P. v. Pineda





Filed 12/12/11 P. v. Pineda CA2/5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALVARADO PINEDA et al., Defendants and Appellants.

B222913 (Los Angeles County Super. Ct. No. BA268597)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed as modified.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Dennis Alvarado Pineda.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Celeya.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION
The two defendants were found guilty of second degree murder and attempted, willful, deliberate, premeditated murder. The jury found true the allegations necessary for gang enhancements and enhancements for personally using and personally discharging a firearm causing great bodily injury or death, even though only one of the defendants could have fired the weapon.
One of the defendants was in custody in Florida. The court in Florida appointed counsel for the defendant in connection with an extradition proceeding and advised defendant not to talk to any police officer and to disclose to any police officer who sought to interrogate him that he had an attorney. Los Angeles police officers went to Florida, and after defendant waived his right to remain silent, defendant confessed to those officers.
We hold that defendant’s statements in Florida were admissible. We also hold that as only one defendant could have discharged the firearm as to each victim, the enhancements must be modified accordingly. We otherwise affirm the convictions.

BACKGROUND
1. Eyewitness Testimony
On June 18, 2004, Alexander Betetta attended a family party celebrating his cousin’s college graduation. The party was held in the backyard of a residence near 59th Street and San Pedro. Betetta and his brother Enrique Cruz went to the party with Mario Cortez, Carlos Martinez, and other friends. Cruz’s common law wife dropped off Betetta and his companions at the party around 11:00 p.m. About 30 persons were present when Betetta and his companions arrived at the party.
When Betetta and the others arrived at the party, there was music playing and people dancing. In the right rear corner of the backyard there was a table with juice and sodas on it. In the left rear corner of the backyard, near the garage, there was a garbage can that contained beer. Defendants Dennis Alvarado Pineda and Juan Carlos Celeya were standing near the trash can that held the beer. There were three Hispanic males with defendants.
Betetta testified that shortly after he arrived, he observed a man approach the trash can that held the beer. As the man approached the trash can, defendants had serious looks on their faces. Pineda looked at the man. Celeya’s hands were balled into fists, but he did not look at the man. The man looked at defendants and turned around and left. Others walked in the direction of the trash can before turning and walking away. Several people who were standing near the trash can also moved away. Betetta then went to the trash can to get a drink. Defendants and one of their companions looked at Betetta and never took their eyes off of him. As Betetta tried to get a drink, Celeya threw his head back and nodded at Betetta. Betetta left because he did not want to “start any trouble.”
Betetta testified that as he walked away, he noticed a Hispanic man who was wearing a dark baseball cap with “LA” on it walk toward the “drink area.” Defendants and their three companions stepped in front of the man, blocking his path to the drink area. Defendants and their three companions approached the man and asked, “Where are you from‌” Initially, the man replied that he did not “gangbang.” Defendants and their companions repeated their question and the man replied, “I’m from nowhere.” The group persisted, surrounding the man and asking him, “Where are you from‌” The group looked angry. Betetta heard the man in the baseball cap ultimately say, “okay” or “SSK.” SSK is a tagging crew, thereby making him a “tag banger.”^[1]
According to Betetta, during the encounter, defendants and their companions said, “M.S.,” “M.S. 13,” and “La Mara.” One of defendants’ companions, a man with dark curly hair, said, “Do you know who this is‌ This is M.S.” The curly-haired man struck the tag banger in the face. The tag banger grabbed the curly-haired man and they fell to the ground.
Defendants and their companions formed a tight circle. One of defendants’ companions turned around toward the crowd and put out his arms to prevent anyone from interfering. As the tag banger struggled with the curly-haired man, Celeya pulled the tag banger away from the curly-haired man. Pineda and Celeya kicked and punched the tag banger. The tag banger managed to stand and Celeya placed him in a choke-hold. At that point, a nickel-plated, semiautomatic handgun fell to the ground from the curly-haired man’s waist. The tag banger escaped from Celeya’s grip and sprinted toward the driveway.
Betetta testified that the curly-haired man told Pineda to “go get him,” referring to the tag banger. Pineda ran toward the driveway followed by two of his companions. Celeya and the curly-haired man remained behind. As Pineda ran, he reached toward his waistband and stumbled. Pineda did not fall, but his hand touched the ground. As Pineda righted himself, he appeared to realize that there was nothing in his hand. Pineda bent over and picked up a small caliber, semiautomatic handgun.
At that point, Cruz approached and crossed paths with Celeya and the curly-haired man. Cruz said, “Please, don’t. Don’t fight. Just keep it calm. This is a family function here.” At that point, the curly-haired man punched Cruz in the face. Cruz defended himself and threw a punch at the curly-haired man. Celeya took a step forward, and pulled a semiautomatic handgun from his sweatshirt pocket. Celeya put the handgun next to Cruz’s rib cage and fired one shot. Cruz moved toward to the soda table. Betetta followed Cruz.
Betetta testified that as he went to his brother, he turned around and saw Celeya behind him. Celeya pointed his gun at Betetta’s chest and pulled the trigger but the gun did not fire. Betetta observed that a shell was jammed in the gun’s slide. Celeya attempted to clear the jam, but was unsuccessful. The curly-haired man ran and yelled, “Come on. Let’s go. Leave him alone.” Celeya attempted to strike Betetta, but missed. Celeya and the curly-haired man ran toward the driveway.
Betetta turned back to look for his brother. Betetta found his brother on the ground near the soda table. As Betetta attended to his brother, he heard five gunshots coming from the street followed by three additional shots. Betetta administered CPR to his brother, but his brother died from the gunshot wound.
At the same time, Cortez, who was wearing a blue baseball cap with “LA” on it, remained on the sidewalk in front of the residence speaking on his cell phone. Cortez testified that at some point he walked down the driveway toward the party. As Cortez was walking, he heard someone yell, “La Mara.” Cortez kept walking. Betetta approached Cortez and asked him if he was okay. Cortez did not understand the reason for Betetta’s inquiry. Betetta assisted Cortez to a chair and lifted Cortez’s shirt. Cortez had been shot in the stomach and was bleeding.
Later, Los Angeles Police Department Detective Elizabeth Rico interviewed Cortez. Cortez told Detective Rico that a Hispanic man bumped into him and pushed him into a wall. Cortez felt something warm on his stomach but did not know what it was because he did not realize he had been shot. Thereafter, Cortez was shot in his left arm. Believing his assailant was about to shoot him in the chest, Cortez put his head down and was shot in the chin. Cortez testified that he was shot a total of four times—twice in the abdomen, once in the left arm, and once in the chin—and was hospitalized for one month. Cortez was unable to identify the shooter from police photographs and could not identify Pineda or Celeya at trial as the shooter.
Four shell casings and a spent bullet were recovered from the scene. The police did not recover a gun at the scene or in their investigation.
Detective Rico did not interview Betetta until January 17, 2005. Shortly after Cruz’s funeral, Betetta drove to Novato, California because he “couldn’t be home.” During the interview, Detective Rico showed Betetta two photographic lineups. Betetta identified Pineda’s photograph in one lineup and stated that Pineda had a gun and ran toward the driveway. Betetta identified Celeya’s photograph from the second lineup and stated that Celeya shot Cruz.
Maynor Ayala testified that he attended the party on June 18, 2004. Ayala worked with defendants and knew Celeya’s brother “Giovanni.” About 11:30 p.m., Ayala saw defendants with Giovanni and “Chuco.” Around midnight, Ayala heard a commotion in the area of “Juan Carlos” and “Brons”^[2] and turned to see what was happening. Ayala then turned away. Shortly thereafter, Ayala heard a gunshot coming from defendants’ location. Ayala looked in the direction of the gunshot and saw a man lying on the ground. Defendants and their companions were running outside. Ayala heard at least one more gunshot coming from the direction of the street.
After the shooting, Ayala was taken to the police station where he identified Ceyela from a group of photographs as a person who was present at the party. The following month, the police showed Ayala additional photographs, and Ayala circled Pineda’s photograph. Ayala wrote, “This is the guy I saw shooting that night at the party. He’s the one who shot the guy who died. I know him, his. I know him as Brons.” At trial, Ayala denied that he saw who fired the gun. Ayala testified that before he spoke with the police in July, he spoke with others about the shooting and may have written the statement identifying Brons as the shooter based on what others may have told him.
Ramon Pineda^[3] (Ramon) testified that he saw Celeya, Celeya’s brother Giovanni and cousin Karina, and three men standing near a trash can. Ramon saw Cruz walking toward the location where the group was standing. Ramon’s sister said, “They are fighting, and they have a gun.” Ramon got up to find his children so they could leave. Ramon heard one gunshot that came from the area where Celeya stood with his companions, but did not see who fired the shot.
Ramon testified that Celeya ran past him. Celeya was alone. A second man who was holding a small semiautomatic gun also ran past Ramon. The man appeared to be using the gun to prevent others from following Celeya. Ramon was sure that Pineda was not the man with the gun. As the man with the gun ran past Ramon, one of Cruz’s friends grabbed the gunman by the shoulder, turned him around, and asked, “What have you done‌” The man with the gun shot Cruz’s friend three or four times before running into the street. Thereafter, Ramon heard about eight more gunshots.
G.P., Ramon’s son, was 13 or 14 years old at the time of the shootings and 18 years old at the time of trial. G.P. testified that he did not want to be in court because he did not see anything. G.P. then admitted that he had told the trial court and various police officers that he did not want to testify because he was afraid. G.P. believed that if he testified he would be labeled as a “snitch” and bad things happened to snitches.
G.P. testified that he went to a graduation party in June 2004, with his father, his brother, and his girlfriend. G.P. saw Celeya at the party, but he did not see Pineda. Near the end of the party, as G.P. stood across the street from the party with his girlfriend, he heard people screaming. G.P. also heard a noise that sounded like a single firecracker, after which he saw people running.
G.P. recalled telling the police that after he heard one shot, he saw “Juan Carlos” running out of the party with a smile on his face, but that was not true. G.P. also recalled telling the police that as Juan Carlos was running out of the party Juan Carlos yelled, “Mara Salvatrucha,” but that also was not true. On June 30, 2004, the police showed G.P. a six-pack photographic lineup. G.P. circled Juan Carlos’s photograph and wrote on the form, “Juan Carlos was the gangster that had a smile on his face and said Mara Salvatrucha after the first shooting.” On cross-examination, G.P. testified that his statements to the police were not to be trusted. G.P. testified that the shooting took place at his aunt’s house and that it was important to his father that the case be investigated. G.P.’s father wanted to see people prosecuted and he “put [G.P.] up to it.”
Detective Rico testified that G.P. told him that after he saw Juan Carlos run out of the party he saw another suspect with a gun. That suspect pointed his gun at the persons who were present to keep them from following. G.P. told Detective Rico that Cortez grabbed the suspect’s shoulder and the suspect fired two shots.
Julio Sarmiento, Ramon’s nephew, testified that he attended a graduation party at his aunt’s house on June 18, 2004. About 9:30 p.m. defendants and Celeya’s brother, who had wavy hair, arrived at the party. At some point, a fight broke out between Celeya’s brother and another man. Celeya moved toward the fight. Celeya turned his back to Sarmiento and began “moving his hands.” Sarmiento could not see what was in Celeya’s hands, but believed that Celeya was loading a gun.
Sarmiento testified that Cruz came into the area of the fight. Sarmiento looked away for a moment and when he looked back, he saw Cruz and Celeya on the ground fighting. While Cruz and Celeya were on the ground, Sarmiento heard a gunshot. Sarmiento did not see Celeya shoot Cruz. Celeya stood up and ran out of the party. As Celeya ran, Pineda provided Celeya with “cover,” pointing a gun at the persons who were present. Pineda then ran from the party. After defendants ran from the party, Sarmiento heard someone yell “Mara Salvatrucha.” Sarmiento also heard additional gunshots.
Ramon testified that he spoke with Sarmiento on September 13, 2008, about what he had seen at the party. According to Ramon, Sarmiento said that he had seen Celeya load a gun and that he heard a gunshot, but that he did not “see it.” Sarmiento said that he saw “him” running. Right after that conversation, Ramon called Los Angeles Police Department Detective Robert Solorza and told him what Sarmiento had said. Detective Solorza testified that Ramon told him that Sarmiento said that he had witnessed the shooting and saw Celeya chamber a round into a weapon and fire the weapon at Cruz.
On September 23, 2008, Detective Solorza interviewed Sarmiento. Detective Solorza testified that Sarmiento told him that Celeya’s brother argued with Cruz’s brother-in-law. Cruz went to help his brother-in-law. Juan Carlos turned his back and “made some movements with his arms” and then turned around and stood “normal.” Eventually, Juan Carlos and Cruz were fighting on the ground. At some point Juan Carlos got up and ran away. Sarmiento observed another person with a gun making “covering” movements. After seeing the person making covering movements, Sarmiento heard two and then four gunshots and someone yell, “Mara Salvatrucha.”
Ramon testified that after Detective Solorza interviewed Sarmiento, Sarmiento told Ramon that he was not going to tell Detective Solorza that he saw Juan Carlos shoot the man who died. Ramon reported the conversation to Detective Solorza, although, according to Detective Solorza, Ramon said that his conversation with Sarmiento took place before the detective interviewed Sarmiento.

2. Pineda’s Statements To Detectives Rico And Arciniega And To Officer
De Los Santos
On January 19, 2005, Detective Rico interviewed Pineda in Miami, Florida. Los Angeles Police Department Detective Richard Arciniega also was present. At first, Pineda told the detectives that he went to the party with some girls and that his friends “Giovanni” and “Chuco” were there. Pineda was speaking with “Carla” when he heard gunshots and saw everyone run out of the party. Pineda denied that he had a gun or that any of his friends had a gun.
After further questioning, Pineda told the detectives that “Juan Carlos” went to get a drink and “some guys” surrounded Juan Carlos because of the tattoos on his head. One of the men, who was from another gang, grabbed Juan Carlos’s arms. Giovanni hit the man who was holding Juan Carlos. Pineda saw a man point a gun at Juan Carlos. Pineda ran over to the group that was fighting with Juan Carlos and grabbed one of the men. Pineda said that he shot the man once with a “.25-caliber auto.” Pineda fired a few more rounds into the ground to break up the fight, and ran out with everyone else. Pineda threw out the gun somewhere in Los Angeles.
On January 20, 2005, City of Miami Police Department Officer Mario De Los Santos interviewed Pineda in Miami. Pineda told Officer De Los Santos that he had been arrested for a homicide and that “he would do ten years in prison like nothing.” Pineda told the officer that he was a member of the M.S. 13 gang, that the gang was his only family, and that he could not wait to go back to California to serve his prison time there.


3. Gang Evidence
Detective Flores testified as the prosecution’s gang expert. Detective Flores testified that the Mara Salvatrucha gang went by the initials “M.S.” and “M.S. 13” or was referred to as “La Mara.” The Mara Salvatrucha gang was affiliated with or fell under the umbrella of the Mexican Mafia which was a gang of gangs that controlled the jail and prison populations of Hispanic gang members. The Mexican Mafia’s influence extended into the “streets.” Mara Salvatrucha paid homage to the Mexican Mafia by using the number 13 which represented “M,” the 13th letter in the alphabet. Mara Salvatrucha used the color blue because of its Mexican Mafia association.
Detective Flores opined that Mara Salvatrucha was a criminal street gang. Mara Salvatrucha’s primary activities included murders, assaults, narcotics trafficking and distribution, robberies, extortions, burglaries, vandalisms, and various other property crimes. On October 31, 2003, Mara Salvatrucha gang member Elio Yanes was convicted of a murder and an attempted murder that were committed on August 18, 2002. On March 18, 2004, Mara Salvatrucha gang member Marvin Guerra was convicted of mayhem and an attempted murder that were committed on December 17, 2002.
According to Detective Flores, Mara Salvatrucha claimed territories in the Hollywood and Lafayette Park areas of Los Angeles. Los Coronados (or “Little Cycos” was a clique of Mara Salvatrucha. Mara Salvatrucha gang rivals included the White Fence, 18th Street, Playboys, and Azlan gangs. The location of the shooting in this case occurred in an area claimed as territory by the Playboys, Blood, and Crip gangs. The Mara Salvatrucha gang did not claim that area as its territory.
Detective Flores testified that it was the general practice of Mara Salvatrucha gang members to carry small caliber handguns that could be concealed easily. These gang members carried handguns for self-protection in the event they found themselves in rival gang territory. Such presence could be seen as disrespectful to the rival gang. If two to five Mara Salvatrucha gang members and gang associates were at a party in rival gang territory, Detective Flores would expect them to carry more than one gun; one gun would be insufficient to protect the group.
Detective Flores testified that the term “hit up” is slang for a confrontational inquiry about a person’s gang membership. In Detective Flores’s experience, if a Mara Salvatrucha gang member asked a person where the person was from the inquiry usually led to violence. If the person responded in a manner that appeared disrespectful to the Mara Salvatrucha gang member, the situation would escalate immediately. The Mara Salvatrucha gang existed through what it perceived as “respect.” Respect often was gained through fear and intimidation by such activities as “hitting up” people. If a Mara Salvatrucha gang member punched a person and the person in turn punched the gang member, such self-defense would be perceived as disrespectful and met with a more severe reaction.
Detective Flores identified Pineda’s Mara Salvatrucha and other gang tattoos from photographs. Pineda had “EME,” Spanish for the letter “M,” tattooed on the upper right part of his chest and “ESE,” Spanish for the letter “S,” tattooed on left part of his chest. Between the words “ESE” and “EME,” Pineda has tattooed “CLCS” which stood for the Coronado Little Cycos clique of which Pineda was a member. Pineda also had the tattoos “13” on the center of his chest, “MS” on his stomach and right chest, “M.S. for life” on the back of his head, “Mara Salvatrucha” on his back below the neck line, a devil’s pitchfork on his back, “MS” on his back, “mi vida loca” on his right shoulder (a common Hispanic street gang tattoo that translates as “my crazy life” in English), and “Mara Salvatrucha” within a tattoo of a cartoon figure. Based on the circumstances of the crimes and Pineda’s tattoos, Detective Flores believed that Pineda was a Mara Salvatrucha gang member on June 18, 2004. Pineda’s gang moniker was “Bron.” Detective Flores did not know the meaning of “Bron.”
Detective Flores also identified Celeya’s Mara Salvatrucha gang tattoos from photographs. Celeya had the tattoos “Coronado” under his left breast representing his clique, “13” on his abdomen representing Mara Salvatrucha 13 “and affiliation of Surenos street gang under the umbrella of the Mexican Mafia,” “EM” and “ES” on his back, “MS X3” on his back, “MS” within diamonds on his wrist, “13” below the diamonds, and “MS” on his ankle with the devil’s pitchfork as background. Based on the circumstances of the crimes and Celeya’s tattoos, Detective Flores believed that Celeya was an active participant with the Mara Salvatrucha gang on June 18, 2004. Celeya’s gang moniker was “Maldito,” which translates as “evil” in English.
The prosecutor gave Detective Flores a set of hypothetical facts based on the facts in this case. Based on those hypothetical facts, Detective Flores opined that the acts described were committed for the benefit of, in association with, and in furtherance of a criminal street gang. Detective Flores explained that in the hypothetical, Mara Salvatrucha gang members were involved in a confrontation with an individual that escalated into a physical altercation which then escalated into a shooting. The gang members assisted each other and represented the gang by calling out the gang’s name as they left the area.

4. Proceedings
A jury convicted defendants and appellants Pineda and Celeya of the second degree murder of Enrique Cruz (Pen. Code, § 187, subd. (a)^[4]) and the attempted willful, deliberate, premeditated murder of Mario Cortez (§§ 664, subd. (a) & 187, subd. (a)). The jury found true the allegations that defendants committed the offenses for the benefit of, at the direction or, or in association with a criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. (§186.22, subd. (b)(1).) The jury also found true the allegations with respect to both offenses that defendants personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The jury further found true the allegations with respect to both offenses that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), intentionally and personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)) (the murder verdict forms incorrectly list section 12022), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)). In a bifurcated trial, the trial court found true the allegations that Celeya had been convicted of a prior serious felony (§ 667, subd. (a)(1)), had served a prior prison term (§ 667.5, subd. (b)), and had been convicted of a prior serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court sentenced Pineda to 80 years to life in state prison and Celeya to 115 years to life in state prison.
On appeal, Celeya contends that the trial court erred in permitting the prosecutor to amend the information after the close of evidence to add certain firearm allegations; in admitting gang evidence that denied Celeya a fair trial and due process; in modifying CALJIC Nos. 17.19, 17.19.5, and 2.13; in failing to modify CALJIC No. 3.02; in failing to instruct the jury with several “pinpoint” instructions; and by depriving Celeya of a fair trial and creating a miscarriage of justice by virtue of the cumulative prejudice from the trial court’s errors. Celeya also asserts that if the other contentions fail, the abstract of judgment should be amended to reflect joint and several liability for the restitution fine.^[5] Pineda contends that the trial court erred in failing to exclude his statement to a police officer and CALJIC No. 3.02 improperly defined the natural and probable consequences theory of culpability. Pineda joins Celeya’s contentions concerning the admission of gang evidence, instructional error, and cumulative prejudice.

DISCUSSION
I. The Trial Court Properly Admitted Pineda’s Statement To Detectives Rico
And Arciniega
Defendant Pineda contends that the trial court erred in denying his motion to exclude his statement to Los Angeles Detectives Rico and Arciniega in Florida because the statement was obtained in violation of his Sixth Amendment right to counsel. The trial court properly admitted the statement.
A. Background and Procedural History^[6]
On July 22, 2004, the Los Angeles County District Attorney’s Office filed a felony complaint for arrest warrant against Pineda and Celeya for the murder of Cruz and attempted murder of Cortez. In November 2004, defendants were identified as suspects in a home invasion robbery in Miami, Florida. On January 15, 2005, the Miami Dade Police Department arrested defendants on the outstanding California warrants.
On January 18, 2005, extradition proceedings commenced in Miami before Judge Gerald Klein. Judge Klein informed Pineda about the extradition process and, when Pineda expressed ambivalence about whether to waive extradition, Judge Klein appointed a public defender to represent Pineda in the extradition proceedings. The public defender advised Judge Klein that Pineda was not waiving his right to counsel. Judge Klein advised Pineda that he should not talk to any police officer who tried to talk to him and that he should disclose to any such police officer that he had an attorney. On January 19, 2005, Detectives Rico and Arciniega interviewed Pineda. Pineda waived his Miranda^[7] rights and made the statement set forth in the background section above.
Prior to trial, Pineda moved to exclude his statement to Detectives Rico and Arciniega as having been taken in violation of his Sixth Amendment Right to counsel.^[8] Pineda argued that the detectives interviewed him without his counsel present after his appointed counsel in the Florida extradition proceeding expressly stated that Pineda was not waiving his right to counsel. The prosecution filed an opposition and supplemental opposition and Pineda filed a response. The trial court granted Pineda’s motion.
Thereafter, the prosecution filed a renewed opposition to Pineda’s motion to exclude his statement to Detectives Rico and Arciniega, and Pineda filed a response. At the hearing on the renewed opposition, the trial court framed the issue as “whether, in fact, as to the California case, the right to counsel has attached and has been asserted, and the question really is whether it is a valid assertion.” The trial court reversed its prior ruling, and ruled that Pineda’s statement to the detectives was admissible. Citing People v. Viray (2005) 134 Cal.App.4th 1186, the trial court found that the Sixth Amendment right to counsel had attached when the prosecution filed a complaint charging Pineda with murder and attempted murder. The trial court further found, however, that the Florida public defender’s assertion of the right to counsel was invalid with respect to the California case because the Florida court did not have jurisdiction over the California case, the Florida court appointed the public defender for the limited purpose of representing Pineda in the extradition proceedings, and the public defender had no connection to or association with the California case.
In a subsequent hearing on Pineda’s motion to exclude his statements to Detectives Rico and Arciniega as taken in violation of the Fifth Amendment, the trial court held that Pineda had been fully and completely advised of his Miranda rights and that he knowingly and intelligently waived those rights. The trial court further found, in light of Pineda’s Miranda waiver, that Pineda had not asserted or invoked his Sixth Amendment right to counsel at the time of the interview.

B. Application of Relevant Principles
“[O]nce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U.S. 201, 204-205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see also United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).” (Montejo v. Louisiana (2009) ___ U.S. ___ [129 S.Ct. 2079, 2085] (Montejo).) “Several California cases support the proposition that the right to counsel attaches, and Massiah’s prohibition against interrogation takes effect, at the time a criminal complaint is filed.” (People v. Viray, supra, 134 Cal.App.4th at p. 1194.)
It is “beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U.S. 344, 352–353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment: [¶] ‘As a general matter . . . an accused who is admonished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.’ Patterson, supra, at 296, 108 S.Ct. 2389, 101 L.Ed.2d 261.” (Montejo, supra, 129 S.Ct. at p. 2085.)
Pineda contends that the trial court erred in failing to exclude his statement to Detectives Rico and Arciniega because he was represented by counsel at the time of the interview, his counsel was not present for the interview, his counsel had asserted his Sixth Amendment right to counsel prior to the interview, and his counsel’s assertion of his Sixth Amendment right was effective in this case even though counsel was appointed solely to represent him in an extradition proceeding in Florida.
Extradition proceedings are a hybrid—part administrative, part civil, and part criminal in nature. “Extradition represents an exercise of the executive decision-making power.” (People v. Superior Court (Ruiz) (1986) 187 Cal.App.3d 686, 692; see §§ 1547 et seq.; Biddinger v. Commissioner of Police (1917) 245 U.S. 128, 132; United States v. Yousef (2nd Cir. 2003) 327 F.3d 56, 142, fn. 66 [extradition proceedings are civil proceedings related to criminal proceedings in another jurisdiction]; DeSilva v. DiLeonardi (7th Cir. 1999) 181 F.3d 865, 868 [“the Sixth Amendment does not apply to extradition”]; Chewning v. Rogerson (8th Cir. 1994) 29 F.3d 418, 420-421 [“It is well settled that extradition proceedings are not considered criminal proceedings that carry the sixth amendment guarantee of assistance of counsel”]; Judd v. Vose (1st Cir. 1987) 813 F.2d 494, 497 [extradition hearing does not involve guilt or innocence, and is not criminal proceeding within meaning of Sixth Amendment]; see also Snider v. Seung Lee (4th Cir. 2009) 584 F.3d 193, 203, fn. 2 [“Extradition is sui generis, neither civil nor criminal in nature”]; Martin v. Warden, Atlanta Pen (11th Cir. 1993) 993 F.2d 824, 828 (Martin) [“An extradition proceeding [is an executive function and] . . . [i]t clearly is not a criminal proceeding”]; Matter of Extradition of Pazienza (S.D.N.Y. 1985) 619 F.Supp. 611, 618 [“An extradition proceeding is neither strictly criminal nor civil; it is a hybrid”].) “Constitutional procedural protections which by their terms are applicable only in criminal cases, however, are unavailable in extradition proceedings.” (Martin, supra, 993 F.2d at p. 829; see Taylor v. Jackson (S.D.N.Y. 1979) 470 F.Supp. 1290, 1292 [the Sixth Amendment’s guarantee of a speedy trial and the right to assistance of counsel do not apply to extradition proceedings].)
In People v. Wheelock (2004) 117 Cal.App.4th 561, as here, the defendant moved to suppress the statement he made at the Utah jail where he was being held pending extradition. He was represented by counsel in connection with extradition. He contended that because he was questioned by California law enforcement officers in the absence of his counsel, his statements violated his Sixth Amendment rights, even though he had waived his Miranda rights. The court held that the trial court properly denied the motion because the “commencement of extradition proceedings is not enough, by itself, for the Sixth Amendment right to counsel to attach.” (Id. at p. 569.) Courts in other jurisdictions are to the same effect. (State v. Waggoner (Idaho 1993) 864 P.2d 162, 165 [“The statutory right to counsel does not give rise to a constitutional right to an attorney because extradition is not a critical stage of the criminal proceedings. See Dunkin v. Lamb, 500 F.Supp. 184 (D.Nev.1980). [¶] Because the only purpose of extradition is the return of the fugitive to the place of the alleged offense, his constitutional rights, other than the present right to personal liberty, are not involved. People ex rel. Shockley v. Hardiman, 152 Ill.App.3d 38, 105 Ill.Dec. 240, 504 N.E.2d 109 (1987). [Fn. omitted.] It also has been held that an accused’s right to counsel did not attach when he was arrested on a fugitive warrant and waived extradition proceedings. Judd v. Vose, 813 F.2d 494 (1st Cir.1987).”]; People v. Makiel (Ill.App. 1994) 635 N.E.2d 941, 953 [“[E]ven though defendant’s sixth amendment right to counsel had attached by virtue of his indictment, his mere acceptance of counsel for the extradition hearing was insufficient to invoke that right, his waiver of the right was effective, and the circuit court properly denied his motion to suppress [fn. omitted]”].) In a recent case, a court in Florida, the state from which Pineda was being extradited, held “that Appellant did not invoke his right to counsel on the murder and burglary charges. The mere appearance of counsel for purposes of an extradition proceeding does not amount to an invocation of the right to counsel on the underlying criminal charges. Accord Chewning, 29 F.3d at 422 (holding that mere appearance of counsel at extradition hearing could not reasonably be considered positive enough assertion, without other supporting evidence, to amount to invocation of right to counsel on underlying criminal charge); People v. Makiel, 263 Ill. App. 3d 54, 635 N.E.2d 941, 953, 200 Ill. Dec. 602 (III. App. Ct. 1994) (holding mere acceptance of counsel for extradition insufficient to invoke right to counsel on underlying criminal charge).” (Williams v. State of Florida (Fla.App. 2010) 38 So.3d 188, 194.)
Regardless of the retention or appointment of counsel at the extradition hearing or for any other purpose, the United States Supreme Court’s decision in Montejo, supra, 129 S.Ct. at p. 2085, conclusively establishes that Pineda waived his Sixth Amendment right to counsel when he was advised of and voluntarily, knowingly, and intelligently waived his Miranda rights. (Ibid.) Thus, Pineda’s statements were admissible in this case. (Ibid.)



II. Pineda’s Claim That CALJIC No. 3.02 Provided A Legally Incorrect
Formulation Of The Natural And Probable Consequences Theory Of
Culpability
Pineda contends that CALJIC No. 3.02^[9] erroneously permitted the jury to make a natural and probable consequences finding based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of assault in the abstract rather than based on whether the murder in this case was a natural and probable consequence of the assault in this case. Because Pineda did not request in the trial court that CALJIC No. 3.02 be modified in a manner consistent with his claim on appeal, Pineda has forfeited appellate review of this claim.

A. Background
At trial, the prosecutor requested that the jury be instructed on aiding and abetting culpability with CALJIC No. 3.02 based on the target crimes of assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1) and assault with a firearm under section 245, subdivision (a)(2). Celeya’s counsel objected to the instruction on the ground that the evidence did not support the instruction. In support of this objection, Celeya’s counsel argued that with respect to the murder charge the only evidence adduced at trial supported his guilt as the actual perpetrator of Cruz’s murder and not as an aider and abettor. With respect to the attempted murder charge, Celeya’s counsel argued that the evidence showed that Pineda likely was the actual perpetrator and that Celeya was not with Pineda in the driveway at the time of the offense and thus could not have foreseen the attempted murder as a natural and probable consequence of the assault by means of force likely to produce great bodily injury.
Celeya’s counsel requested that if the trial court were to instruct the jury with CALJIC No. 3.02 that the trial court modify the instruction to name the victims of the assault by means of force likely to produce great bodily injury and the assault with a firearm. Celeya’s counsel argued that the tag banger should be identified as the victim of the assault by means of force likely to produce great bodily injury and Betetta should be identified as the victim of the assault with a firearm.
The trial court asked Pineda’s counsel if he wished to be heard. Pineda’s counsel responded that he would join Celeya’s counsel’s arguments. The trial court found a substantial evidentiary basis for instructing with CALJIC No. 3.02 without the requested modification.

B. Forfeiture
Although an appellate court may review an unobjected-to instruction that allegedly implicated a defendant’s substantial rights^[10], a claim that an instruction that is correct in law should have been modified is not cognizable on appeal when a defendant failed to meet his obligation to request clarification of the instruction in the trial court. (People v. Richardson (2008) 43 Cal.4th 959, 1023, citing People v. Guerra (2006) 37 Cal.4th 1067, 1134.) CALJIC No. 3.02 properly defines the natural and probable consequences doctrine. (See People v. Richardson, supra, 43 Cal.4th at p. 1022 [rejecting “any challenge to the adequacy of CALJIC No. 3.02’s explication of the natural and probable consequences doctrine”].)
Because CALJIC No. 3.02 properly defines the natural and probable consequences doctrine and Pineda failed to object to and request a modification of CALJIC No. 3.02 in the trial court on the same grounds as he raises on appeal, Pineda has forfeited appellate review of this claim. (People v. Richardson, supra, 43 Cal.4th at pp. 1022-1023.) Pineda argues that his counsel’s joinder in Celeya’s counsel’s objection and request for modification of CALJIC No. 3.02 preserved his claim on appeal because Celeya’s counsel’s proposed modification “would have served the identical purpose of curing the instructional error by drawing the jurors’ attention to the need to focus on the specific, concrete acts comprising the target offenses under these facts, not on the crimes in the abstract.” Celeya’s requested modification to identify certain persons as the victims of the target felonies may have cured the alleged defect in CALJIC No. 3.02 in the same way as Pineda’s proposed modification, but Celeya’s requested modification was entirely different than the modification Pineda asserts on appeal. Pineda cites no authority for the proposition that he was relieved from requesting in the trial court the specific modification he asserts on appeal because a different requested modification might have achieved the same result. Pineda’s counsel’s joinder in Celeya’s counsel’s argument in the trial court preserved Pineda’s right to appellate review only with respect to that argument. In this regard, Celeya has appealed the trial court’s ruling with respect to his requested modification of CALJIC No. 3.02, and Pineda has joined that argument.
Even if we were to find that Pineda has preserved this issue for review, the issue fails because the instruction did not permit the jury to decide whether murder in the abstract is a natural and probable consequence of assault in the abstract as argued by Pineda. Instead, the instruction told the jury to decide the natural and probable consequences issue based on the facts of the case. Specifically, the instruction states, “The issue is to be decided in light of all of the circumstances surrounding the incident.”

III. The Trial Court Did Not Abuse Its Discretion In Permitting The Prosecution
To Amend The Amended Information To Add Firearm Allegations
Celeya contends that the trial court abused its discretion in permitting the prosecution to amend the amended information as to the murder and attempted murder charges to add allegations that he personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court did not abuse its discretion.


A. Background
The charging summaries on the complaint, the information, and the amended information allege an enhancement under subdivision (d) of section 12022.53 as to the murder and attempted murder charges for both Pineda and Celeya. The summaries do not contain an allegation against either defendant under subdivision (b) or (c) of section 12022.53. The body of the complaint, the information, and the amended information contain allegations under section 12022.53, subdivisions (b), (c), and (d) as to Pineda, but no corresponding allegations as to Celeya.
After the presentation of the prosecution’s evidence, but before the prosecution rested, Celeya’s counsel noted, apparently in connection with a prior motion to dismiss under section 1118.1, that the amended information did not contain allegations that Celeya personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The prosecution responded that the summary of charges in the complaint and the face pages of the information and amended information alleged a violation of section 12022.53, subdivision (d) against Celeya as to the murder and attempted murder counts. Thus, the prosecutor argued, Celeya’s counsel was on notice.
The trial court stated, “The complaint, certainly the preliminary hearing transcript, certainly the information in this case, comes as no surprise Mr. Celeya.” The prosecutor stated, “Mr. Celeya’s name was omitted unintentionally regarding the 12022.53 (d), but it is on the face page of every single document. It is at the end of the document putting counsel on notice since when the case was filed.” The trial court stated, “I do find there is a requisite notice, so I appreciate your continued 1118.1, Mr. Kalra [Celeya’s counsel]. I do believe that the defense has been on notice. It is no surprise. Certainly the evidence in this case has established it.” The trial court stated that the question was whether it would allow the jury to consider allegations under subdivision (b) and (c) of section 12022.53. Apparently contemplating a motion to amend the amended information by the prosecution to allege allegations under subdivisions (b) and (c), the trial court stated that any such motion was, at that time, denied.
The prosecutor later moved to amend the amended information to add Celeya’s name to the body of the allegations under section 12022.53, subdivisions (b), (c), and (d). Celeya’s counsel objected on the grounds that the body of the complaint, the information, and the amended information did not state against Celeya the allegations the prosecution sought to add. Such an amendment would prejudice Celeya, his counsel argued, because the defense was “denied an opportunity to have a 995” and had relied on the state of the information when it made its section 1118.1 motion. The trial court granted the prosecutor’s request, ordering the amended information amended to include allegations under section 12022.53, subdivisions (b), (c), and (d) in the body of the information. With respect to the allegation under subdivision (d), the trial court noted that that allegation as to Celeya already appeared on the front of the amended information.

B. Application of Relevant Principles
“The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Thomas [(1987)] 43 Cal.3d [818,] 823, and cases cited.)” (People v. Jones (1990) 51 Cal.3d 294, 317.) “[A] defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747.)
“[A]n information may be amended to conform to proof at any stage of the proceeding so long as the defendant’s substantial rights are not compromised.” (People v. Carr (1988) 204 Cal.App.3d 774, 780, fn. 7, citing § 1009^[11] and People v. Jones (1985) 164 Cal.App.3d 1173, 1178-1179 [“Amendment of an information at trial to state offenses established at the preliminary hearing or even during trial is proper as long as the defendant’s substantial rights are not compromised. [Citations.]”].) An information may not be amended unless the proposed amendment is supported by evidence presented at the preliminary hearing. (§ 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1007-1008.) We review a trial court’s decision to permit amendment of an information for an abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Celeya contends that the trial court abused its discretion in permitting the amendment because the evidence adduced at the preliminary hearing that he fired the only gun used in the murder and attempted murder was ambiguous at best and nonexistent at worst. As long as defendant had notice of the allegations, whether or not there was evidence at the preliminary hearing is not determinative of the right to amend. The complaint, information, and amended information provided Celeya with the required due process notice of the specific sentence enhancement allegations that would be invoked to increase his punishment for the murder and attempted murder charges. With respect to the allegation under subdivision (d), the charging summaries on the complaint, the information, and the amended information all allege an enhancement under subdivision (d), thus giving Celeya notice of that allegation. As for notice that his conduct could be subject to punishment under subdivisions (b) and (c) of section 12022.53, the allegation under subdivision (d) served also to give notice under subdivisions (b) and (c). A defendant cannot violate subdivision (d) of section 12022.53 without also violating subdivisions (b) and (c). That is, a defendant cannot intentionally and personally discharge a firearm causing great bodily injury or death (subdivision (d)) without also personally using a firearm (subdivision (b)) and intentionally and personally discharging a firearm (subdivision (c)). Accordingly, an allegation that a defendant’s conduct is subject to enhanced punishment under subdivision (d) provides notice that the same conduct is subject to punishment under subdivisions (b) and (c). (See People v. Strickland (1974) 11 Cal.3d 946, 959-961 (Strickland).)
In Strickland, supra, 11 Cal.3d 946, the defendant was charged with murder, but found guilty of manslaughter. (Id. at p. 951.) The trial court imposed a sentence enhancement under the version of section 12022.5 then in effect that applied to murder, but not to manslaughter. (Id. at pp. 959-960.) The Supreme Court found that the section 12022.5 enhancement did not apply, but that the defendant should have been sentenced under the version of section 12022 then in effect that applied to felony offenses committed while the defendant was armed with a deadly weapon. (Strickland, supra, 11 Cal.3d at pp. 960-961.) Quoting People v. Provencher (1973) 33 Cal.App.3d 546, 549-550, the court in Strickland, supra, 11 Cal.3d at page 961 reasoned, “‘Penal Code section 12022.5 and section 12022 . . . do not define a crime or offense but relate to the penalty to be imposed under certain circumstances. Thus section 12022 is not a lesser included offense under 12022.5 but section 12022 would be applicable in any case in which 12022.5 applies. Basically 12022.5 is a limited application of section 12022 with a heavier penalty. In the present case appellant did not come within the provisions of section 12022.5, as the crime of which he was convicted was not specified in that section, but the jury did find that he used and thus was armed with a firearm, a shotgun, at the time the offense was committed. Appellant was charged in the commission with the use of a firearm under section 12022.5, thus had notice that his conduct [could] also be in violation of section 12022.’”
Here, the complaint, information, and amended information alleged that Celeya violated subdivision (d) of section 12022.53. By alleging a violation of subdivision (d), the charging instruments provided notice to Celeya that his conduct also violated subdivisions (b) and (c). Because the charging instruments in this case provided Celeya notice that his conduct violated subdivisions (b), (c), and (d) of section 12022.53, the trial court did not err in allowing the amendments to the amended information.

IV. The Trial Court Did Not Abuse Its Discretion In Admitting Gang Evidence
Celeya contends that the trial court abused its discretion in admitting expert testimony about gangs beyond that necessary to prove the gang allegations. Specifically, Celeya challenges the admission of Detective Flores’s testimony that the Mara Salvatrucha gang is affiliated with the Mexican Mafia, Detective Flores’s “detailed interpretation” of Celeya’s gang tattoos, and Detective Flores’s testimony about Celeya’s intent and guilt based on a hypothetical set of facts. The erroneous admission of the gang evidence, Celeya contends, deprived him of a fair trial and Fourteenth Amendment due process. Pineda joins Celeya’s contentions. The trial court did not abuse its discretion in admitting the challenged evidence.

A. Standard of Review
“A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)

B. Application of Relevant Principles
To prove a gang enhancement allegation under section 186.22, “the prosecution must prove that the crime for which the defendant was convicted had been ‘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) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’ during the statutorily defined period. (§ 186.22, subds. (e) and (f).)” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Apart from a gang enhancement allegation, “[e]vidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
A prosecutor properly may ask a gang expert hypothetical questions based on the
facts of a case. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.)
“A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]” (Ibid.)
Under Evidence Code section 352, a trial court may, in its discretion, exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. “‘Because evidence that a criminal defendant is a member of a . . . gang may have a “highly inflammatory impact” on the jury [citation], trial courts should carefully scrutinize such evidence before admitting it.’ [Citation.] Such evidence should not be admitted if only tangentially relevant [citation] because of the possibility that the jury ‘will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged’ [citation] . . . .” (People v. Gurule (2002) 28 Cal.4th 557, 653.)
“Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional W