P. v. Leonel

Filed 10/23/07 P. v. Leonel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendants Orbin Santos Leonel (Santos)[1] and Esteban Argomaniz (Argomaniz) were convicted by jury trial of attempted willful and premeditated murder (Pen. Code,  187, 189, 664) and shooting at an inhabited dwelling (Pen. Code, 246). The jury also found that the offenses were gang crimes (Pen. Code, 186.22, subd. (b)(1)(C)) and that a principal in the attempted murder offense had personally and intentionally discharged a firearm (Pen. Code, 12022.53, subd. (c)). Santos and Argomaniz were each committed to state prison for a term of 15 years to life, consecutive to a 20-year determinate term.

On appeal, defendants contend that (1) the shooting at an inhabited dwelling count is not supported by substantial evidence, (2) the trial court prejudicially erred in admitting evidence of statements made during jail telephone conversations by Santos that implicated Argomaniz and by Argomaniz that implicated Santos, (3) the trial court prejudicially erred in allowing a gang expert to testify regarding information on field identification cards and in failing to give a limiting instruction regarding this testimony, (4) the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter as to the attempted murder count, (5) the trial court prejudicially erred in failing to instruct on two lesser included offenses as to the shooting at an inhabited dwelling count, and (6) trial counsel were prejudicially deficient in failing to request a pinpoint instruction on provocation in connection with the premeditation allegation. We reject each of their contentions and affirm the judgments.

I. Factual Background

David Herrera (David) and his mother Rosie Herrera (Rosie) live in adjacent duplexes on Topeka Avenue near the corner of Forest Avenue in San Jose. Their homes are in an area that is claimed by a Norteno gang as its territory. On May 22, 2004, at about 3:20 p.m., Rosie and David were both out in front of their homes throwing away their garbage. David saw a Champagne-colored SUV pass by on Forest Avenue, and he noticed that the occupants of the SUV were giving him a harsh stare and throwing their gang signs.[2] There were three people in the SUV, with one of them in the back seat. The driver of the SUV, Argomaniz, was the one making gang signs by displaying three fingers.[3] Santos, who was the front passenger and appeared agitated, was giving David a harsh stare and yelling [s]ur trece and the like out of the drivers window. Santos, who had a shaved head, was wearing a white sweater and had a round medallion on a chain hanging from his neck.

Because David, whose one-year-old daughter was with him, was concerned about the conduct of the men in the SUV, he said Hey and made a peace sign with his hand. David heard a screeching, and the SUV made a U-turn, came back up Forest, turned on Topeka, and stopped in the middle of the street in front of Rosies home. David and his daughter immediately [t]ook cover.

Santos leaned over Argomaniz inside the SUV and pulled out a gun. Santos then sat on the sill of the passengers window and faced the Herreras homes, with his head visible over the roof of the SUV. Rosie called out to the SUV [w]e dont want no problem.[4] Santos pointed the gun at Rosie and David. He seemed to have some trouble with the gun, apparently caused by the gun jamming. After he adjusted the gun, he began firing. He was aiming at the front of Rosies house. Rosie hid behind a van in front of her home. At least one shot hit Rosies house near where David had been standing. After three to five shots had been fired, the shooting stopped, and the SUV sped away. The shooting was observed by Rosies next-door neighbor and her across-the-street neighbor, who immediately called 911. The across-the-street neighbor observed that the shooter was bald and wearing a white shirt.

The police were immediately summoned, and they arrived within a couple of minutes. David provided a description of the SUV and its occupants that included the color (Champagne), make and model (a Chevy Tahoe) of the SUV and the first digit (5) of its license plate. This description was broadcast to police officers in the area. An officer spotted a Champagne-colored Chevy Tahoe in Campbell less than ten minutes after the shooting and followed it. The vehicles license plate began with a 5. After a few minutes, the officer stopped the SUV. Argomaniz was driving the SUV, and Santos was in the front passenger seat. Arturo Moran, Jr. was in the back seat.

David was brought to where the SUV had been stopped. He initially identified Moran as the shooter and Argomaniz as the driver. Shortly after his arrest, Moran told the police I didnt do it. Check the fingerprints. I never touched the gun.

A small, black, six-shot .22 caliber revolver was found in a storage bin in the center console of the SUV, beneath a CD holder. The revolver had black electrical tape around its handle. An unspent cartridge was in the chamber of the revolver, but there were no cartridges in the cylinder. Gunshot residue (GSR) was found on Santoss right hand after his arrest. GSR was also found on a white T-shirt that was taken from Moran at the time of his arrest. No GSR was found on the hands of Argomaniz or Moran after their arrests.

II. Procedural Background

Santos and Argomaniz were charged by information with two counts of attempted willful, deliberate and premeditated murder (Pen. Code, 187, 189, 664) and one count of shooting at an inhabited dwelling (Pen. Code, 246). It was further alleged that the offenses were gang crimes (Pen. Code, 186.22, subds. (b)(1)(C), (b)(4)) and that a principal in the offenses had personally and intentionally discharged a firearm (Pen. Code, 12022.53, subd. (c)).

Moran, who had pleaded guilty to lesser charges, testified at trial for the prosecution.[5] Moran was a member of the Varrio Sur Town (VST) gang, and he went by the moniker Spooks. His younger brother, known as Lil man, was also a member of VST. Moran was in the SUV with Argomaniz and Santos [j]ust cruising at the time of the shooting. Argomaniz was driving, Santos, who was wearing a white sweater, was in the front passenger seat, and Moran was in the back seat. Moran did not believe that Argomaniz was a VST member. Moran and the other men saw a man in front of a house appearing to be [t]hrowing up the 1-4 with two hands. This man appeared to be displaying one finger on one hand and four fingers on the other. Moran interpreted this hand sign as indicating that the man was a rival gang member. The SUV made a U-turn, stopped in front of the mans house, and Santos, while sitting on the passengers door, fired four or five shots. When Santos was done shooting, he said [g]et the fuck out of here, and the SUV just took off. They were soon stopped by the police.

The prosecution introduced testimony by a gang expert to support the gang allegations. It also introduced evidence of the content of several jail telephone conversations between Santos and third parties and between Argomaniz and third parties in which both men implicated themselves and each other in the shootings.

Argomanizs trial counsel conceded in his closing argument that Argomaniz was the driver of the SUV, but he asserted that Argomaniz had lacked the requisite intent to aid and abet Santos.[6] Although he conceded that Argomaniz had previously been a gang member, he claimed that Argomaniz was no longer a gang member at the time of the shooting. Santoss trial counsel argued to the jury that Moran, not Santos, had been the shooter. He also maintained that, even if Santos was the shooter, he had lacked the intent to kill.

After a day and a half of deliberations, the jury found defendants guilty of the attempted, willful, deliberate, and premeditated murder of David, and found the gang and firearm allegations true as to that count, but it acquitted them of the attempted murder of Rosie. Both defendants were also convicted of shooting at an inhabited dwelling, and the gang allegations as to that count were found true. Each defendant was committed to state prison for a term of 15 years to life consecutive to a determinate term of 20 years. Defendants filed timely notices of appeal.

III. Discussion

A. Sufficiency of the Evidence: Shooting at Inhabited Dwelling Count

Defendants challenge the sufficiency of the evidence to support the shooting at an inhabited dwelling count on the ground that there was no evidence that Santos shot at any house or intended to hit any house. They claim that the jurys finding that Santos intended to kill David establishes that Santos did not intend to hit the house.[7]

Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house . . . is guilty of a felony . . . . (Pen. Code, 246.) Penal Code section 246 is a general intent crime. [Citations.] There is no requirement that the defendant intend to strike the building. [Citation.] As for all general intent crimes, the question is whether the defendant intended to do the proscribed act. (People v. Jischke (1996) 51 Cal.App.4th 552, 556 (Jischke).) A defendant who fires shots at a person who is standing in front of a house harbors the requisite general intent. (People v. Chavira (1970) 3 Cal.App.3d 988, 993 (Chavira); People v. Overman (2005) 126 Cal.App.4th 1344, 1356-1358 (Overman).)

The act proscribed by Penal Code section 246 is discharging a firearm at a house. Santos fired several shots at David, who was standing in front of Rosies house, and at least one of these shots hit Rosies house. Santoss gun had to have been aimed at Rosies house, because that was where David was standing. This evidence clearly established both the requisite act and the requisite intent. The act was Santoss firing of his gun at Rosies house, that is, in the direction that he was aiming it. The intent was Santoss intention to fire his gun in that direction. Nothing more was necessary. Substantial evidence supports the Penal Code section 246 convictions.

B. Jail Telephone Conversations

Santos challenges the admission of Argomanizs jail telephone conversations, and Argomaniz challenges the admission of Santoss jail telephone conversations. They claim that the admission of this evidence violated their confrontation rights.

1. Background

A computer system records all of the telephone calls made by jail inmates except privileged calls to attorneys. However, these recordings are only downloaded and listened to by a human being if there is a request by a law enforcement agency for a copy of the recording. A police officer requested that jail telephone calls by Argomaniz and Santos be downloaded for his review.

The audio recordings, which were in Spanish, were played for the jury, and English transcripts were admitted into evidence at trial. At the beginning of each telephone call, a recording said [t]his call is subject to monitoring and recording. Argomaniz is known as Night Owl, Santos is known as Chespy, Mago, or Magic, and Moran is known as Spooks.

On May 30, 2004, Argomaniz had a conversation with an unidentified male. The male said Chespy is ratting on you and thats why they charging you and Spooks. He insisted that Santos was putting the blame on you guys. The male offered that when I see him, Ill fuck him up for you. Argomaniz said: Hes so stupid. He has his fingerprints on the gun, guy.

On June 3, 2004, Santos had a conversation with Lori. Lori said: Niteowl said talk to Mago and tell him not to blame me. Hes the one with more to lose, you understand me? Santos responded by saying that Argomaniz knows that hes not going to lose that because the gun has my fingerprints. [T]he gun has my fingerprints. All the finger prints of the rest of the Homies . . . I knew how to do the job but I fucked up because the fucking gun didnt go off. I dont know if Niteowl told you but it didnt go off when I was with the Bastardo. [A]nd I burnt off all the fingerprints from that Homie. I burnt the handle since it was plastic. I burnt it with a lighter and then I put tape and I painted it with a liquid because we scratched it with the ground. Santos told Lori about things he had done when he was all crazy, including almost kill[ing] a little kid. After this, thats when I ran into that guy and I got down and the fucking gun wouldnt go off. It finally went off and thats when all this shit happened.

On June 3, 2004, Santos also talked to Vanessa and Lil man, who is Morans younger brother Santos asked Vanessa to check in the truck where you put the CDs in because there might be something.

On June 3, 2004, Argomaniz spoke to an unidentified female. Argomaniz told the female that he had heard Santos is ratting on me. The female asked him: Did you ever touch it? Was it ever in your hands? Argomaniz said No, it was hidden inside, and denied having ever touched nothing.

On June 4, 2004, Argomaniz talked to Vanessa. He asked Vanessa to do me a favor and go check in the truck in the center where you put the CDs. Open it and look inside and see if there is something inside of it. Vanessa said: I already looked. Magic told me to check and there was nothing inside. Argomaniz responded: Fuck, so then . . . Im screwed.

On June 4, 2004, a couple of hours after Argomanizs conversation with Vanessa, Santos talked to Vanessa again. Santos told Vanessa to tell Lil man that Spooks should tell the truth. Santos described the truth that Moran should tell as that they went to do that thing and that the guy who . . . did that got down . . . and he left that gun on the seat and when they picked me up, I got up, and it was there. I went and hid it, okay?

2. Preservation of Objections

The prosecution filed an in limine motion seeking a ruling on the admissibility of the audio recordings and English transcripts of these six telephone calls. The prosecutor asserted that this evidence was fully admissible against both defendants because they were declarations against interest. At the in limine hearing, Santoss trial counsel asserted that Argomanizs statements implicating Santos as not only being at the scene, but being the shooter violated Aranda-Bruton.[8] He also objected to a lot of levels of hearsay coming from people who are not in the process, meaning the friends that are being talked to are conveying information. Santoss trial counsel asserted that the admission of this evidence would violate Santoss confrontation rights. The court rejected Santoss trial counsels objections.

During trial, Santoss trial counsel informed the court that, although we addressed this issue in limine, Im planning to renew my objection at the time the matters are introduced . . . . Just before the recordings were played for the jury, Santoss trial counsel renewed his objection on three grounds: Aranda-Bruton, Crawford[9] and hearsay. The court overruled the objection.

On appeal, Santos asserts that the admission of this evidence violated his state and federal constitutional rights. His appellate contentions are premised solely on Aranda-Bruton and Crawford.[10] He claims that the statements of Argomaniz and those to whom he was speaking during these telephone calls were testimonial hearsay that should have been excluded upon his objection that his confrontation rights were being violated. Santos identifies the offending statements as: (1) the assertion that Santos is ratting on Argomaniz; (2) Argomanizs statement that Santoss fingerprints [are] on the gun; and (3) references by both Argomaniz and Vanessa to the location where the gun was found. It appears that Santos has adequately preserved his confrontation objections for appellate review.

Argomaniz makes similar appellate claims regarding the admission of evidence of Santoss statements. It is doubtful that he properly preserved these objections below, but the Attorney General does not contend that Argomaniz has forfeited this contention.[11] Therefore, we will address the merits since Argomanizs contentions fail for the same reasons that Santoss contentions fail.[12]

3. Analysis

Because the Confrontation Clause applies only to testimonial hearsay, the first question is whether the challenged statements were testimonial. Under Crawford, . . . the Confrontation Clause has no application to [out-of-court, nontestimonial statements not subject to cross-examination] and therefore permits their admission even if they lack indicia of reliability.[13] (Whorton v. Bockting (2007) ___U.S. ___, ___ [127 S.Ct. 1173, 1183] (Whorton).) As Bruton, supra, 391 U.S. 123, like Crawford, is based solely on the Confrontation Clause, Bruton, like Crawford, is inapplicable where the statements at issue are nontestimonial. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. (Davis v. Washington (2006) ___ U.S. ___, ___ [126 S.Ct. 2266, 2273] (Davis).) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, at pp. ___ [126 S.Ct. at pp. 2273-2274.)

The statements in Davis were made during a 911 call. The United States Supreme Court concluded that these statements were nontestimonial because a 911 call is ordinarily not designed primarily to establis[h] or prov[e] some past fact, but to describe current circumstances requiring police assistance. (Davis, supra, ___ U.S. at p. ___ [126 S.Ct. at p. 2276].) [The caller] simply was not acting as a witness; she was not testifying. What she said was not a weaker substitute for live testimony at trial . . . . (Davis, at p. ___ [126 S.Ct. at p. 2277.) The United States Supreme Court has not yet considered or decided whether and when statements made to someone other than law enforcement personnel are testimonial. (Davis, at p. ___ [126 S.Ct. at p. 2274, fn. 2].)

In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court considered the issue of whether a statement to a person unaffiliated with law enforcement was testimonial. In Cage, the victim had made a statement to a physician about the offense. The court concluded that the statement was nontestimonial. Objectively viewed, the primary purpose of the question, and the answer, was not to establish or prove past facts for possible criminal use, but to help Dr. Russell deal with the immediate medical situation he faced. (Cage, at p. 986.) Moreover, the context of the conversation had none of the formality or solemnity that characterizes testimony by witnesses. In speaking with Dr. Russell, John did not confront structured questioning by law enforcement authorities. There is no evidence that Dr. Russell was acting in conjunction with law enforcement, or that his question about the cause of Johns injury had any evidence-gathering aim. So far as the record discloses, Dr. Russell made no effort to record or memorialize Johns statements for later legal use. John faced no criminal sanction for any false statements he might make. The question and answer occurred in a private conversation between a patient and his doctor, by which both presumably sought only to ensure Johns proper treatment. (Cage, at p. 987.) If a statement made under interrogation to a law enforcement official is nontestimonial where the circumstances objectively indicate that it was not primar[ily] [for the purpose of] establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution [citation], we cannot assume the [United States Supreme Court] would apply a different, more stringent standard to a noninterrogational statement made outside the context of law enforcement. It seems clear the court would consider such a statement within neither the core nor the perimeter of the concerns addressed by the confrontation clause. (Cage, at pp. 987-988.)

Under Davis and Cage, the statements made by Argomaniz, Santos, and the recipients of their calls were all nontestimonial. None of the speakers on the recordings was acting as a witness (Davis, supra, ___ U.S. at p. ___ [126 S.Ct. at p. 2277]), and the conversations lacked the formality and solemnity that characterizes testimony by witnesses. (Cage, supra, 40 Cal. 4th at p. 987.) No structured questioning occurred, and Argomaniz, Santos and their friends made no apparent effort to record or memorialize [their] statements for later use. (Cage, at p. 987.) Although Argomaniz, Santos and their friends were warned that the calls were subject to monitoring and recording, it was obvious that they believed that their conversations were private. Indeed, it was clear that the primary purpose of these statements was not to establish past facts for use in a criminal prosecution, but to arrange for the destruction of evidence and fabrication of false stories aimed at concealing the crime from law enforcement. (Cage, at pp. 986-987.) For all of these reasons, the statements made during these telephone conversations were nontestimonial and therefore were not subject to the Confrontation Clause. Accordingly, the trial court did not err in overruling Confrontation Clause objections to the admission of this evidence.

C. Gang Expert Testimony

Defendants challenge the admission of testimony by a gang expert regarding information in field identification or field interview cards.

1. Background

The prosecution filed a motion seeking admission of testimony by a gang expert that would include hearsay information recorded on field information cards. The prosecution asserted that such evidence was not testimonial within the meaning of Crawford. The prosecutor argued: Crawford is inapplicable to a gang experts testimony that is based on hearsay not introduced for the truth. The hearsay upon which the gang expert relies is used to form the basis of the experts opinionnothing more. In fact, a limiting instruction should be given that restricts the use of hearsay in conjunction with gang expert testimony. [A] limiting instruction should be given at the time this information is provided to the jury to ensure the statements relied upon by the gang expert are not introduced against the defendant[s] for the truth.

Santos filed an in limine motion asserting that the field identification cards themselves should be excluded under Evidence Code section 352 as unduly prejudicial because [they] tend[] to establish, by inference only, that Mr. Santos is a gang member. He complained that the field identification cards are hearsay, sometimes double hearsay, and have little basis in reliability. Their use, by an expert, to formulate opinion may be addressed in direct and cross-examination, however the cards themselves are inadmissible as hearsay documents without authentication or foundation. Santos cited Crawford in arguing that the admission of the cards themselves would violate his confrontation rights. Santoss attorney reiterated this argument at the in limine hearing. Argomaniz did not join in Santoss objection.

The prosecutor argued: [I]t is established that a gang expert can rely on hearsay information recorded in FI cards, and since the Court is going to give the jury a limiting instruction as to the gang experts opinion and the evidence that the gang expert relies on as going to the weight of his opinion and not offered for the truth of the matter, Crawford would be inapplicable.

The court agreed with the prosecutor, and it ruled that the jury will be admonished that the gang expert is the things that he is relying upon to form his opinion are not admitted for the truth, but just  . . . to form the basis of his opinion, and the jury is also admonished that if they find that those things werent reliable, that they could take that into consideration in deciding whether the gang expert was testifying credibly, so that issue is denied.

San Jose Police Detective Jose Rodriguez testified for the prosecution as an expert on Hispanic criminal street gangs. He explained that Surenos associate with the Mexican Mafia prison gang, the number 13 and the color blue. Nortenos associate with the Nuestra Familia prison gang, the number 14 and the color red. Surenos and Nortenos are enemies. Sureno gang members will often flash a three or yell trece before or during an attack. This is done to gain recognition that the crime is being committed for their gang. Varrio Sureno Town (VST) is a large San Jose Sureno gang that was established in the early 1980s. Clanton is a Sureno gang which claims territory adjacent to that of VST. VST and the Clanton gang work together. VSTs primary activities include attempted murder, homicide, robbery, assault with a deadly weapon, witness intimidation, drive-by shooting, residential burglary, home invasion, terrorist threat, selling drugs, car theft and possession of illegal weapons. The Clanton gangs primary activities are essentially the same as those of VST. Both Clanton and VST identify with the number 13 and the color blue.

The prosecutor asked Rodriguez if he had done any research regarding Santoss possible gang affiliation. Rodriguez said that he had, and the prosecutor asked him to start with looking at field interview cards. Rodriguez said there were six field interview cards regarding Santos, and he began with one dated November 8, 2003. When the prosecutor asked Rodriguez to describe [w]hat information was gleaned from reviewing that field information card[,] Santoss trial counsel objected on Sixth Amendment grounds, and the prosecutor referenced the in limine discussions. Santoss objection was overruled, and the trial court allowed him to enter a continuing objection to this testimony.

Rodriguez, who had not had any personal contact with Santos prior to the charged offenses, proceeded to testify about the information in the first field interview card, including the location where Santos had been stopped (within VSTs territory) and the fact that Santos had been with a fellow VST member at the time. Rodriguez testified that, on all six occasions, Santos had been stopped in gang areas. Rodriguez testified about a second field interview card which described another stop on November 28, 2003. On that occasion, Santos, who was wearing all blue clothing, was with two Sureno gang members in a vehicle. A third card described a contact with Santos on December 13, 2003. Santos, who was again wearing all blue clothing and was again accompanied by a fellow gang member, denied being an active member of a gang.

A fourth card described a contact on January 9, 2004. Santos, who was again accompanied by the same fellow gang member, was carrying a cell phone with gang insignia on it, but he denied being a VST gang member. His companion identified Santos as a VST gang member. A fifth card concerned a contact on April 30, 2004. Santos had a Sureno gang tattoo on his wrist. The sixth card documented a stop on May 7, 2004. On that occasion, Santos identified himself as being affiliated with VST, although not an official gang member. Santos also said that he had previously been associated with the Clanton gang. Santos had tattoos on his chest, including the number 13 and V Sur Town.[14] After his arrest for the charged offenses, Santos told Rodriguez that he was a VST member. Based on all of the information in the field identification cards, Santoss current tattoos, and Santoss admission, Rodriguez testified that it was his opinion that Santos was an active member of VST. On cross-examination, Santoss trial counsel went through the information in the field identification cards with Rodriguez.

Rodriguez also testified about 16 field identification cards regarding Argomaniz from May 1999 to January 2004. On 13 of those 16 occasions, Argomaniz had admitted that he was a Clanton gang member. On all 16 occasions, Argomaniz was in a gang area. Argomanizs trial counsel did not interpose any objection to Rodriguezs testimony about the information in these field identification cards, and Rodriguez testified about a number of the stops described in the field identification cards. On July 21, 2000, Argomaniz was stopped by police, and he claimed to be a member of the Clanton gang and gave his nickname as Night Owl. On August 9, 2000, Argomaniz was stopped again, and again claimed to be a Clanton gang member. Photographs taken by the police of Argomaniz on these occasions showed him making gang signs. On October 2, 2002, and again on November 16, 2003, Argomaniz was stopped by police, and he asserted that he was a member of the Clanton gang. On both occasions, he had a Clanton tattoo on his forearm and the number 13 tattooed on his hand. On December 18, 2003, Argomaniz was stopped, and he told a police officer that he was a member of the Clanton gang. Argomaniz was with a fellow gang member and had tattoos of the number 13 on his hand and the word Clanton on his forearm. On January 3, 2004, Argomaniz was stopped by police again. This time, although he admitted that he had been associated with the Clanton gang for seven years, he claimed that he was no longer a member. He still had the Clanton and 13 tattoos, and he again gave his nickname as Night Owl. Another field interview card documented that Argomaniz had been stopped on January 12, 2004, and, although he was wearing blue, claimed that he had been jumped out as a Clanton gang member two months earlier. Current photographs of Argomanizs Clanton and 13 tattoos were introduced by the prosecutor.[15] Rodriguez testified that, in his opinion, Argomaniz was a Clanton gang member.[16]

Rodriguez also testified about crimes that had been committed by VST gang members and by Clanton gang members.[17] Rodriguez testified that it was his opinion that the charged offenses were committed for the benefit of the VST and Clanton gangs. The gangs would benefit from the message that VST and Clanton were able to commit a crime in Norteno territory against someone they suspected was a Norteno gang member. This would be a double insult to the Norteno gang.

The jury was instructed: During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. [] In addition, consider the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relies in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

The jury was also instructed: You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang related crimes and enhancements charged, or the defendant had a motive to commit the crimes charged. [] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by the expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. [] You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.

2. Analysis

Argomaniz, joined by Santos, argues that the trial court prejudicially erred in admitting evidence of the information in the field identification cards, and in failing to give a limiting instruction that restricted the jurys use of this information to its support for Rodriguezs expert opinion. They claim that the admission of this evidence violated their confrontation rights.

Assuming arguendo that they adequately preserved their objection below and that this information was testimonial, we are convinced that the unlimited admission of this evidence was not prejudicial error.[18]

The beyond-a-reasonable-doubt standard of Chapman requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, supra, 386 U.S. at p. 24, 87 S.Ct. 824.) To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. (Yates v. Evatt (1991) 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is whether the . . . verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.) (People v. Neal (2003) 31 Cal.4th 63, 86.)

Rodriguezs testimony about the information in the field identification cards amounted to evidence that Santos and Argomaniz (1) frequented gang areas, (2) associated with fellow gang members, (3) wore blue clothing, and (4) had gang tattoos. Rodriguez also testified that the field identification cards showed that Santos admitted an association with the VST and Clanton gangs, and Argomaniz admitted that he was a Clanton gang member. This challenged evidence was directed solely at establishing that Santos and Argomaniz were gang members.

The admission of the challenged evidence was unimportant in relation to everything else the jury considered on the issue of whether Santos and Argomaniz were gang members, and the jurys verdicts were surely unattributable to the admission of the challenged evidence. The properly admitted evidence that Santos and Argomaniz were gang members was beyond overwhelming. Rodriguez testified that Santos admitted to him that he was a VST member, and it was undisputed that, at the time of the offenses, Santos had V Sur Town and the number 13 tattooed on his chest. Photographs of Argomaniz making gang signs were admitted into evidence, and it was undisputed that, at the time of the offenses, Argomaniz had Clanton tattooed on his forearm and the number 13 tattooed on his hand. The offenses were preceded by Argomaniz making a Sureno gang sign and Santos yelling sur trece, a Sureno gang reference. Although Argomanizs trial counsel claimed that Argomaniz was not a gang member, his argument was based solely on the challenged evidence. Consequently, any errors in the admission of the information in the field identification cards and any inadequacies in the limiting instruction were not prejudicial.

D. Lesser Included Offenses

Santos and Argomaniz maintain that the trial court prejudicially erred in failing to instruct on attempted voluntary manslaughter, as a lesser included offense of attempted murder, and on two lesser offenses of shooting at an inhabited dwelling.

[S]ua sponte instruction [is required] on any and all lesser included offenses, or theories thereof, which are supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 160 (Breverman).) [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. (Breverman at p. 162, bold and second italics added.) [I]f the evidence which supports a [lesser included offense] is minimal and insubstantial, the trial court need not instruct on that [offense]. (People v. Jackson (1980) 28 Cal.3d 264, 306.)

1. Attempted Voluntary Manslaughter

[T]he factor which distinguishes the heat of passion form of [attempted] voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez (2005) 37 Cal.4th 547, 583, internal quotation marks omitted.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] Heat of passion arises when at the time of the [attempted] killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. (Id. at pp. 583-584, internal quotation marks omitted.) The provocation must be adequate to arouse homicidal rage or passion in an ordinarily reasonable person. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556, internal quotation marks omitted.) [N]o man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate . . . . (People v. Logan (1917) 175 Cal. 45, 49, cited with approval in People v. Berry (1976) 18 Cal.3d 509, 515.)

In this case, the allegedly provocative conduct by David was his hand gesture. The record contains evidence that could have supported a finding that defendants reasonably believed Davids hand gesture to be a Norteno gang sign. The question is whether there was substantial evidence that an ordinarily reasonable person driving or riding by a residence in an SUV would become homicidally enraged by the observation of an unarmed man in a driveway making a gang sign with his hand. It is readily apparent that an ordinarily reasonable person would not become passionately aroused by such a trivial observation. David clearly posed no threat to the occupants of the SUV, and no reasonable person would have been more than slightly irritated by his hand gesture. While a Sureno gang member might have perceived the hand gesture as some sort of challenge, the applicable standard is not based on an ordinary gang member. Gang members may be unusually prone to have extremely violent passions, but the requisite provocation must one that would provoke an ordinary person of average disposition. Ordinary reasonable people do not become homicidally enraged in response to simple hand gestures of any nature. Since there was no substantial evidence of provocation, attempted voluntary manslaughter instructions were not required.

Argomaniz attempts to distinguish himself from Santos on the ground that his conduct, making Sureno gang signs, turning the SUV around, parking the SUV in front of Rosies home, and driving away after the shooting is not sufficient to support a finding that he intended to facilitate Santos in murdering or attempting to murder David. Instructions on a lesser included offense are not required simply because a jury could have concluded that a defendant did not commit the greater offense; the evidence must support a finding that the defendant committed only the lesser included offense addressed by the instructions. If the jury had concluded that Argomanizs conduct was not intended to facilitate a homicidal assault on David, it not only could not have convicted Argomaniz of attempted murder but also could not have convicted him of attempted voluntary manslaughter. The only way that the jury could have convicted Argomaniz of attempted voluntary manslaugher is if the jury could have concluded that Argomanizs or Santoss state of mind was provoked by Davids conduct. As we have already discussed, there simply was not substantial evidence that Davids hand gesture, even if reasonably believed by Santos and Argomaniz to be a Norteno gang sign, was sufficiently provocative that it would have caused an ordinary person of average disposition to become homicidally enraged. The trial court did not err in failing to give attempted voluntary manslaughter instructions.

2. Lesser Offenses of Shooting At An Inhabited Dwelling

Defendants contend that the trial court prejudicially erred in failing to instruct on two lesser offenses of the charged Penal Code section 246 offense.

Penal Code section 246.3 provides: Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (Pen. Code, 246.3, subd. (a).) San Jose Municipal Code section 10.32.010 provides: No person shall fire or discharge, or cause to be fired or discharged within the limits of the city any cannon, anvil, gun, pistol or other firearm, except as hereinafter provided.

A criminal defendant is entitled to an instruction on a lesser included offense only if there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense but not the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871, citations and internal quotation marks omitted.) Assuming for the sake of argument that both of these lesser offenses are lesser included offenses of the charged Penal Code section 246 offense, instructions were not required on these lesser offenses because there was no evidence that could have absolved either defendant of guilt of the greater offense but not also of the lesser offenses.

A Penal Code section 246 offense has three elements: (1) a discharge of a firearm, (2) that is willful and malicious, and (3) is at an inhabited dwelling house. (Pen. Code, 246.) This offense is a general intent crime that does not require proof that the defendant intended to hit the building, but only proof that the building was in the field of fire. (Jischke, supra, 51 Cal.App.4th 552, 556; Chavira, supra, 3 Cal.App.3d 988, 993; Overman, supra, 126 Cal.App.4th 1344, 1356-1358.) A Penal Code section 246.3 offense has three elements: (1) a discharge of a firearm, (2) that is willful and grossly negligent, and (3) could result in injury or death to a person. The San Jose Municipal Code offense has two elements: (1) a discharge of a firearm that (2) occurs within the San Jose city limits. All three offenses share the common element of a discharge of a firearm.

In order for defendants to be entitled to instructions on the lesser offenses, there had to be evidence that could have absolved them of the greater offense but not of the lesser offenses. No evidence was adduced at trial that Santoss firing of the gun was anything other than willful and malicious. Nor was there any evidence that Santos willfully and maliciously fired the gun, but did not do so in the direction of an inhabited dwelling. The evidence conclusively established that the gun was fired in the direction of Rosies home; there was no evidence to the contrary. Accordingly, there was no evidence that could have absolved defendants of the greater offense but not of the lesser offenses. Instructions on the lesser offenses were not required.

E. Ineffective Assistance of Counsel

Defendants contend that their trial counsel were prejudicially deficient in failing to request instructions relating provocation to the premeditation allegation. They concede that such instructions are not required sua sponte, but they insist that their trial counsel should have requested such instructions and that they were prejudiced by the absence of such instructions.

When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsels performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Strickland, at p. 687.) The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome. (Strickland, at p. 694.) The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, at p. 694.)

[T]he existence of provocation which is not adequate to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, internal quotation marks omitted.) Unlike the objective standard that applies to the provocation necessary to reduce attempted murder to attempted manslaughter, [t]he test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree [premeditated] murder to second degree [unpremeditated] murder, on the other hand, is subjective. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) Because this subjective standard asks whether a defendant was actually provoked, rather than whether an ordinarily reasonable person would have been provoked, we cannot agree with the Attorney General that the absence of sufficient evidence to support attempted voluntary manslaughter instructions means that there was also insufficient evidence to support a pinpoint instruction relating provocation to premeditation. Here, there was evidence that could have supported a conclusion that defendants decision to fire shots at David was motivated by Davids hand gesture, even though a reasonable person would not have responded in such a fashion.

Nevertheless, the failures of defendants trial counsel to request pinpoint instructions were not prejudicial. There is no reasonable probability that the jury would have entertained a reasonable doubt about premeditation if only it had been instructed that it could consider evidence of provocation in deciding whether the attempted murder was premeditated. Davids hand gesture occurred when the SUV passed by initially. The SUV then made a U-turn, drove back to Rosies house and parked in front. Santos pulled out a gun, overcame problems with firing it, and fired multiple times at David. Even if the jury had been told that it could consider provocation with respect to premeditation, it is highly improbable that a reasonable juror would have entertained a reasonable doubt about whether defendants actually premeditated simply because of Davids allegedly provocative hand gesture. The deliberate and calculated conduct by both Argomaniz, in driving the SUV, and Santos, in preparing to fire and firing the gun, conclusively demonstrated not that they were acting rashly in response to Davids hand gesture, but that they were acting with deliberation and premeditation in their attempt to kill him. Defendants were not prejudiced by the absence of pinpoint instructions.

IV. Disposition

The judgments are affirmed.

_______________________________

Mihara, Acting P.J.

WE CONCUR:

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McAdams, J.

_____________________________

Duffy, J.

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Analysis and review provided by Carlsbad Property line attorney.

[1] Defendant Orbin Santos Leonel goes by the surname Santos, and he was referred to as Santos in the trial court. Therefore, we too will refer to him as Santos.

[2] Gang members will often stare at, or mad dog, a person to see what kind of response the stare will elicit. A rival gang member will respond by staring back. A return stare will be viewed as a challenge.

[3] Argomaniz had a full head of hair and was wearing a Raiders football jersey. When the SUV was stopped by police, a Raiders football jersey was found on the floor on the drivers side.

[4] Rosie has poor eyesight.

[5] After the preliminary examination, at which Moran testified for the prosecution, a fellow gang member named Wicked called Moran a fucking rat and beat him up.

[6] The prosecutor pursued two aiding and abetting theories with regard to Argomanizs liability. He asserted that Argomaniz had either aided and abetted the crimes themselves or had committed or aided and abetted permitting another to discharge a firearm from a vehicle (Pen. Code, 12034, subd. (b)) or assault with a deadly weapon (Pen. Code,  245, subd. (a)), and the charged crimes were natural and probable consequences of these offenses.

[7] They also claim that Santos committed only one act, and that act was attempted murder. This is not true. Santos fired numerous shots, and each shot was a separate act. A rational jury could have found that some of the shots were directed at the house while others were directed at David.

[8]People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton) concern the admission of a codefendants statements at a joint trial.

[9]Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

[10] He does not renew his hearsay objection.

[11] At the in limine hearing, after the prosecutor argued for admission of the recordings against both defendants, Argomanizs attorney mentioned that he had a preliminary concern about the recordings. My only concern at this point are the statements attributed to Mr. Santos, the jail recordings, and I have to admit at this point I have not gone through the Spanish language versions to look for any possible Aranda-Bruton violations. [] From what I have seen, I have not found any, but I dont believe that Greenberger necessarily covers all of these cases, all these particular instances, so that if Mr. Santos is making some incriminatory statement regarding Mr. Argomaniz, I would ask that we consider that at that time and move to sanitize that statement or exclude that statement or in the alternative, sever the case. [] But I should say that at this point, I have not seen anything like that. Argomanizs trial counsel asserted that statements by Santos implicating [Argomaniz] as being a principal in the offense and putting him there at the scene would violate Aranda-Bruton, and [t]hats the objectionable part of the Aranda-Bruton argument that I would be making if it comes to that. And thats something we would have to look at in the context of a particular statement.

Argomanizs trial counsel also suggested that the Court give a limiting instruction as to Mr. Santos[s] recordings; that they be used only against Mr. Santos and not against Mr. Argomaniz with respect to the statements that Santos had made regarding Santoss other misconduct. The prosecutor agreed that Santoss statements about his other misconduct were only being admitted against Santos.

During trial, after Santoss trial counsel noted that he would be renewing his objection to the admission of Argomanizs telephone conversations, Argomanizs trial counsel said I might, just for the record, want to refer to one or two of those [statements] that I think might be a Bruton problem. The only problem statements that Argomanizs trial counsel identified were certain statements during Santoss conversation with Lori about Chango. Argomanizs trial counsel was concerned that these statements might be construed to implicate Argomaniz in the Chango incident. The prosecutor and Argomanizs trial counsel agreed to a stipulation that these statements did not implicate Argomaniz in the Chango incident. Argomanizs trial counsel did not raise any other objections to admission of the recordings.

Argomanizs trial counsel does not appear to have ever made a specific objection to any specific statement on the recordings that was actually admitted into evidence against Argomaniz.

[12] The only statements that Santos made on the recordings that potentially implicated Argomaniz were Santoss statements to Lori. Santos said that Argomaniz knows that hes not going to lose that because the gun has my fingerprints. I dont know if Ni