Filed 4/18/17 P. v. Ramsey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

AARON EUGENE RAMSEY et al.,

Defendants and Appellants.
C073536

(Super. Ct. Nos.
SF119250C & SF119250B)








Defendants Aaron Eugene Ramsey and Shaquile Lash appeal from their convictions arising from a carjacking and robbery and from driving a stolen vehicle different from the one that was carjacked in which officers found items belonging to the victims of the carjacking.
Ramsey contends (1) insufficient evidence supports (a) his conviction for unlawfully driving a car, (b) his conviction for receiving stolen property, and (c) his gang sentence enhancements; and (2) the trial court abused its discretion in sentencing him to an upper term and consecutive terms, and in its calculation of restitution.
Lash contends (1) insufficient evidence supports his gang sentence enhancements; and (2) the trial court abused its discretion when it refused to admit evidence of a codefendant’s statement to police to impeach the gang expert.
We reject each of these contentions and affirm the judgment, but must order a correction of Lash’s abstract of judgment to show his correct date of birth.
FACTS
Celeste Sanchez’s silver Pontiac was stolen from her apartment complex parking lot in Stockton on December 26, 2011. Sanchez did not give anyone permission to take her car.
Jagbir Sandhu was sitting in his pickup truck on the driveway of his house in Stockton at approximately 7:00 a.m. on December 28, 2011. He was waiting for his employee Jatinder Kumar to arrive when he noticed a silver car park behind his truck. Two young men exited the car. Sandhu rolled down his window to see what they wanted. One man put a gun to Sandhu’s ear and ordered him to roll down the truck’s passenger’s side window. Fearing for his life, Sandhu complied. A second man, defendant Lash, stood at the passenger side of the truck.
The gunman told Sandhu he was being robbed. He hit Sandhu in the nose with the butt of his gun, causing Sandhu to bleed. Lash hit Sandhu’s head six or seven times. The gunman took Sandhu’s cell phone, wallet, and watch. Sandhu had credit cards inside his wallet. Lash took three computers and other items from the backseat of Sandhu’s truck, including a computer bag that contained checkbooks and paperwork related to Sandhu’s business.
By then, Kumar had arrived at Sandhu’s house in his Toyota Camry, and the robbers approached him. The robbers told Kumar if he did not want to die, he should give them everything he had. Kumar stepped out of the Camry after being ordered to do so. One of the robbers put a gun on the side of Kumar’s abdomen. Kumar saw only one gun.
Kumar gave the robbers his wallet and cell phone. He had about $50 and Indian rupees in his wallet. The gunman drove away in Kumar’s Camry. The second robber drove away in the silver car that was parked behind Sandhu’s truck.
Law enforcement authorities found Kumar’s Camry parked in the 700 block of Astor Drive in Stockton later that morning. Defendant Ramsey lived at 707 Astor Drive. The Camry was unoccupied and there was no one in the area. Officers established surveillance of the area.
A few hours later, Officer Anthony Benatar of the California Highway Patrol saw Sanchez’s silver Pontiac, which had been reported stolen, drive past his surveillance location. Officer Benatar followed the Pontiac. The driver of the Pontiac stopped at Cortez Park. Officer Benatar and an officer in a second vehicle, San Joaquin County Sheriff’s Detective John Nesbitt, blocked the Pontiac with their vehicles. Lash was in the Pontiac’s driver’s seat, and Ramsey and codefendant Richard Burton were passengers. When the officers approached, all three men fled the Pontiac on foot.
Officer Benatar chased Ramsey through the park in his unmarked vehicle. He saw Ramsey throw something. Police later recovered the object, a pair of sunglasses. Officer Benatar booked the sunglasses into evidence because Kumar identified the sunglasses as belonging to him. Officers apprehended Ramsey with the aid of a police dog.
Detective Nesbitt chased after Lash, and Officer Benatar eventually apprehended him. Officer Benatar found Indian currency in Lash’s pants pocket. Kumar identified the Indian currency found on Lash as the currency the robber took from him. One of the rupee coins had a special meaning to him, and he knew one of the paper rupee’s last serial numbers because in his culture, it was considered lucky to have money with those numbers.
Detective Shawn Morin apprehended Burton. No stolen property or weapons were found on Burton.
Inside the Pontiac’s trunk, officers found paperwork belonging to Sandhu, checks and a checkbook from Sandhu’s company, a binder belonging to Sandhu, a medication bottle Sandhu identified as belonging to his ex-wife, and Sandhu and Kumar’s cell phones. Sandhu and Kumar identified the property found in the Pontiac’s trunk as belonging to them. Someone had used one of Sandhu’s credit cards to buy gas for $45 or $46. The computers Lash took were worth about $4,000. Sandhu never received the computers back.
Officer Benatar conducted in-field showups that day with Sandhu and Kumar. Sandhu identified Burton and Lash at the showup as the men who robbed him. During trial, he identified Burton as the gunman and Lash as the second robber.
Kumar did not identify the suspects at the showup. Officer Benatar testified Kumar was “petrified.” He told Officer Benatar he was scared. He looked down and only briefly glanced out the car window with his eyes without actually turning his head to look out the window.
At a second showup involving Ramsey, Sandhu and Kumar told officers Ramsey was not involved in the robbery.
Detective Morin testified at trial as a gang expert. He said the North Side Gangster Crips (NSGC) is a Stockton criminal street gang. Ramsey, Burton, and Lash were documented NSGC members on December 28, 2011. Detective Morin opined defendants committed their crimes for the benefit of, or in association with NSGC, and with the specific intent to promote or assist criminal conduct by NSGC members. We discuss Detective Morin’s testimony in greater detail below.
Defense
Burton testified at the trial. He said he was friends with Ramsey and Lash and would hang out with them two or three times a week. He denied involvement in the crimes against Sandhu and Kumar. He said he was asleep at home at 7:00 a.m. on December 28.
Burton said after he woke up that morning, he took cans to a recycling center near his home. He used part of the money he received for recycling the cans for bus fare to Ramsey’s house.
Burton said he played a video game at Ramsey’s house until Lash arrived driving a car. Burton knew neither Lash nor Ramsey owned a car or possessed a driver’s license. Burton claimed he had never seen the car Lash was driving and he did not ask where Lash got it. He said he did not know the car was stolen.
Burton, Ramsey, and Ramsey’s girlfriend got into the car. They were going to drop off Ramsey’s girlfriend at her house. Lash drove. Burton sat in the front passenger seat. Ramsey and his girlfriend sat in the backseat.
Lash stopped at a store to buy cigarettes. Everyone else stayed in the car. Lash then drove to Ramsey’s girlfriend’s house and dropped her off. Lash next drove to another location, where he got out of the car and went alone into a house. He returned to the car with marijuana. Lash then drove by Cortez Park.
Burton saw some girls at the park. He told Lash to go back to the park because he wanted to talk to the girls. Lash complied, and Burton talked to the girls. He got out of the car and ran into the park because he said he did not know the men at the park were police officers.
Burton admitted he was an NSGC gang member on the date of the charged offenses. He had been an NSGC gang member at least since he was 13 years old. Burton was 17 years old on December 28, 2011.
Lash testified at trial. He had known Burton for a long time. In December 2011, they saw each other about three times a week. Lash had known Ramsey for a couple of months and hung out with him about once a week. Lash did not have a job, a car, or a driver’s license, so to get to Ramsey’s house, he had to walk or get a ride.
Lash knew the Pontiac was stolen. He claimed he got the Pontiac from his brother Willie White. Lash admitted he ran from the police on December 28 because he knew the Pontiac was stolen.
Lash said that on December 27, he drove the Pontiac to Hayward with White and Ramsey. The trio returned to Lash’s home at approximately 2:00 a.m. on December 28. Lash got out of the car, and White drove away with Ramsey in the passenger seat.
Lash said he was asleep at home at 7:00 a.m. on December 28. He denied committing the robberies and carjacking of Sandhu and Kumar. He denied he was with Burton at 7:00 a.m. on December 28.
Lash said he awoke at approximately 10:00 a.m. on December 28 and drove to his father’s house in the Pontiac, which White had dropped off for Lash that morning. He picked up the rupees that Kumar identified as belonging to him from the driver’s side floor of the Pontiac and put the currency in his pocket.
Lash said he visited with his father for about 30 minutes. While Lash was at his father’s, Ramsey called him and asked if he could pick him and his girlfriend up at his house and give his girlfriend a ride to her house. Lash drove to Ramsey’s house, and Burton, Ramsey, and Ramsey’s girlfriend got in the Pontiac. The group went to a gas station where Lash bought cigarettes. Lash then drove to the house of Ramsey’s girlfriend to drop her off. Lash drove the Pontiac to Cortez Park. He ran from the police.
Lash admitted his fingerprint was found on the medication bottle Sandhu testified was taken from his truck. But Lash denied knowing there was stolen property in the Pontiac’s trunk. He said he never looked in the trunk.
PROCEDURAL HISTORY
A jury convicted Ramsey of unlawfully taking or driving the Pontiac (Veh. Code, § 10851, subd. (a)), receiving stolen property (Kumar’s sunglasses) (Pen. Code, § 496, subd. (a)), participating in a criminal street gang (§ 186.22, subd. (a)), and resisting a peace officer (§ 148). The jury also found true an allegation that Ramsey committed the unlawful driving and the receiving stolen property for the benefit of a street gang. (§ 186.22, subd. (b)(1).)
The jury convicted Lash of carjacking (§ 215, subd. (a)), robbery (§ 211), two counts of unlawfully taking or driving a vehicle (the Camry and the Pontiac), receiving stolen property (Kumar’s property), and resisting a peace officer. The jury found true allegations that Lash committed the carjacking, robbery, and unlawful driving counts for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C), (4).) The jury also found true allegations that Lash was armed with a firearm when he committed the carjacking and robbery (former § 12022, subd. (a)(1)), and was at least 16 years old at the time of the crimes. (Welf. & Inst. Code, former § 707, subd. (d)(1).)
The jury convicted Burton of unlawfully taking or driving a vehicle (the Pontiac), participating in a street gang, and resisting a peace office. It found Burton not guilty of receiving stolen property. It could not reach a decision on counts charging carjacking, assault with a firearm (§ 245, subd. (a)(2)), robbery, unlawfully driving a vehicle (the Camry), and another count for receiving stolen property. The trial court declared a mistrial as to those counts.
The trial court sentenced Ramsey to a prison term of nine years four months, calculated as follows: the upper term of three years for unlawful driving plus the upper term of four years for the gang enhancement, eight months for receiving stolen property plus one year for the gang enhancement, and eight months for a violation of probation. The upper term of three years for participating in a criminal street gang and a one-year term in county jail for resisting a peace officer were stayed under section 654.
The court also ordered Ramsey to pay $7,560 in restitution and $5,620 in victim restitution.
The trial court sentenced Lash to an indeterminate prison term of 32 years 8 months to life, calculated as follows: 15 years to life for carjacking including the gang enhancement, the upper term of five years for robbery plus 10 years for the gang enhancement and one year for the firearm enhancement, and eight months for unlawful driving plus one year for the gang enhancement. The court stayed sentences on the other convictions and their enhancements under section 654.
Ramsey and Lash are before us. Ramsey contends substantial evidence does not support his convictions of unlawful driving and receiving stolen property and his gang enhancements. He also claims we should remand the case for resentencing because the trial court erred by sentencing him to the upper term and to consecutive terms, and by incorrectly calculating the restitution.
Lash contends there is insufficient evidence to support his gang enhancements. He also claims the trial court abused its discretion when it refused to introduce evidence of statements Ramsey purportedly made to police in order to discredit Detective Morin’s gang testimony.
DISCUSSION
I
Ramsey’s Conviction of Unlawful Driving
Ramsey contends we must reverse his conviction of unlawful driving because no evidence established he took or drove the Pontiac. Ramsey fails to acknowledge the prosecution argued he was guilty as an aider or abettor. Sufficient evidence supports his conviction under that theory.
“To establish a defendant’s guilt of violating Vehicle Code section 10851, subdivision (a), the prosecution is required to prove that the defendant drove or took a vehicle belonging to another person, without the owner’s consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession. (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green).)[ ] Knowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant’s intent to deprive the owner of title and possession. (Ibid.)
“Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754 [].) This principle, applicable to theft offenses, applies as well to the unlawful driving of a vehicle. (Green, supra, 34 Cal.App.4th at p. 181.)” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574, fn. omitted.)
Where defendant is prosecuted as an aider and abettor, the prosecution must show the defendant, “ ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice’ ” aided, promoted, encouraged, or instigated the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) The prosecution must prove “more than mere presence in the automobile. At a minimum, defendant must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving.” (People v. Clark (1967) 251 Cal.App.2d 868, 874.)
Sufficient evidence establishes Ramsey aided and abetted Lash’s commission of unlawful driving. Lash admitted he knew the Pontiac was stolen. And Ramsey facilitated Lash’s unlawful driving by asking Lash to give him a ride in the car. Thus, the only element requiring discussion is whether sufficient evidence shows Ramsey knew the Pontiac was stolen when he asked Lash for a ride. We conclude it does. Lash and Ramsey were friends, as Lash hung out with Ramsey once a week. Lash did not hold a job, own a car, or hold a driver’s license. He had to walk or get a ride in order to go to Ramsey’s house. Hanging out with Lash once a week, Ramsey most likely knew Lash did not own a car or hold a driver’s license. On December 27, Lash drove Ramsey and Lash’s brother from Stockton to Hayward and back in the Pontiac he knew was stolen. Given Lash and Ramsey’s friendship and the duration of their trip to Hayward in the stolen car, the two most likely conferred about how the car came into Lash’s possession. The next day, Ramsey asked Lash, who had no car of his own, to pick him and his girlfriend up and take her home. Lash complied. And when approached by police after Lash and he had dropped his girlfriend off, Ramsey fled until taken down by a police dog.
Viewed collectively, this evidence was sufficient for a reasonable juror to conclude Ramsey knew the Pontiac was stolen before he asked Lash for a ride. Ramsey knew the Pontiac did not belong to Lash, and most likely learned on the long drive to Hayward and back the car had been stolen, but he asked Lash the next morning to give him a ride anyway. This is sufficient to uphold Ramsey’s conviction of aiding and abetting unlawful driving.
II
Ramsey’s Conviction of Receiving Stolen Property
Ramsey’s stolen property conviction was based on his throwing a pair of sunglasses into the air as he fled from police. At trial, Ramsey’s counsel conceded in his closing argument the sunglasses Ramsey threw “came from Kumar’s car.” He argued, however, that Ramsey did not know they were stolen. He contends his conviction is not supported by substantial evidence. We disagree.
“ ‘A conviction for receiving stolen property cannot withstand appellate scrutiny unless substantial evidence was presented to the trier of fact that (1) the property was received, concealed, or withheld by the accused; (2) such property had been obtained by theft or extortion; and (3) the accused knew that the property had been so obtained.’ [Citation.]” (People v. Grant (2003) 113 Cal.App.4th 579, 596, italics omitted.)
Defense counsel admitted the sunglasses Ramsey possessed had come from Kumar’s carjacked Camry, which was found parked on the same block on which Ramsey lived. The only issue for the jury to consider was whether Ramsey knew the sunglasses were stolen when he possessed them. Substantial evidence supports the jury’s determination he knew. Kumar had a pair of cheap sunglasses in his Camry the day it was carjacked. Ramsey had been riding in the stolen Pontiac with Lash, one of the perpetrators of the robbery and carjacking on Kumar and Sandhu. Inside the Pontiac and on Lash, police found Kumar’s Indian money, Kumar and Sandhu’s cell phones, and paperwork and checks related to Sandhu’s business. Ramsey tossed the sunglasses when approached by police, and the pair they retrieved were booked into evidence based on Kumar’s identification. And there were no sunglasses in Kumar’s Camry when Kumar retrieved it from the tow yard. All of this evidence collectively justified a reasonable juror concluding Ramsey knew the sunglasses were stolen when he obtained them and then tossed them away while police pursued him.
In his reply brief, Ramsey contends for the first time his trial counsel rendered ineffective assistance by admitting the sunglasses Ramsey threw had come from Kumar’s car. His failure to raise ineffective assistance in his opening brief forfeits the claim. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
III
Sentencing and Restitution Issues
Ramsey claims the trial court erred when it imposed the upper term sentence on his unlawful driving conviction, imposed consecutive terms on the receiving stolen property conviction and the corresponding gang enhancement, and imposed restitution. Ramsey, however, did not object to the court’s sentencing decisions on these matters. His failure to object forfeits the claims on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.)
In his reply brief, Ramsey argues for the first time that his trial counsel’s failure to object to the sentencing and restitution constituted ineffective assistance of counsel. Again, his failure to raise ineffective assistance in his opening brief forfeits the claim. (People v. Duff, supra, 58 Cal.4th at p. 550, fn. 9.)
IV
Gang Enhancements
Ramsey and Lash contend insufficient evidence supports the gang enhancements imposed on their convictions. They argue the evidence does not support findings that their crimes were gang related or they committed their crimes with the specific intent to aid NSGC members in criminal conduct. We disagree with the contentions. Sufficient evidence supports the gang enhancements against both defendants.
A. Additional background information
Detective Morin, the gang expert, testified Lash, Ramsey, and Burton were members of the NSGC criminal street gang. NSGC’s primary activities include firearms violations, carjacking, car theft, robbery, narcotics sales, shootings, murders, and “anything in between.” The gang’s members use stolen cars to commit crimes. The gang has common signs and symbols and traditionally associates with the color blue. It has numerous Web pages. It also has rival gangs.
Detective Morin explained respect is an important aspect of gang culture. Gang members commit crime to raise money to support their expensive lifestyle. A gang member gains respect based on the level of crime he commits and the violence he uses against his victims. Crime and violence raise the member’s respect and status among other members, and in turn elevate the respect the gang receives.
Detective Morin stated violence also creates fear and causes others to feel intimidated. The gang intimidates victims and the public because they are potential witnesses. The more their victims and citizens are in fear, the less likely they will cooperate with police, report crimes, or stand up to gang members.
Gang members enjoy “bragging rights.” When they commit crimes, they brag to their associates, girlfriends, and families about what they got away with. Then word spreads through social media such as Facebook and YouTube. The members post everywhere about what they do. Gang members will also share the loot with each other after committing the crimes.
In Detective Morin’s experience, the most brazen members of gangs are generally those aged 11 to 17 years old. They commit violent crimes to show they are worthy of being in the gang. Members aged 18 to 25 years old are well established in the gang. Members aged 25 years and older usually direct others to commit crimes but do not commit crimes themselves.
Responding to a hypothetical the prosecutor posed in which Lash and Burton committed the carjacking, robbery, and theft of the Camry, Detective Morin opined they committed their crimes in association with, and for the benefit of, NSGC. They committed their crimes in association with the gang because they performed the crimes together. They committed their crimes for the benefit of the gang because Lash and Ramsey were able to obtain the stolen “loot.”
Responding to a hypothetical mirroring the facts of the unlawful driving of the Pontiac, Detective Morin opined the defendants committed the crime in association with NSGC because they committed it together. Detective Morin also opined the gang benefited from the crime, as it gained another vehicle to use to commit other crimes.
When counsel for Lash asked Detective Morin to assume Burton was not involved in the carjacking and robbery incident, Detective Morin stated he could not conclude Lash committed those crimes in association with the gang. Detective Morin agreed
that “independent of anything else, . . . there’s nothing about . . . the facts of the carjacking . . . that would indicate [it] was gang-related.”
However, Detective Morin continued to opine Lash committed the carjacking crimes for the benefit of the gang, as the stolen property—specifically, the sunglasses—were passed along to Ramsey, another NSGC member. The gang benefited because they gained something that was not theirs.
Detective Morin opined NSGC derived another benefit because the carjacking put Sandhu and Kumar in fear of the gang. Detective Morin stated even if the victims did not know at the time of the crimes their perpetrators were members of NSGC, and there is no evidence they did, the gang nonetheless benefitted from the fear Lash’s acts would have generated in the victims and the community. The fear made it less likely the victims would report the crime, and the community, if it knew about the crime, would also be less likely to report it. The fear in the community could raise the gang’s status among other gangs. The fear could also cause witnesses not to identify the perpetrators for fear of retaliation.
B. Analysis
We review a jury’s true finding of a gang enhancement allegation for substantial evidence. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
Section 186.22, subdivision (b), increases punishment “when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 67-68 (Albillar).) The enhancement applies to “any person who is [1] convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, [2] with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
“[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it ‘clear that a criminal offense is subject to increased punishment under the [Street Terrorism Enforcement and Prevention Act (STEP)] only if the crime is “gang related.” ’ (People v. Gardeley (1996) 14 Cal.4th 605, 622, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Not every crime committed by gang members is related to a gang.” (Albillar, supra, 51 Cal.4th at p. 60.)
Ramsey and Lash contend insufficient evidence supports the gang enhancements imposed on their sentences for unlawfully driving the Pontiac. We disagree. First, the evidence shows they committed the crime in association with NSGC by committing the crime together. “A trier of fact can rationally infer a crime was committed ‘in association’ with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with gang members. [Citation.]” (People v. Leon (2016) 243 Cal.App.4th 1003, 1021.)
Second, the evidence shows they committed the crime with the specific intent to promote, further, or assist criminal conduct by NSGC members. Committing the unlawful driving together is sufficient evidence to establish their specific intent to further criminal conduct by each other. “[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
Lash further contends insufficient evidence supports the gang enhancements imposed on his crimes against Sandhu and Kumar; specifically, carjacking, robbery, stealing the Camry, and receiving stolen property. He argues the jury’s failure to convict Burton of any of the crimes against Sandhu and Kumar resulted in a lack of evidence to support either of the enhancement’s prongs.
We disagree with Lash’s contentions. Sufficient evidence establishes that Lash’s crimes in the carjacking incident were gang related. They were gang related because there was substantial evidence Lash committed them in association with the gang. Substantial evidence indicates Lash committed the carjacking in association with the gang because he committed the crime with Burton, a fellow gang member. Sandhu identified Burton and Lash as the robbers and Burton as the robber who held the gun against his ear when the carjacking occurred.
Lash contends we cannot rely on Sandhu’s identification of Burton because the jury hung on all of the charges against Lash associated with the carjacking. He argues the jury heard the evidence of Burton’s participation and did not believe it was sufficient to convict Burton; otherwise, it would have found him guilty. He argues because the jury rejected the evidence, we are bound by its determination and cannot rely on rejected evidence to support the enhancement. He cites no authority directly supporting his point, and we have found none. We disagree with his contention.
Lash’s argument is similar to issues raised regarding collateral estoppel and inconsistent verdicts. And the precedent there indicates the mistrial does not prevent us from relying on Sandhu’s identification of Burton. The jury’s inability to reach a verdict on the carjacking counts was “a nonevent” that has no preclusive effect. (Yeager v. United States (2009) 557 U.S. 110, 120 [174 L.Ed.2d 78, 88] (Yeager).)
In Yeager, the high court ruled that an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to render a verdict on other counts does not affect the acquittals’ preclusive force under the double jeopardy clause when the prosecution seeks to retry the counts on which the jury hung, and an element of those counts was decided by the acquittals. A jury acquitted the defendant of various counts of securities and wire fraud, and it hung on various counts of insider trading and money laundering. The government sought to retry defendant on the insider trading counts. The defendant moved to dismiss, arguing that the jury’s finding on the fraud counts that he did not possess inside information precluded being retried on the insider trading counts. (Yeager, supra, 557 U.S. at p. 115.)
The District Court denied defendant’s motion, and the Court of Appeals affirmed the denial. The appellate court agreed the jury had decided as part of acquitting defendant of fraud that he did not possess inside information, but it reasoned that a rational jury, having made that decision, would not have then hung on the insider trading counts. Considering the hung counts with the acquittals, the appellate court found the jury’s illogical action made it impossible to know what the jury necessarily determined. As a result, the court concluded the conflict between the acquittals and the hung counts barred application of issue preclusion on the retried counts. (Yeager, supra, 557 U.S. at pp. 115-116.)
The Supreme Court reversed. It held the appellate court erred when it considered the hung counts in determining whether issue preclusion applied on the retried counts. The high court’s reasoning applies here: “Because a jury speaks only through its verdict, its failure to reach a verdict cannot—by negative implication—yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that . . . should be part of the preclusion inquiry. [Citations.] Unlike the pleadings, the jury charge, or the evidence introduced by the parties, there is no way to decipher what a hung count represents. Even in the usual sense of ‘relevance,’ a hung count hardly ‘make[s] the existence of any fact . . . more probable or less probable.’ Fed. Rule Evid. 401. A host of reasons—sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few—could work alone or in tandem to cause a jury to hang. To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for a jury’s failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return.” (Yeager, supra, 557 U.S. at pp. 121-122, fns. omitted.)
The government argued that just as issue preclusion does not operate to void inconsistent verdicts (see United States v. Powell (1984) 469 U.S. 57 [83 L.Ed.2d 461] (Powell)), it should not operate to prevent retrial of hung counts that conflict with a verdict of acquittal on other counts. The Supreme Court rejected this argument in reasoning that also applies here: “There are two serious flaws in this line of reasoning. First, it takes Powell’s treatment of inconsistent verdicts and imports it into an entirely different context involving both verdicts and seemingly inconsistent hung counts. But the situations are quite dissimilar. In Powell, respect for the jury’s verdicts counseled giving each verdict full effect, however inconsistent. As we explained, the jury’s verdict ‘brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.’ (Id. at 67 . . . .) By comparison, hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. By equating them, the Government’s argument fails. Second, the Government’s reliance on Powell assumes that a mistried count can, in context, be evidence of irrationality. But . . . the fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything. By relying on hung counts to question the basis of the jury’s verdicts, the Government violates the very assumption of rationality it invokes for support.
“At bottom, the Government misreads our cases that have rejected attempts to question the validity of a jury’s verdict. In Powell and, before that, in Dunn[ v. United States (1932) 284 U.S. 390 [76 L.Ed. 356] (Dunn)], we were faced with jury verdicts that, on their face, were logically inconsistent and yet we refused to impugn the legitimacy of either verdict. In this case, there is merely a suggestion that the jury may have acted irrationally. And instead of resting that suggestion on a verdict, the Government relies on a hung count, the thinnest reed of all. If the Court in Powell and Dunn declined to use a clearly inconsistent verdict to second-guess the soundness of another verdict, then, a fortiori, a potentially inconsistent hung count could not command a different result.” (Yeager, supra, 557 U.S. at pp. 124-125, original italics.)
Although Yeager involved issue preclusion on retrial, its analysis of hung counts still applies. Contrary to Lash’s contention, we cannot infer anything from the jury’s inability to reach a verdict on the carjacking accounts against Burton. We do not know if the jury rejected Sandhu’s identification of Burton, or if they agreed with Sandhu but could not reach a decision for any number of reasons, including nullification. Because we cannot say with any certainty why the jury did not reach a verdict on the carjacking counts against Burton, the hung verdicts do not prevent us from relying on Sandhu’s identification of Burton as Lash’s accomplice as substantial evidence showing Lash committed the carjacking crimes in association with the gang.
Even if the jury had acquitted Burton, Powell and its progeny would prevent us from questioning the integrity of Lash’s enhancement based on its logical inconsistency with Burton’s acquittal. “[A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.” (Powell, supra, 469 U.S. at p. 67, italics added.)
Reviewing the evidence independent of whatever the jury could have decided regarding Burton, we conclude substantial evidence supports the jury’s determination that Lash committed the carjacking crimes in association with Burton, and thus the gang.
Having found sufficient evidence to support the gang enhancement’s first prong, we turn to the enhancement’s second prong, whether Lash committed the crime with the specific intent to aid gang members in their commission of crimes. Substantial evidence shows he did. His actions allowed Burton to commit the carjacking, and the carjacking and theft allowed the three gang members to receive and share in the distribution of stolen goods, including the sunglasses taken from the carjacked Camry.
The evidence thus supports the gang enhancement imposed on Lash’s crimes associated with the carjacking.
 
V
Admissibility of Evidence
Recall that Detective Morin opined the carjacking was committed not only in association with the gang, but also for the benefit of the gang in part because Ramsey obtained the sunglasses from Lash. Lash contends the trial court erred when it refused to allow him to introduce Ramsey’s statement to police that he took the sunglasses from inside the Pontiac. The trial court ruled the statement was hearsay and inadmissible. Lash contends the statement was not being admitted for the truth of the matter. He asserts the alleged error was prejudicial because had the evidence been admitted, it would have impeached Detective Morin’s opinion that Ramsey obtained the sunglasses from Lash, and thus undercut the expert’s opinion that the carjacking crimes were committed for the benefit of the gang.
Were we to assume for the sake of argument the trial court erred, we would find the error was harmless. We have concluded sufficient evidence supports the jury’s finding that Lash committed the carjacking in association with the gang, an alternative to finding Lash committed the crime for the benefit of the gang. Our conclusion eliminates the need to review the sufficiency of the evidence that the crime benefited the gang or determine whether the trial court’s decision not to admit the Ramsey’s statement to police violated Lash’s due process rights.
DISPOSITION
The clerk of the superior court is directed to correct Lash’s abstract of judgment to indicate his correct date of birth is May 9, 1994, and to forward the corrected abstract
 
of judgment to the Department of Corrections and Rehabilitation. The judgments of Ramsey and Lash are affirmed.



NICHOLSON , Acting P. J.



We concur:



MAURO , J.




HOCH , J.