under these circumstances, and we agree.

If discoverable material becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown . . . . (Pen. Code,  1054.7.) Garcia suggests that rather than disclosing the letter immediately, the prosecutor may have intentionally kept it under wraps as a means of sandbagging the defense. But there is absolutely no evidence of this. To the contrary, the record shows the prosecutor revealed the letter to the court and to the defense as soon as she became aware of it. That being the case, there was no discovery violation, and the letter was properly admitted into evidence. (People v. Hammond (1994) 22 Cal.App.4th 1611.)

VII

Sentencing Claims

As to the murder count, the trial court sentenced Alvizo and Garcia to life without the possibility of parole, and 25 years to life, respectively. It then enhanced each of their sentences by 25 years to life, based on the jurys finding they vicariously discharged a firearm resulting in the victims death. To appellants benefit, the court struck the gang enhancement for sentencing purposes and imposed a concurrent term on the street terrorism count.

Relying primarily on the fact he was 15 years old at the time of the shooting, Garcia argues his sentence of 50 years to life is unconstitutional. However, we are not persuaded. The United States Supreme Court has ruled it is cruel and unusual to impose capital punishment on a juvenile offender. (Roper v. Simmons (2005) 543 U.S. 551.) But Garcia wasnt sentenced to death, so he does not fall within the ambit of this decision. (See Gregg v. Georgia (1976) 428 U.S. 153, 188 [recognizing that in terms of the Eighth Amendment death is different from other forms of punishment]; People v. Demirdjian (2006) 144 Cal.App.4th 10, 16 [Roper v. Simmons, supra, is not controlling on the question of whether a juvenile offender can be sentenced to life in prison].)

Currently, the United States Supreme Court is considering whether, in the context of non-homicide offenses, it is cruel and unusual to sentence juvenile offenders to life in prison without the possibility of parole. (See Graham v. State (Fla.App. 2008) 982 So.2d 43 [sixteen-year-old sentenced to life without the possibility of parole for armed burglary and attempted robbery], cert. granted May 4, 2009, __ U.S. __ [129 S.Ct. 2157, 173 L.Ed.2d 1155].) However, the courts resolution of this issue is not likely to be dispositive as to Garcia, given that he was convicted of murder. Suffice it to say, as the law currently stands, there is no blanket prohibition against the imposition of a life sentence for juvenile offenders who, like Garcia, take the life of another.

Still, a sentence may be considered cruel and unusual if it is grossly disproportionate to the defendants culpability. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [articulating federal standard of review]; accord, People v. Dillon (1983) 34 Cal.3d 441, 478 [sentence will not be deemed cruel or unusual under the state Constitution unless it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.].) Although this allows for an analysis of the specific circumstances of the case, including the defendants personal characteristics, the fact of the matter is, Findings of disproportionality have occurred with exquisite rarity in the case law. [Citation.] (In re Nunez (2009) 173 Cal.App.4th 709, 725.)

Here, the record shows Garcia was 15 years old and possessed no criminal record at the time of the shooting. However, in terms of criminal experience and sophistication, he was probably pretty advanced for his age when he and Alvizo gunned down Berrelleza. Garcia joined the Down Crowd when he was 14 years old, and his actions in the present case were quite clearly gang related. In fact, the shooting smacked of a deliberate retaliatory hit and resulted in the death of a young, unarmed victim. And while the jury was not called on to decide who actually fired the fatal shots, Garcia admitted in his jailhouse letter that he had smoked the victim.

This is not a case where the victims death resulted from the panicked actions of a young and immature defendant who harbored no homicidal intentions. (Compare People v. Dillon, supra, 34 Cal.3d 441.) Rather, the evidence demonstrates appellants deliberately set out to confront a rival gang member with a loaded firearm and then callously ended the victims life in barrage of gunfire. That the shooting occurred in the middle of the afternoon on a public street corner underscores the sheer viciousness of their actions. Considering all the circumstances surrounding the shooting, as well as Garcias background and characteristics, we do not believe his sentence is unconstitutional. (See People v. Em (2009) 171 Cal.App.4th 964 [upholding a 50-year-to-life sentence that was imposed on a 15-year-old defendant who aided and abetted a gang-related murder].)

Turning to Alvizos sentencing claim, he contends the trial court failed to exercise its discretion in sentencing him to life in prison without the possibility of parole for the crime of first degree murder. The Attorney General agrees, and so do we.

At the time of the murder, Alvizo was 17 years old. Because of this, and because the jury found true the special circumstances allegation that he committed the crime while he was an active participant in, and to further the activities of, a criminal street gang, the trial court had two sentencing options. It could confine Alvizo in the state prison for life without the possibility of parole, or, at the discretion of the court, 25 years to life. (Pen. Code, 190.5, subd. (b), italics added.)

The record does not contain any reference to the trial courts discretion in this regard. It was not brought up in Alvizos presentencing probation report or mentioned by counsel at the sentencing hearing, nor did the court allude to it when imposing sentence. This silence suggests a lack of awareness by the court and counsel alike of the discretion [the law] confers to impose on a youthful offender a 25-year-to-life term instead of a [term of life without the possibility of parole.] (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1093.) Therefore, as the Attorney General concedes, the matter must be remanded for resentencing so the court can exercise its discretion in sentencing Alvizo on the murder count.

The Attorney General also admits the trial court erred in failing to award appellants any presentence custody credits. Because they were convicted of murder, appellants were not entitled to presentence conduct credits (Pen. Code, 2933.2), but they were entitled to credit for the actual time they spent in custody (Pen. Code, 2900.5; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647). Therefore, the trial court must award them appropriate credit on remand.

One other sentencing correction is in order. As we have noted, for the crime of murder in count one, the trial court sentenced Garcia to 25 years to life, plus 25 years for the firearm enhancement. However, the abstract of judgment and minute order of the sentencing hearing incorrectly state the firearm enhancement was imposed with respect to count two. The trial court must also ensure this clerical error is corrected when it considers the case on remand.

DISPOSITION

Alvizos sentence is vacated, and the matter is remanded for partial resentencing. On remand, the court shall 1) exercise its discretion in deciding whether to sentence Alvizo to life in prison without the possibility of parole, or 25 years to life, for the crime of murder; 2) award appellants proper presentence custody credit; and 3) ensure the record reflects that Garcias firearm enhancement was imposed with respect to count

one, the murder count. The clerk of the superior court shall prepare a new abstract of judgment reflecting these actions and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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^[1] Garcia joins Alvizos arguments to the extent they apply to him, but this one quite clearly does not.