Filed 7/27/17 P. v. Martinez CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS MARTINEZ,

Defendant and Appellant.
C077853

(Super. Ct. No. 13F06173)



A jury found defendant Luis Martinez guilty of six felonies arising from three separate gang-related attacks, and found true various firearm and gang enhancements. The trial court sentenced defendant to 29 years plus 32 years to life in state prison.
On appeal, defendant contends: (1) there was insufficient evidence to support the gang enhancements, and (2) the trial court violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the California Constitution by refusing to instruct the jury on self-defense. We will reverse the gang enhancements and remand for resentencing. In all other respects, the judgment is affirmed.
I. BACKGROUND
A. Shooting of S. Cardenas (Counts One Through Three)
S. Cardenas, a member of the Franklin Norteños street gang, met defendant in June or July 2013 and the two became close friends. Cardenas knew defendant associated with the “Gardons” or “Varrio Gardon Sacra Norteños” (VGS), a subset of the Norteño gang. In July 2013, Cardenas purchased two semiautomatic handguns in Nevada and gave one to defendant.
In August 2013, defendant was a passenger in Cardenas’ Chevy Tahoe when defendant saw a Range Rover. He became angry and excited, pulled out a pistol, and told Cardenas to follow the car. Cardenas complied and, when he drew closer, defendant fired, hitting the car.
In early September 2013, Detective Lizardo Guzman with the Sacramento County Sheriff’s Department observed defendant and Cardenas together in an apartment on Augusta Way. Law enforcement officers obtained a search warrant and conducted a raid on the apartment. After the search, defendant accused Cardenas of being a snitch and telling police about what happened with the Range Rover, prompting the raid on the apartment. Cardenas denied having talked to the police.
Shortly thereafter, Cardenas was driving his Chevy Tahoe. Defendant and two other men, Ignacio Puga and “Farrel,” got into Cardenas’ sport utility vehicle. Cardenas testified at trial that he thought the two men were associated with a gang. When asked to specify, he explained, “Valley High Norteños and Bay Area. I’m not too sure of the other affiliation.” When asked if it was a Norteño affiliation, he replied, “one of them.” Defendant asked Cardenas why he snitched. Cardenas said he had not snitched. Defendant pulled out his gun, pointed it at Cardenas, and asked Cardenas again why he snitched. Puga, also known as “Chito,” pistol-whipped Cardenas. The men handcuffed Cardenas to the steering wheel, beat him, and took everything of value from him. Then defendant ordered Cardenas to drive to the Meadowview area and rob someone. When defendant let Cardenas out of the sport utility vehicle, Cardenas fled.
Several days later, Cardenas dropped a female friend off at a house on Vanita Way and was getting ready to leave when he saw defendant, wearing a hooded sweatshirt and glasses, approach the driver’s side of his sport utility vehicle. Defendant (who Cardenas referred to at trial as “Panzon”) pointed what Cardenas thought was a “Glock .40” at him and fired numerous times. Cardenas could feel bullets flying by him. One flew past his head and into the headrest. Another bullet ”traveled through [his] back and out [his]shoulder into the seat.” Cardenas drove off and made it to the hospital. When Detective Guzman questioned Cardenas, he told Guzman that Panzon was the shooter.
Cardenas initially testified that, when defendant was shooting at him, he leaned over the center console to retrieve his own gun from underneath the passenger seat but “never had a chance to grab it” and never shot at defendant. He admitted having told the District Attorney’s investigator two weeks prior that he had indeed shot at defendant but only after defendant shot at him, but claimed he was “confused” when he told those things to the investigator.
When recalled to testify several days later, Cardenas admitted having lied about not returning fire because he had not yet been provided with immunity and did not want to incriminate himself for being a felon in possession of a firearm. However, having since been provided with immunity, he testified that after defendant shot him, he retrieved his gun from between the console and the passenger seat and, as he drove off, fired two shots at defendant because he feared defendant was going to kill him. Cardenas testified he turned to his left and fired with his right hand as his right arm was extended across his body and out the window. At the same time, he was turning the steering wheel to the right to turn the corner. Cardenas believed his shot hit defendant because he saw defendant stumble backwards. However, defendant continued shooting at Cardenas, hitting his sport utility vehicle five or six times.
Officers inspecting the scene following the shooting found no shell casings. A witness testified he did not see the shooting, but he heard the shots and it sounded to him like they were fired from a revolver which does not eject shell casings when fired like a semiautomatic handgun does.
Detective Guzman testified that he knew defendant, also known as “Panzon,” to be a member of the Norteño gang. Guzman testified that “[i]t is important for [gang members] to maintain control of their neighborhoods. . . . [T]hat’s why they identify themselves with certain sets or subsets.”
The prosecution’s other gang expert, Detective Shannon Richardson, testified about the background and history of the Norteños gang, stating it originated in prisons in the 1960s as a result of problems between inmates from Southern California, who associated themselves with the Mexican Mafia or La Eme prison gang, and inmates from Northern California, who “formed what they called the Nuestra Familia [prison gang], which means our family in Spanish.” Outside of prison, those associated with Nuestra Familia were Norteños (meaning “Northerners” in Spanish), and those associated with Mexican Mafia or La Eme were Sureños (meaning “Southerners” in Spanish). Richardson also testified about gang hierarchy.
Detective Richardson testified that gangs and their subsets share a common name, and the subsets “are just basically smaller clicks [sic] of individuals that are all under the Norteño umbrella, but they click [sic] together because they live in a certain area or their family has come from a certain subset that was—that originated in a certain neighborhood.” Richardson testified that the culture of the VGS subset is “no different than the Norteño culture. They fall under and are governed by the Norteños, which fall under the Nuestra Familia, which is [the] prison gang that supervise[s]. They follow that same constitution that this [sic] Norteños fall under.” In terms of “clothes, hair, tattoos, respect, rivalries,” subsets such as VGS are “basically on the same level as Norteños in general.” However, the VGS subset is unique because they will often wear the color green for the following reason: The VGS “originated as a Crip set years and years ago. And they were wearing blue, but a lot of them are Hispanic from Northern California. And as they went into jails and prisons, they were forced to collaborate with the Northerners. [¶] And the Northerners and Norteños in that area all wore red, and they classified themselves as Northerners and group themselves under the Norteño umbrella, but you will see a lot of [VGS] wearing green. That’s one of the reason[s] they wear green is to have some connection or nexus to their history of where they originated.” Notwithstanding that, Richardson agreed that Norteños and subsets “such as” VGS share the same “philosophy of a gang lifestyle.” Richardson also agreed that Norteños, La Nuestra Familia, and subsets such as VGS “essentially share the same culture in terms of violence, respect and the code of conduct that flows from that.”
Detective Richardson testified that Norteños in Sacramento engage in primary activities such as assault with a deadly weapon, assault with a gun, assault likely to produce great bodily injury, robbery, burglary, homicide, possession of weapons, shooting into inhabited dwellings and shooting into vehicles. With regard to predicate crimes, Detective Richardson testified regarding two cases. The first case involved Jesus Zavala, a Norteño gang member who was convicted of three counts of robbery and a gang enhancement after he robbed people on a bike trail at gunpoint “after asking if they were Sureños.” The second case involved Keeyon Neal, a member of the Valley Hi Norteños in Sacramento, who was convicted of assault with a firearm and a gang enhancement after he shot at multiple victims sitting in front of a house.
Detective Richardson opined that defendant was a Norteño gang member, belonging to the VGS subset. Richardson based that opinion on defendant’s tattoos, which included a “G” on the right side of his neck signifying his affiliation with the Gardones subset; the words “Game Official” on the left side of his neck signifying “he was legit, meaning a legit gang member that has put work in and willing to put in work for his gang,” which could include selling drugs to make money for the gang, carrying weapons to act and react to violent encounters, fighting, protecting turf, using guns to kill people, and enforcing the Norteño gang code; a “916” on his left shin/ankle signifying his affiliation with Northern California and specifically the Sacramento area; the Northern star signifying his affiliation and loyalty to Northern California; “29” on his right shoulder and “9” on his left shoulder signifying the 29th Street Gardones who originated in the area of 29th Street in Sacramento, the “heart of Gardone territory;” and a “1” on his left tricep and a “4” on his right tricep signifying the fourteenth letter of the alphabet, “N,” for Norteño.
Detective Richardson’s opinion was also based on defendant’s gang history, which included a December 2007 pedestrian stop during which defendant told officers he had been a Gardone for the last six years and that his street name was “Panzon,” meaning “fat” in Spanish. In a second case in December 2007, defendant was stopped in a vehicle with another validated Gardone member who was wearing gang colors. Defendant, bearing gang tattoos, told officers he was an active gang member and his name was “Panzon.” In a third case in November 2008, officers searching defendant’s bedroom noticed the mirror with gang graffiti on it, including the words “Sacra” and “Gardones” and the letter “G.” In a December 2008 case, defendant admitted to officers “he was Varrio Gardone Norteño and that he had little homies that ran drugs for him.” In a September 2009 case, defendant was found to be in possession of brass knuckles. Richardson opined that gang members are “always expected to act and have the ability to act in a violent encounter” and “are trained to fight with their hands” as well as with “various weapons,” such as brass knuckles. In a July 2010 case, officers searched a room in which defendant was sleeping. When the officer tried to detain defendant, defendant reached under the covers. A .22 caliber revolver with the serial number shaved off was found approximately two feet away. In a February 2011 case, an officer contacted defendant, who was wearing a red and black hat and had a red rag hanging from his back pocket, both signifying Norteño gang affiliation, allegiance, and membership. Defendant told the officer he was a Gardone and claimed to be “his entire life.” In a July 2012 case, officers searched the home of defendant’s then-girlfriend and discovered a bulletproof vest. In Richardson’s opinion, gang members carry guns and own bulletproof vests because of concerns of being shot by other gang members carrying guns. In another July 2012 case, officers found a revolver in a sealed bag hidden in the tank of a toilet in an apartment that “defendant was in.”
Detective Richardson’s opinion was also based on defendant’s February 23, 2014, jailhouse assault on another inmate. The jail report indicated the inmate was an “admitted 18th Street Sureño” and noted that, following the assault, defendant said, “ ‘That is why you don’t put a Southerner in the same pod with a Northerner.’ ” Richardson opined that, in a custodial situation such as that where deputies are watching and surveillance cameras are present, a gang member might commit such an assault to “enhance his reputation in the gang and to show that he is willing to stand and show his allegiance to the gang,” and to send a message to rival gang members that he is “active” and will respond and fight if necessary.
Richardson agreed that, “respect is the greatest currency for a gang member,” and testified that “[s]nitches are the very bottom of the barrel.” When a gang member is labeled a snitch, that person is in danger of retaliation from other members of the gang. If a gang member testifies in court against another gang member, they are considered a snitch and a “marked man,” meaning they will “live in fear for the rest of their [life] that there is going to be consequences for them standing up against the gang.” If a gang member thinks someone is a snitch but does nothing about it, that gang member will himself lose the respect of the gang.
Detective Richardson testified that “[g]uns are status symbols for gang members” used as offensive and defensive weapons. Gang members carry guns, sell them, and use them to assist other gang members to gain respect and show loyalty to the gang. They also flash guns to intimidate witnesses and victims, and want people in their neighborhoods to know they carry guns and are willing to use them.
B. The Shooting of R. Rosa (Counts Four and Five)
R. Rosa and defendant had known each other since they were young children. Rosa knew defendant was involved with the “Garden block, the 29th Street gang,” a subset of the Norteño gang.
On July 30, 2013, Rosa lived in an apartment in Sacramento just around the corner from the 29th Street gang’s territory. That evening, Rosa was walking around near the basketball courts when defendant approached him and accused him of taking defendant’s phone. Rosa said, “I have no idea what you are talking about.” Defendant lifted up his shirt revealing a black semi-automatic handgun in his waistband and told Rosa to come with him. Rosa refused and started to walk away from defendant. Defendant followed Rosa and reached for his gun. Rosa took off running and then heard a “pop.” He looked at his arm and saw that the bullet had grazed his back and hit his arm, which was “gushing” blood. Rosa continued running through the park and finally sat down in front of some apartments, still bleeding, and waited until some people, who had heard the shot, arrived to help him.
Rosa was taken to the hospital where he underwent surgery to treat the gunshot wound. When the police spoke to Rosa outside the apartment complex, he did not immediately identify defendant as the shooter because he was “terrified” of being labeled “a snitch” and killed. However, in a subsequent interview with a detective, he identified defendant as the shooter and gave a statement.


C. The Assault of J. Forsythe (Count Six)
On February 23, 2014, J. Forsythe was an inmate at the Sacramento County Jail. He belonged to the 18th Street gang, a subset of the Sureño gang, and bears gang-related tattoos on his hand and back. Forsythe’s right leg is paralyzed and he uses crutches to help him walk. At the time of the assault, he was waiting in line at the jail’s medical unit for medication, which is administered by jail personnel. While in line, he was suddenly “sucker punched” in the back and fell to the ground, where he was kicked and punched several more times.
Sheriff’s Deputy Noah Luger was working on the medical floor of the jail and witnessed the attack on Forsythe. Luger identified defendant as the attacker. Luger saw defendant strike Forsythe approximately 13 times in the face and body, and kick him approximately three times. The attack was also captured on jail surveillance video, which was played for the jury at trial.
After the attack, Sheriff’s Deputy Tim Mullin escorted defendant to another part of the jail. Defendant blurted out, “ ‘This is what happens when you put a Southerner in the same pod as a Northerner.’ ”
Sheriff’s Deputy Brian Ables testified that defendant had a number of gang tattoos, including the words “Game Official” on his neck; a single dot on his right elbow and four dots on his left elbow; a Northern Star, representing his ties to his Northern roots with the Norteño gang; four dashes on his left wrist, representing the number “4,” short for the number 14. Ables testified defendant told him the words “Game Official” meant defendant “ha[d] been tested within the Norteño gang and proven, that he will follow through with any orders and never back down on anything that he is ordered to do.” The dots on defendant’s elbow signified the number 14 which, according to Ables, represents the letter “N,” the fourteenth letter of the alphabet, “which represents Norteños.” The four dashes on defendant’s right wrist represent the number “4” which also represents the letter “N,” the fourteenth letter of the alphabet, which “stands for Norteño.” Defendant was also tattooed with the number “916,” the area code for Sacramento, signifying that defendant “claims ‘916’ area as his turf as a Norteño.” Defendant had an unfinished tattoo, “S-a-c” with a space and then an “a,” that was supposed to say “Sacra” which is short for “Sacramento,” meaning defendant claims Sacramento as his “home turf as a Norteño.”
Deputy Ables also testified that, approximately one month after giving his preliminary hearing testimony, he was working at the main jail when, during pill call, defendant recognized him and said, “ ‘Fuck you. You’re a fucking bitch for getting on the stand.’ ” When Ables responded, “ ‘Hey, it’s business,’ ” defendant replied, “ ‘No, seriously, Ables, fuck you.’ ” The following day, Ables was talking to another inmate when a Norteño inmate housed in an adjacent cell said, “ ‘Fuck you, Ables, you’re a bitch because you get on the stand.’ ”
D. Procedural History
Defendant was charged by second amended complaint, deemed the information, with attempted premeditated murder of Cardenas (Pen. Code §§ 664, subd. (a), 187, subd. (a)—count one), discharging a firearm at an occupied motor vehicle (§ 246—count two), two counts of felon in possession of a firearm (§ 29800, subd. (a)(1)—counts three and five), assault with a firearm against Rosa (§ 245, subd. (a)(2)—count four), and assault with force likely to produce great bodily injury against Forsythe (§ 245, subd. (a)(4)—count six). The information alleged firearm enhancements as to counts one, two, and four (§§ 12022.53, subds. (b)-(d), 12022.5, subds. (a) & (d)); gang enhancements as to counts one, two, three, five, and six (§ 186.22, subd. (b)(1)); and an infliction of great bodily harm enhancement as to count four (§ 12022.7, subd. (a)).
Following a trial, the jury found defendant guilty of all six counts and found true all of the enhancements except the gang enhancement as to count five.
The trial court sentenced defendant to an aggregate determinate term of 29 years, plus an indeterminate term of 32 years to life in state prison, comprised as follows: seven years to life on count one, plus 25 years to life for the firearm enhancement (§ 12022.53), and 10 years for the gang enhancement; a consecutive four-year term on count four, plus 10 years for the firearm enhancement (§ 12022.5), and three years for the great bodily injury enhancement; a consecutive one-year term for count six, plus one year for the gang enhancement. The court imposed but stayed sentences on counts two, three, and five pursuant to section 654.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Insufficient Evidence to Support Gang Enhancement
Defendant contends there was insufficient evidence to support the imposition of a gang enhancement under section 186.22, also known as the Street Terrorism Enforcement and Prevention Act (the STEP Act). He claims the prosecution failed to establish the existence of a criminal street gang by proving two predicate offenses committed by the gang for whose benefit he committed the crimes, as required by section 186.22 and the holding in People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
The People argue the requirements of Prunty are satisfied because there was sufficient evidence connecting defendant’s subset (VGS) and the Valley High Norteños to the larger Norteño organization.
On this record, we agree with defendant. As we will explain, there was insufficient evidence of an associational or organizational connection uniting VGS (the Norteño subset of which defendant was a member) with the larger Norteño gang (the gang defendant allegedly sought to benefit) as a single criminal street gang for purposes of section 186.22.
1. Standard of Review
In reviewing a challenge to the sufficiency of evidence, we must “ ‘ “review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.” (People v. Hill, supra, at p. 849.)
“ ‘The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ ” (People v. Romero (2006) 140 Cal.App.4th 15, 18.) “ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371.)
2. The STEP Act and Prunty
Section 186.22 imposes an additional term of imprisonment on “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) For purposes of this sentence enhancement, a “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Id., subd. (f).) A “pattern of criminal gang activity” is “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain] offenses [identified in the statute], provided at least one of these offenses occurred after the effective date of [the law] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (Id., subd. (e).)
In Prunty, our state’s Supreme Court “decide[d] what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.” (Prunty, supra, 62 Cal.4th at p. 67.) The court held “that the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang.” (Ibid.) And “where the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.” (Id. at p. 71.)
The Prunty court further held the STEP Act “requires that the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an ‘organization, association, or group,’ and the group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate offense requirements of section 186.22[, subdivision] (f), must be one and the same.” (Prunty, supra, 62 Cal.4th at pp. 75-76.) The prosecution does not need to demonstrate the exact scope of the criminal street gang, but the jury must be able to infer that the gang the defendant sought to benefit included the group that committed the primary activities and predicate offenses under the STEP Act. (Id. at p. 76.) “And where, as in this case, the alleged perpetrators of the predicate crimes under section 186.22[, subdivision] (f) are members of particular subsets, the behavior of those subsets’ members must connect them to the gang the defendant sought to benefit.” (Id. at p. 80.)
In Prunty, the evidence showed that Prunty identified as Norteño generally and that he claimed membership in a Detroit Boulevard subset. (Prunty, supra, 62 Cal.4th at pp. 67, 68.) The prosecution’s gang expert, Detective John Sample, “testified about the Sacramento-area Norteño gang’s general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets.” (Id. at p. 67.) Specifically, “Sample testified that the Norteños are ‘a Hispanic street gang active in Sacramento and throughout California’ with about 1,500 local members. Sample explained that Sacramento-area Norteños are not associated with any particular ‘turf’ but are instead ‘all over Sacramento’ with ‘a lot of subsets based on different neighborhoods.’ Sample described the ‘primary activities’ of Sacramento-area Norteños as unlawful homicide, attempted murder, assault, firearms offenses, and weapons violations. Sample also testified that Norteños share common names, signs, and symbols, including names derived from ‘the north, Norteños, [and] northerner,’ the letter N, the number 14, and the color red. The ‘Norteños’ enemy,’ moreover, is the Sureño street gang, whose members identify with the color blue, the letters S and M, and the number 13. Both the Norteños and the Sureños ‘originated out of the California prison systems’ in the 1960s and 1970s. The Sureños are associated with the Mexican Mafia prison gang, while the Norteños have a ‘street gang association’ with the Nuestra Familia, or NF, prison gang. Finally, Sample described various other aspects of Norteño and Sureño gang culture generally, including the appearance of gang graffiti and gang signs as well as each gang’s use of common derogatory statements about its rivals.” (Id. at p. 69)
The court held that “where the prosecution’s evidence fell short is with respect to the predicate offenses.” (Prunty, supra, 62 Cal.4th at p. 82.) The prosecution introduced evidence of two predicate offenses involving three alleged Sacramento Norteño subsets—Varrio Gardenland Norteños, Del Paso Heights Norteños, and Varrio Centro Norteños. (Ibid.) Sample characterized these groups as Norteños, but “he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang.” (Ibid.) In particular, he “never addressed the Norteño gang’s relationship to any of the subsets at issue. . . . Instead, Sample simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses.” (Id. at p. 83.) While he testified that Norteño street gangs are associated with the Nuestra Familia prison gang, he did not testify about any relationship between any Nuestra Familia shot callers and any of the Sacramento-area Norteño subsets. (Ibid.) This testimony was insufficient “to permit the jury to infer that the organization, association, or group at issue included the subsets that committed the predicate offenses.” (Id. at p. 81.)
3. Analysis
Defendant argues the prosecution failed to show a sufficient connection between the gangs at issue in the predicate offenses (Valley Hi Norteños and the Norteño gang), or defendant’s subset (VGS) with either the Norteños or the Valley Hi Norteños.
The People assert that Detective Richardson testified that all of the Sacramento-area Norteño subsets fall “under the Norteño umbrella,” adhere to the same customs and culture of violence and intimidation, and loosely organize into neighborhood groups or cliques in order to hang out with other nearby Norteños. The People argue that testimony, in conjunction with Cardenas’ testimony that he was assaulted by members of two Norteño subsets (a VGS member and a Valley Hi Norteño member) working together to retaliate against him and further the goals of the Norteño gang, demonstrates “an associational or organizational connection that unites members of a putative criminal street gang.” (Prunty, supra, 62 Cal.4th at p. 67.) We disagree.
The People overstate Detective Richardson’s testimony. She made no specific representations regarding all Sacramento subsets. She testified that the VGS subset “fall[s] under and are governed by the Norteños,” and then agreed that Norteños, La Nuestra Familia, and subsets such as VGS “essentially share the same culture in terms of violence, respect and the code of conduct that flows from that.” (Italics added.) We cannot conclude that such general testimony is qualitatively different than the testimony about the Sacramento-area Norteños and the overarching Norteño gang’s general existence and origins in Prunty. (See Prunty, supra, 62 Cal.4th at p. 69.) Thus, Richardson’s testimony was not sufficient to connect VGS (let alone all unnamed subsets) to the Norteño organization. Additionally, while Cardenas’ testimony provides some evidence that members of two different Norteño subsets—defendant’s subset (VGS) and one of the subsets involved in the predicate offense (Valley Hi Norteños)—acted together once to retaliate against a victim they perceived to be a “snitch,” the evidence is insufficient to demonstrate an “associational or organizational connection uniting those subsets.” (Id. at p. 71.) It is not enough that a VGS member and a Valley Hi Norteño member share the same goal or viewpoint on an “isolated matter” such as this, or that the two subsets share a common enemy. (Id. at p. 75.) Moreover, the Act “requires that the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an ‘organization, association, or group,’ and the group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate offense requirements of section 186.22[, subdivision] (f), must be one and the same.” (Id. at pp. 75-76, 81-82.) Here, the evidence fails to demonstrate a connection between either subset and the larger, umbrella Norteño gang defendant is alleged to have sought to benefit.
Therefore, we asked the parties to provide supplemental briefing on (1) whether the evidence offered by the People was sufficient to allow the jury to conclude the VGS subset, in contrast to the Norteño umbrella organization, was the gang defendant sought to benefit; (2) whether the jury could consider evidence surrounding either the Cardenas crime (September 2013) or the Forsythe crime (February 2014) as a separate predicate offense under the holding in People v. Olguin (1994) 31 Cal.App.4th 1355, 1383 (Olguin); and (3) whether evidence that the Valley Hi and VGS gang members worked together during the Cardenas crime was sufficient to establish an “organizational or associational connection” between those two Norteño subsets as discussed by our Supreme Court in Prunty.
The first question is the critical, and dispositive, question. As defendant points out, he was expressly charged in the information with committing crimes for the benefit of the Norteño gang, not the VGS subset. Under these circumstances, it would have been insufficient for the jury to conclude the VGS subset was the gang defendant sought to benefit for purposes of section 186.22. This renders our additional questions moot because, as set forth above, there is insufficient evidence defendant committed the crimes for which he was convicted for the benefit of the umbrella Norteño criminal street gang within the meaning of section 186.22, subdivision (b), as the prosecution alleged at trial. We must therefore reverse the gang enhancements and remand the matter to the trial court for resentencing in light thereof.
B. Self-Defense Instruction Not Supported by the Evidence
Defendant contends the trial court’s refusal to instruct the jury on self-defense violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments and Article I of the California Constitution. The claim lacks merit.
1. Background
Defendant’s counsel requested that the jury be instructed on self-defense as to counts one and two. When the prosecution initially stated it did not object, the court agreed to give the instruction but stated, “I don’t think it is supported by the evidence.” The prosecution then objected to the giving of the instruction. However, the court stated it would give the instruction nonetheless.
The next day, the prosecution reiterated its objection to giving the self-defense instruction noting the evidence did not support it and stating: “There is also no testimony by the defendant that he was in any fear or would have believed that he was required to use deadly force to respond to Mr. Cardenas. The only evidence was that Mr. Cardenas fired after the defendant shot at him or was pulling out his gun.” This colloquy followed:
“[DEFENSE COUNSEL]: Your Honor, the state of the evidence is you would have to believe Mr. Cardenas and disbelief [sic] some of the physical evidence, including the entry and exit wound, including the fact that he’s putting the wrong gun in the hand of the defendant and including his story—his improbable story about how he leaned down and grabbed the gun and fired. All of those things are not true.
“The jury is certainly free to conclude that his statement that he did not shoot first is not true. In which case, whether or not he shot first is the only issue.
“If [defendant] is shooting first, he’s not contriving a self-defense, he’s just guilty, because he’s the one who shot first and there is not self-defense at all.
“I think if he had testified or someone had said [defendant] came up to him and started shoving him and pulled out a gun and said, I’m going about kill you [sic], and then claimed self-defense, that would be different. We just don’t have those facts here.
“So I’m asking not to muddy any of the waters, either they believe Mr. Cardenas shot first or cannot decide or they don’t.
“THE COURT: What—I guess the part where I’m stuck is what affirmative—what evidence do you have that [S.] Cardenas discharged his firearm first? What evidence is there?
“[DEFENSE COUNSEL]: We have the fact that he lied about not having a gun. And then when confronted with the fact of having a gun, he says he did not shoot first.
“But if you look at his story about when and how he actually shot, it’s inherently improbable. It had to happen some other way.
“If you look at the wound that came in, it had an entry above the right breast and an exit in the shoulder. He could not have been going around the corner and firing out to the side for a bullet to come in and out like that.
“The jury is certainly free to conclude, based on the wound and his testimony, that he indeed shot first and provoked a reaction of all of these shots coming the other way.
“Additionally, if he had shot first—I’m sorry, if he had shot the way he said he shot, he would have emptied the clip in fear of the other way. It sounds to me like he shot first and he saw the assailant go down from the window of his [sport utility vehicle]. And if they disbelieve him, then it’s self-defense.
“THE COURT: Isn’t—it strikes me that if—because there is no affirmative evidence. There simply is nothing. There is nobody to say I observed this and I—[S.] Cardenas fired first. That doesn’t exist.
“You don’t have a prior statement by [S.] Cardenas indicating that he fired first.
“We don’t have a witness that says that [S.] Cardenas fired first. We don’t have even somebody hearing shots that indicated a different type of weapon was being discharged initially, and then six shots were fired in response to it.
“And it seems to me—and I’m not saying it isn’t, maybe it is required to give the instruction. It seems to me, if all that is required is asking a witness, isn’t it true you fired first, then you would have to give self-defense in any case, because the answer ‘no’ is meaningless. It doesn’t matter if they say yes, I did, then you get the self-defense instruction.
“If they say no, the argument is—well, you don’t have to believe it. When he says, ‘no,’ it really means yes; and, therefore, you can conclude, even without any affirmative evidence that somebody else fired first, Mr. Cardenas fired first, you can disbelieve him, conclude that he did fire first, even though there is no evidence of it. That’s where I am struggling with it.
“Because the state of evidence right now is Mr. Cardenas, from the moment he was spoken to by the police, said initially, I didn’t have a gun, or I didn’t shoot. And it’s not really that. He just didn’t mention it is what the state of the evidence is. That’s his testimony. I didn’t bring it up, nobody asked me about it, so I didn’t volunteer the fact that I had a firearm. I’m a felon. I wasn’t supposed to have one.
“Ultimately, when he was confronted by law enforcement, I think it was just a couple of weeks ago is my recollection, maybe he mentioned it back before then, he said, no, I did have a gun and I shot it. And I shot back at your client, only after he shot at me. That’s the evidence. Came in and testified, and I don’t recall what he said, which was initially, I didn’t have a gun. But, ultimately, he comes back with immunity and said I did have a gun and I did shoot, but only after he shot at me.
“There is no evidence, nothing in the record, nowhere in[ ]the record is there any affirmative evidence that indicates [S.] Cardenas fired first. Nowhere. It just doesn’t exist.
“And so I guess where I’m struggling, and as I said look at the self-defense or defense of others, [CALCRIM] 3470 instruction, where in the world, other than speculation, can the jury make findings on 1, 2, and/or 3, based upon testimony that they heard in this courtroom without speculating?
“[DEFENSE COUNSEL]: Let me add this for your consideration, initially, after he admitted he had a gun on his first round of testimony, he told the jury it was underneath the front driver’s seat.
“THE COURT: He did.
“[DEFENSE COUNSEL]: And I specifically asked him, that wouldn’t do you much good, and he said no. So now we all know where he says his gun is.
“On the second round after he’s had the weekend to think about it, now the gun is between the driver’s seat and the console, where it’s accessible and his story could make sense that he—even though he was shot, he knows he can’t have leaned over and gotten it from under the seat because he’s trying to drive away. So he’s telling us now that it was right there where he could reach it. He used his now shot, wounded arm to come up and fire backwards or to his left. And he not only fires, but he sees the person is hit as he’s driving away and seeing the children, all of these things. I think the jury can certainly conclude that that story didn’t happen.
“If that story didn’t happen, the only other explanation is that he saw the assailant, took a couple of shots at him, and took off, as he was being shot. Either conclusion is rational from his story.
“If he had not lied about where the gun was, it would be different. But why does he place the gun away from himself until it looks like he may have fired a shot? Then the gun becomes closer.
“THE COURT: People.
“[THE PROSECUTION]: Your Honor, there are a series of speculative inferences that are being made by the defense, that [S.] Cardenas lied about where he had the gun. And because he lied about where he had the gun; therefore, he lied about shooting first. The whole argument that this instruction should be omitted is based upon speculative inferences after speculative inference. There is simply no affirmative evidence for any of the elements listed in the self-defense instruction, and, as such, the review of the evidence shows that it should not be given to this jury.”
The court concluded there was no substantial evidence to support a self-defense instruction. The court did, however, confirm defendant’s right to testify regarding self-defense, as well as his right to argue Cardenas’ explanation of events lacked credibility. Defendant exercised his right not to testify, but defense counsel argued in closing argument that Cardenas lacked credibility and that he may in fact have fired first.
2. Law
“Requested instructions on a defense must be given if they are supported by substantial evidence, rather than ‘minimal and insubstantial’ evidence. (People v. Flannel (1979) 25 Cal.3d 668, 684.) Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction. If the evidence is substantial, the trial court is not permitted to determine the credibility of witnesses, which is a task for the jury. [Citations.]” (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ” (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
“ ‘To justify an act of self-defense . . . , the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics omitted.)
Instructions that omit an element of a charged offense violate a defendant’s federal and state constitutional rights to a jury trial. “By relieving the prosecutor of the burden of proving the elements of [assault] beyond a reasonable doubt and depriving defendant[] of a jury trial on [the element of self-defense], these errors contravene both the United States and California Constitutions. [Citations.] To the extent the error implicates federal constitutional rights, our inquiry is governed by the harmless error standard expressed in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].” (People v. Lewis (2006) 139 Cal.App.4th 874, 884; see Neder v. United States (1999) 527 U.S. 1, 4, 9-11, 17 [144 L.Ed. 2d 35]; People v. Aranda (2012) 55 Cal.4th 342, 367-368; People v. Mil (2012) 53 Cal.4th 400, 409.)
3. Analysis
Cardenas testified he had just dropped off a friend at a house on Vanita Way when he saw defendant approach his sport utility vehicle on foot. Defendant pointed what Cardenas identified as a Glock .40-caliber handgun at him and fired a number of times. One of the bullets hit Cardenas, traveling through his body and out his shoulder into the seat. He initially testified he leaned over the center console for the gun under the passenger seat, but was unable to grab it or fire at defendant because he was shot. Cardenas said he was confused when he told an investigator two weeks prior that he had indeed fired at defendant, but only after defendant shot at him.
However, several days later, Cardenas testified he had lied about not returning fire because he did not want to incriminate himself. Having been given immunity from prosecution, he testified that, after defendant shot him, he retrieved his gun from between the console and the front passenger seat and fired two shots at defendant while attempting to drive away. He testified he fired with his right hand extending across his body to the left, out the driver’s side window, as he attempted to steer the sport utility vehicle to the right. Defendant continued shooting at him, hitting his sport utility vehicle several more times.
Cardenas testified consistently that defendant fired the first shots, one of which hit Cardenas in the right shoulder, and that Cardenas returned fire only after defendant fired at him. No witness testified to the contrary, and there was no evidence offered to contradict Cardenas’ testimony or support defendant’s theory that Cardenas fired first and defendant fired second in self-defense. There appears to be no evidence, let alone substantial evidence, that would require the giving of a self-defense instruction.
Defendant argues sufficient evidence supported the giving of an instruction on perfect (or reasonable) self-defense (CALCRIM No. 3470). He argues he knew Cardenas was a convicted felon who associated with gangs and “armed himself with a firearm,” that there was “bad blood” and an “ongoing gang-related feud” between the two, and Cardenas was out to get him, as evidenced by Cardenas’ willingness to risk gang retaliation to snitch on defendant. He also argues Cardenas “reputation for violence” and “threatening actions toward [defendant]” supported defendant’s belief that he needed to defend himself. It is telling that, in raising these “facts,” defendant does not provide any citation to the record. Indeed, there is no evidence regarding what defendant knew or intended because defendant did not testify or offer any other evidence in that regard. While it was his absolute right not to testify, he cannot not now circumvent that decision by making representations as to what he knew and intended at the time of the incident and relying on those representations as if he had so testified at trial, particularly in the absence of any corroborating evidence.
Further, there was a dearth of circumstantial evidence to support defendant’s assertions, specifically his claim that he was in fear or believed he had to use deadly force. While Cardenas admitted being a member of the Franklin Norteños street gang and a convicted felon, and having purchased a firearm, there was no evidence, testimonial or otherwise, that he ever threatened or was violent toward defendant or was out to get defendant. To the contrary, Cardenas testified he and defendant were close friends until defendant accused him of being a snitch, pulled a gun on him, kidnapped him, beat him, and robbed him, and then demanded he rob someone else.
Defendant makes much of the fact that Cardenas initially lied during his testimony by denying he fired his gun at all, then later admitted he fired twice but claimed he did so only after defendant fired at him. Defendant claims Cardenas lacked credibility and, as such, a reasonable juror could have disbelieved some or all of his testimony. The claim is untenable. Cardenas’ credibility, though relevant, is not a substitute for the substantial evidence that is required to support the giving of the self-defense instruction. There was no evidence Cardenas was violent towards or threatened defendant. There was, however, evidence defendant was violent towards and threatened Cardenas. Further, notwithstanding that he first claimed not to have fired his gun at all, Cardenas never wavered on his claim that defendant shot first. No one else testified regarding that point and no other evidence was offered to the contrary. After seeing and hearing Cardenas’ testimony, the jury apparently found his account of events credible. There is simply no evidence, circumstantial or otherwise, sufficient to raise an inference that defendant believed he was in imminent peril and had to use deadly force.
Defendant also claims sufficient evidence supported an instruction on imperfect (or unreasonable) self-defense. Oddly, he argues the trial court should have instructed the jury with CALCRIM No. 603, an instruction dealing with the lesser-included offense of attempted voluntary manslaughter heat of passion, quoting the text of that instruction verbatim. CALCRIM No. 604 is the proper instruction for imperfect (unreasonable) self-defense. CALCRIM No. 603 is inapposite in the context of defendant’s claim of instructional error here.
In any event, assuming defendant simply misspoke and intended to argue there was sufficient evidence to instruct the jury with CALCRIM No. 604, the claim nonetheless fails. “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s . . . pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Here, the evidence established that defendant initiated the attack on Cardenas when he approached Cardenas’ sport utility vehicle and began shooting at Cardenas, hitting him once in the right shoulder. Cardenas returned fire, shooting twice after being struck by one of defendant’s shots. Again, there is simply no evidence Cardenas fired first. There is also no evidence defendant believed he was in imminent danger of being killed or suffering great bodily injury or that he believed the immediate use of deadly force was necessary to defend against the danger, regardless of whether one or both of those beliefs was unreasonable.
We conclude there was no substantial evidence that would have supported a jury finding that defendant reasonably or unreasonably believed he was in imminent danger of suffering bodily injury or that he could have reasonably or unreasonably believed the immediate use of force was necessary to defend against the danger presented. Therefore, the trial court had no duty, sua sponte or otherwise, to instruct on perfect or imperfect self-defense. In light of this conclusion, we need not reach defendant’s claim that the trial court’s refusal to instruct the jury on self-defense violated defendant’s constitutional right to due process.
II. DISPOSITION
The gang enhancements under section 186.22, subdivision (b), are stricken. In all other respects, the judgment is affirmed. The matter is remanded to the trial court for resentencing consistent with this opinion. The court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.


/S/

RENNER, J.



We concur:


/S/

ROBIE, Acting P. J.


/S/

DUARTE, J.