P. v. Sanchez

Filed 8/5/09 P. v. Sanchez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from judgments of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant David Ernesto Sanchez.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Bonifacio Andres Patino.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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David Ernesto Sanchez (Sanchez) and Bonifacio Andres Patino (Patino) appeal from the judgments entered upon their convictions by jury of three counts of attempted murder (Pen. Code, 664, 187, counts 1-3),^[1]one count of shooting at an inhabited dwelling ( 246, count 4), and three counts of assault with a semiautomatic firearm ( 245, subd. (b), counts 5-7).^[2] As to all counts, the jury found to be true the allegation that appellants committed the offenses for the benefit of, at the direction of or in association with a criminal street gang ( 186.22, subd. (b)(1)). As to counts 1 through 3, the jury found that appellants committed the attempted murders willfully, deliberately and with premeditation within the meaning of section 664, subdivision (a), that a principal used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (e)(1), and that Sanchez personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (c). In connection with counts 5 through 7, the jury found to be true that Sanchez personally used a firearm within the meaning of section 12022.5, subdivision (a). The trial court sentenced each appellant on the attempted murder counts to three consecutive terms of life with the possibility of parole, plus three consecutive 20-year, firearm-use enhancements. Sanchez was ineligible for parole for a minimum term of 15 years. Sentencing on the remaining counts was imposed and execution stayed.

Appellants contend that (1) there was insufficient evidence to support their convictions of attempted willful, deliberate and premeditated murder, (2) there was insufficient evidence to support the gang allegation, and (3) the trial court erred in refusing to instruct the jury on grossly negligent discharge of a firearm ( 246.3) as a lesser included offense of shooting at an inhabited dwelling. Patino also contends that (4) there was insufficient evidence that he aided and abetted Sanchez and, hence, to support any of his convictions, and (5) the trial court erred in granting the prosecutions motion for joinder or, alternatively, refusing to sever his trial from that of Sanchez. Each appellant joins in the contentions of the other. (Cal. Rules of Court, rule 8.200; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)

We affirm.

FACTUAL BACKGROUND^[3]

The prosecutions evidence

The La Mesa Street shooting

On July 1, 2006, at approximately 10:30 p.m., Sidney Bosteder (Bosteder), Billy Perez (Perez), and Julio Machado (Machado) (collectively the victims) were standing in the driveway of the Machado family residence on La Mesa Street, in Sylmar. A red, four-door Honda driven by Patino, with Sanchez in the front passenger seat, stopped in front of the residence. Patino yelled to the victims, Where you guys from, which was understood as an inquiry into their gang affiliation. The victims responded that they were from nowhere, meaning they were not in a gang, which fact was later corroborated by police investigators. Appellants talked aggressively and made derogatory comments about the San Fer gang, such as Fuck Flappers, a derogatory term for the San Fer gang. Patino said, Fuck San Fers, and both appellants claimed affiliation with the Astoria Garden Locos gang, known as A.G.L.

The Honda then drove to the next intersection, the corner of La Mesa Street and Borden Avenue, turned right and stopped. Sanchez got out of the car, ran several steps toward where the victims were standing, removed a gun from his waistband and fired five to 10 bullets, aiming directly at the Machado house and the victims with what appeared to be a semiautomatic handgun. The victims hit the ground, and none were struck. But one bullet passed a few inches from one of them and other bullets ricocheted off the concrete, hit a nearby gate, a trash can, and a window in the Machado residence. Sanchez returned to the Honda, which sped down Borden Avenue.

Appellants Arrest

Los Angeles Police Sergeant Adrian Torres, patrolling in a marked police car near Borden Avenue, heard six gunshots. He turned onto Borden Avenue and saw the red Honda speeding ahead. Officer Torres accelerated and followed the Honda for approximately 20 minutes while it ran several stop signs, reaching speeds of 70 miles per hour. The Honda eventually slowed to a normal speed, turned into a residence driveway and stopped.

Officer Torres shined his spotlight on the Honda and exited his car. Sanchez got out of the Honda and fled on foot, carrying a blue steel, semiautomatic handgun. Patino remained in the car and was taken into custody. Forty-five minutes later, Sanchez was apprehended. A .45-caliber, Glock semiautomatic pistol with an empty magazine was found on the roof of a house three houses from where the Honda had stopped. It was identical to the handgun Officer Torres had seen Sanchez carrying when he fled.

The Investigation

Officers found nine .45-caliber special casings on La Mesa Street, 55 feet west of Borden Avenue and eight .22-caliber casings and one .45-caliber casing on Borden Avenue, 10 feet south of La Mesa Street. Officers also recovered a fragmented, spent .22-caliber bullet from inside a residence at the corner of La Mesa Street and Borden Avenue. That residence had had two bullet impact points in its exterior wall and a bullet hole in the kitchen window. The officers also found a bullet impact on the rear fender of a pickup truck parked on Borden Avenue and La Mesa Street. Ballistic testing confirmed that all of the .45-caliber casings were fired from the Glock .45-caliber, semiautomatic firearm recovered when Sanchez was apprehended.

Gang testimony

Los Angeles Police Officer Alonso Menchaca testified as a gang expert that the San Fer and A.G.L. gangs were rivals. The corner of Borden Avenue and La Mesa Street was within San Fer gang territory. Officer Menchaca opined that Sanchez was an A.G.L. gang member based upon his past admission of membership and his wearing gang tattoos, and Patino was also a member of that gang based upon his driving the getaway car, asking the victims where they were from, making derogatory comments about the San Fer gang, and claiming A.G.L. membership. Making such a claim without being an A.G.L. member would have subjected Patino to potential harm. Moreover, it is unlikely that he would have been allowed to drive a car involved in a gang shooting if he was not an A.G.L. gang member.

Officer Menchaca also testified that the question by the occupants of the Honda, Where you from signifies a readiness to fight, which frequently follows that question. Making such a challenge in rival gang territory and engaging in a shooting there would enhance the reputation of the shooters within the gang and the gangs reputation for violence in the community by instilling fear in the residents. Based upon hypothetical facts consistent with the evidence in this case, the officer opined that the La Mesa Street shooting was for the benefit of, at the direction of, or in association with a criminal street gang.

The defenses evidence

Patinos father testified that on the evening of July 1, 2006, Patino borrowed his mothers Honda. On August 22, 2006, his father noticed a bullet hole in its rear license plate and found a bullet fragment in the trunk. He also noticed a skid mark across the roof that appeared to be from a bullet hitting the top.

Patinos licensed private investigator, Bill Rhetts, examined the bullet hole in the rear of the Honda and concluded that it was consistent with a .22 or .25-caliber bullet traveling at a downward angle. He also examined the hole in the rear quarter panel of the pickup truck parked in the driveway of the residence at Borden Avenue and La Mesa Street and also found it to be consistent with a .22-caliber bullet. He opined that the bullet which struck the pickup truck was fired at it from the direction of the Machado residence and was consistent with a .22-caliber bullet.

Rebuttal evidence

Police Detective Kim Gilbert opined that the caliber and trajectory of the bullet which made the hole in the pickup truck could not be determined and that the hole could have been caused by a ricocheting bullet.

DISCUSSION

I. Joinder

A. Background

Before trial began, the prosecutor moved to consolidate the La Mesa Street shooting charges against appellants with separately filed charges against Sanchez for the Sotelo shooting. The facts pertaining to the Sotelo shooting are as follows:

On June 26, 2006, Sotelo was outside a market, at Foothill Drive and Astoria Street. This location was claimed by both the San Fer and A.G.L. gangs. Sotelo was a San Fer gang member and had S and F tattoos all over his body. Suddenly, he heard three or four gunshots and saw bullets coming in his direction. He ducked and testified that he did not know who shot at him. Three .45-caliber casings were recovered at the scene. All three were fired from the same .45-caliber, Glock semiautomatic handgun recovered when Sanchez was arrested for the La Mesa Street shooting.

On July 30, 2006, Sotelo was arrested on a weapon possession charge and was interviewed by Officer Menchaca. Sotelo told the officer that he had the gun because he had been shot at several weeks earlier. He said that he recognized the shooter as an A.G.L. gang member with the moniker G-ster because Sotelo had previously beaten him up.

In seeking consolidation, the prosecutor argued that the two incidents occurred within two miles of each other, and ballistic evidence showed that the same .45-caliber, Glock semiautomatic handgun was used in both. Both involved A.G.L. gang members shooting at San Fer gang members and resulted in identical charges; attempted willful, premeditated murder and assault with a semiautomatic firearm.

Sanchez opposed the motion claiming that the two incidents involved different defenses and that having to defend against both in the same proceeding would prejudice him. Patino argued that he had nothing to do with the Sotelo shooting and that consolidating the cases would be highly prejudicial to him. The jury would assume that if Sanchez was involved in the Sotelo attempted murder, he likely also committed the La Mesa Street attempted murders in which Patino was alleged to be an aider and abettor. If the trial court was going to consolidate the Sotelo charges, Patino sought to sever his trial from Sanchezs trial.

The trial court granted the motion for consolidation, finding that the two crimes were identical and would be cross-admissible to show Sanchezs intent as well as common scheme and plan. As to Patinos request for severance, it stated that in light of the legislative preference, [and] in light that [there was] no substantial prejudice, the defendants motion for severance [was] denied.

During trial, Patino renewed the motion to sever, which was again denied. At sentencing, he moved for a new trial based in part upon improper consolidation. The trial court stated that because the jury acquitted Sanchez of the charges related to the Sotelo shooting, A fortiori with no prejudice to [Patino], the motion for new trial is denied.

B. Contention

Patino contends that the trial court erred in granting the prosecutions motion to consolidate and, alternatively, in denying his request to sever. He argues that he suffered undue prejudice when he was joined for trial with Sanchez who faced a totally unrelated premeditated attempted murder charge. Listening to the lengthy testimony regarding the Sotelo shooting surely resulted in gross unfairness amounting to a denial of due process. This contention is without merit.

C. The Peoples request to consolidate

Section 954 provides: An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . . Consolidation must be evaluated against the backdrop of the legislative preference for joint trials (People v. Sullivan (2007) 151 Cal.App.4th 524, 557; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala)) which serves the important function of promoting judicial efficiency (People v. Gray (2005) 37 Cal.4th 168, 221). Hence, the trial court has broader discretion in ruling on consolidation than on the admission of evidence. (Alcala, supra, at p. 1221.)

As indicated in section 954, charges may be consolidated under two circumstances: (1) when they are connected together in their commission, or (2) when they are of the same class of crimes. (People v. Soper (2009) 45 Cal.4th 759, 771.) Consolidation here was proper under either circumstance. The consolidated actions include offenses not only of the same class but that are identical; charges of attempted murder and assault with a semiautomatic firearm. (See Ibid. [finding proper joinder of two murder charges because not only were they of same class, they were identical].)

Additionally, the consolidated matters here were connected together in their commission. ( 954.) The cases construing this language have uniformly allowed joinder of several offenses for trial, even though they do not relate to the same transaction and were committed at different times and places and against different victims, where there is a common element of substantial importance in their commission (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted; People v. Lindsay (1964) 227 Cal.App.2d 482, 491-492; People v. Valdez (2004) 32 Cal.4th 73, 119), such as, for example, the use of a defendants home to commit the crime, or commission of several crimes against male juveniles. (People v. Leney (1989) 213 Cal.App.3d 265, 269.)

Here, the two shootings had several common element[s] of substantial importance. (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted.) They occurred within less than a week of each other in gang territory. Both involved an A.G.L. gang member shooting at perceived members of the rival San Fers gang. In both incidents, the same firearm was used, and the 13 total .45-caliber bullet casings found at the scenes of both shootings equaled the maximum number of bullets that could be held in the empty magazine of the firearm found when Sanchez was apprehended on July 1, 2006. Because the statutory criteria authorizing consolidation were met, the trial court had discretion as to whether or not to consolidate.

In determining whether there was an abuse of that discretion, we examine the record before the trial court at the time of its ruling and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong one or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161.) Appellants bore the burden at trial of making a clear showing of prejudice in order to establish that the trial court abused its discretion. (Id. at p. 160; People v. Ochoa (1998) 19 Cal.4th 353, 409.)

1. Cross-admissibility

Much of the evidence regarding the Sotelo shooting would have been cross-admissible if tried separately from the La Mesa Street shooting. Evidence of Sanchezs affiliation with the A.G.L. gang, his penchant for shooting at rival San Fer gang members, his intent to kill, the use of the same gun in both shootings and the fact that the number of bullet casings found at the scenes of both shootings collectively equaled the total number of bullets that the Glock .45-caliber gun magazine could hold, would all be relevant in the prosecution of the La Mesa Street shooting on the issues of intent, modus operandi, and gun possession, among others. Cross-admissibility dispels prejudice. (Alcala, supra, 43 Cal.4th at p. 1221.)

2. Inflammatory nature of consolidated action

The facts of the Sotelo shooting are no more inflammatory than the facts of the La Mesa Street shooting, and arguably less so. The charges related to both were the same. In the Sotelo shooting, three shots were fired at a single rival gang member, by whom Sanchez had been previously beaten. In the La Mesa Street shooting as many as 10 shots were fired, at three unarmed, nongang members and into a residence in a residential neighborhood. There were no injuries resulting from either incident.

3. Consolidating weak case with a strong case

This matter did not involve consolidating a strong case with a weak one, or two weak ones, to improve the likelihood of conviction. If anything, the Sotelo case was the weaker case. At trial, Sotelo, a gang member and truculent and unsympathetic witness, denied having seen who shot at him. That case was therefore based substantially upon statements Sotelo had previously made to Officer Menchaca. Sotelo told the officer that he had possession of a gun because he had been shot at by a member of the A.G.L. gang with the moniker G-ster a few weeks earlier. In the La Mesa Street shootings, Sanchez was caught red-handed, fleeing from the scene of the shooting in the car identified as the one from which the shooter exited. Corroborating this assessment of the relative strength of the two prosecutions, Sanchez was acquitted of the Sotelo charges and convicted of the La Mesa Street charges.

4. Charges noncapital offenses

This case does not involve a capital offense nor did consolidation render any offense a capital offense.

In light of the foregoing, we conclude that the trial court did not abuse its discretion in allowing consolidation of the Sotelo shooting with the La Mesa Street shooting.

D. Patinos request to sever

Having concluded that the trial court properly consolidated the charges against Sanchez for the Sotelo shooting with the charges against Sanchez and Patino for the La Mesa Street shooting, we next must determine whether it erred in refusing to grant Patino a separate trial from Sanchez. We conclude that it did not.

Section 1098 creates a preference for joint trials for defendants jointly charged.^[4] Whether to grant separate trials is within the trial courts broad discretion. (Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938; People v. Lamb (1962)204 Cal.App.2d 255, 264.) When defendants are charged with common crimes involving common events and victims, a classic case for a joint trial is presented. (People v. Hardy (1992) 2 Cal.4th 86, 168.) But the trial court should order separate trials in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Massie (1967) 66 Cal.2d 899, 917.) We find none of these factors applicable here.

1. Incriminating confession

Sanchez made no incriminating confessions with respect to either of the two shootings.

2. Prejudicial association

Association with a person whose behavior is far worse than the defendant seeking severance is a basis for severance. This seeks to prevent the classic [g]uilt by association. People v. Chambers (1964) 231 Cal.App.2d 23, 28.) It is a pertinent consideration where the conduct of one defendant is far more heinous than that of the other. (See, i.e., Ibid. [where one defendants conduct was far more heinous than the other and the overwhelming majority of the trial was devoted to the conduct of the more heinous offender].) The Sotelo shooting evidence did not predominate the trial. Further, nothing in Sanchezs behavior in that incident was far worse than Patinos behavior in the La Mesa Street shooting. Both involved gang shootings at rivals, and neither resulted in injury.

3. Likely confusion from evidence on multiple counts

Nothing in the record suggests that the jury would be confused by trying the separate charges against Sanchez for the Sotelo shooting with the charges against him and Patino for the La Mesa Street shooting. Appellants were jointly charged in connection with the La Mesa Street shooting. The evidence was clear that Sanchez acted alone in the Sotelo shooting, which occurred nearly a week before the La Mesa Street shooting and in a different location. Appellants acted jointly in the La Mesa Street shooting. The jurys acquittal of Sanchez of the Sotelo shooting charges while convicting appellants of the La Mesa Street shooting charges confirms that it had no difficulty distinguishing the two incidents.

4. Conflicting defenses

There were no conflicting defenses here. In the La Mesa Street shooting, appellants presented a unified defense that Sanchez got out of the car and fired a gun because he was being shot at by gang members. In connection with the Sotelo shooting, Sanchezs defense was that he was not the shooter and that Sotelos statement to the police to the contrary was contradicted by Sotelos trial testimony. These defenses are not in conflict.

5. Separate trial to defendant would give exonerating evidence

Patino argues that If Sanchez were convicted in his own trial first, it would not be unreasonable for him to testify that he acted alone in carrying out the shooting and that appellant was simply the unknowing driver. There is no support in the record for this assertion. Sanchez had no reason to step forward to exonerate his codefendant regardless of whether he was tried separately. Moreover, in light of the other evidence of Patinos involvement in the La Mesa Street shooting, there is no reason to believe that the jury would have accepted any such effort by Sanchez.

II. Sufficiency of the evidence

A. Contention

The jury found appellants guilty of attempted willful, deliberate and premeditated murder in counts 1 through 3. Appellants contend that there is insufficient evidence to support these convictions. Sanchez argues that the presence of .22-caliber bullet casings at the scene demonstrates that he got out of the car and fired shots in the direction of the victims in a knee jerk reaction to respond to shots being fired in his direction and without forming the intent to kill and or without acting willfully, deliberately and with premeditation. He claims that if he had intended to kill the victims, he would have done so when the Honda was stopped near the driveway of the Machado residence. Patino argues that even if Sanchez intended to kill the victims, there is no evidence that Patino, as an aider and abettor, intended to do so. This contention is without merit.

B. Standard of review

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) [T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.)

C. Attempted willful, deliberate and premeditated murder (counts 1-3)

1. Elements of attempted murder

Murder is the unlawful killing of a human being with malice aforethought ( 187), and is first degree murder if committed with premeditation and deliberation. ( 189.) In order to prove that appellants attempted willful, deliberate and premeditated murder, the prosecution is required to establish that the defendant engaged in a direct but ineffectual act towards the killing of another human being and committed the act with the specific intent to kill another human being unlawfully. ( 188; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.)

2. Intent to kill

Appellants argue that there is insufficient evidence that they intended to kill the victims. Rarely will the intent of a wrongdoer be proven by direct evidence for [o]ne who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Rather, circumstantial evidence will usually determine this issue.

Certain acts of aggression, by their very nature, suggest an intent to kill. (See People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill]; People v. Lashley, supra, 1 Cal.App.4th at p. 945 [shooting at point-blank range undoubtedly creates a strong inference that the killing was intentional].)

Appellants actions are probative of their intent. They made aggressive, gang-related taunts to the victims, a common precursor to an attack on rival gang members. It is reasonable to infer that Patino, an A.G.L. gang member who personally taunted the victims, was fully aware of what was going to follow. His actions confirm his awareness. He drove to the corner where he stopped the car, Sanchez got out and aimed and fired at the victims, hitting objects near them. The use of a firearm indicates intent to inflict the ultimate injury. Spraying the area where the three victims were standing with nearly a dozen bullets hitting objects close by supports this conclusion. Further, the shooting occurred in the gang territory of A.G.L.s rival gang. As the gang expert explained, a fatal attack of a rival gang member in the rivals own territory provided appellants with a motive to attempt to kill their victims.

Sanchez argues that if he had intended to kill the victims, he would have done so when they were close, rather than driving up the street and firing from a greater distance. However, as the gang expert explained, because the attack took place in rival gang territory, one can reasonably infer that the car was moved to facilitate a rapid escape if the victims or members of the rival gang were armed and responded to the attack.

3. Premeditation and deliberation

Appellants also argue that there is insufficient evidence that the shooting was premeditated and deliberate. The evidentiary sufficiency of a finding of premeditation and deliberation requires review of, among other circumstantial factors, (1) facts about how and what the defendant did prior to the attempted killing showing prior planning, (2) facts about the defendants relationship or conduct with the victim from which motive can be inferred, and (3) facts about the nature of the attempted killing from which the jury could infer that the defendant intentionally wanted to kill the victim as part of a preconceived plan to do so in a particular way for a specific reason. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)

It is reasonably inferred from the evidence that before the shooting, appellants entered rival gang territory in possession of a firearm, looking for rival gang members. In front of Machados residence, they inquired whether the victims were members of the rival San Fer gang and engaged in an aggressive verbal assault, making derogatory comments about that gang. After questioning the victims, appellants drove to the end of the block where Sanchez got out of the car carrying a handgun, walked a few steps and then peppered the area where the victims were standing with bullets, hitting a nearby gate, a trash can and a window of the Machado house. This often repeated gang scenario suggests that appellants actions were a well-choreographed, planned foray into rival territory to kill enemy gang members. There was also ample time between the verbal confrontation and the shooting to allow appellants to deliberate on what they were doing. Premeditation and deliberation do not require much time (People v. Hughes (2002) 27 Cal.4th 287, 371), for [t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. (Ibid.) Finally, [t]he lack of provocation by the victim leads to an inference that an attack was the result of a deliberate plan rather than a rash explosion of violence. (People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Miller (1990)50 Cal.3d 954, 993.)

D.Patinos aiding and abetting culpability

Patino contends that none of his convictions are supported by sufficient evidence. He argues that he can only be liable for the charged offenses as an aider and abettor. As such, he had to share Sanchezs specific intent to kill the victims, but there is no evidence he knew Sanchez possessed a weapon, intended to use it or why Patino stopped on Borden Avenue. His convictions were therefore based on mere suspicion. This contention is without merit.

All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed. (Pen. Code,  31.) A person is liable for aiding and abetting when, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, or encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime. (People v. Gibson (2001) 90 Cal.App.4th 371, 386.) The primary actor need not expressly communicate his criminal purpose to the defendant, as that purpose may be apparent from the circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)

[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that persons guilt is determined by the combined acts of all the participants as well as that persons own mens rea. If that persons mens rea is more culpable than anothers, that persons guilt may be greater even if the other might be deemed the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1122, italics added.) [O]nce it is proved that the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea. (Id at p. 1118.) When the offense is a specific intent offense, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. (Ibid.) In the case of murder, the aider and abettor must know and share the murderous intent of the actual perpetrator. (Ibid.) Whether a person is an aider and abettor may be shown by circumstantial evidence (see In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094) and is ordinarily a question of fact for the trier of fact (People v. Herrera (1970) 6 Cal.App.3d 846, 852).

There was ample evidence of Patinos participation in the charged offenses with full knowledge and intent. He, like Sanchez, was an A.G.L. gang member. He stopped his car in the middle of the street in front of the Machado residence, enemy gang territory, at 10:30 at night, to confront three individuals believed to be rival gang members. Patino fully participated in the gang callout of the victims, yelling, Where you guys from, Fuck San Fers, and claiming A.G.L. affiliation. The gang expert testified that these actions signify a readiness to fight and are often followed by violence. Patino then drove to the end of the block and stopped at the corner, waited for Sanchez to shoot and then fled with him in a high speed police chase. While presence at the scene of the crime is insufficient to establish one as an aider and abettor (People v. Luna (1956) 140 Cal.App.2d 662, 664), it is a circumstance to be considered along with the accuseds companionship and conduct before and after the offense (People v. Laster (1971) 18 Cal.App.3d 381, 388; Inre Lynette G., supra, 54 Cal.App.3d at p. 1094). Here there was more than mere presence. Patinos affiliation with Sanchez as a fellow gang member, participation in the verbal exchange with the victims, driving the Honda to the corner, stopping to allow Sanchez to get out, and then speeding away after the shooting, more than supports the inference that Patino shared Sanchezs intent to kill the victims. These facts were also sufficient to indicate that the gang shooting was a natural and probable consequence of the confrontation initiated by Patino and Sanchez with the victims. (See People v. Medina(2009) 46 Cal.4th 913, 921924.) It was reasonably anticipated that there is great potential for escalating violence in gang confrontations.

Patino argues that there was no evidence that he knew what Sanchez was going to do when he exited the car or even knew that Sanchez had a gun. But in the gang context, it was not necessary for there to have been a prior discussion of an agreement to a shooting, or for a gang member to have known a fellow gang member was in fact armed. (People v. Medina, supra, 46 Cal.4th at p. 924.)

E. Gang allegation

The jury found that appellants committed the charged offenses for the benefit of, at the direction of, or in association with a criminal street gang. Appellants contend that there is insufficient evidence to support this finding. Sanchez argues that there is insufficient evidence that the offenses were committed with the specific intent to promote, further or assist in any criminal conduct by gang members apart from the current conviction and that the gang expert was not questioned regarding this intent. Patino argues that there was no direct evidence that he was an A.G. L. gang member or was trying to become a member, as he had no gang tattoos, the gang expert had no prior contact with him, and there was no evidence he and Sanchez had any relationship other than friends or acquaintances. This contention lacks merit.

1. Benefit of, direction of or association with the gang

Section 186.22, subdivision (b)(1)^[5]provides that a person convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, (italics added) who receives a life sentence is not to be eligible for parole in less than 15 calendar years.

As previously stated, the shooting occurred in rival gang territory after appellants claimed membership in A.G.L. and disparaged the San Fer gang. The gang expert opined that a shooting under these circumstances is for the benefit of the gang because it shows that the gang is still active and powerful, aiding in recruitment. It also instills fear in people in the community, making them unwilling to report gang crime or to testify because it sends a message that the gang is active and crazy. It tells the rival gangs that the A.G.L. gang will enter their territory and take it from them. The gang experts testimony alone was sufficient to support the gang finding. [U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Rabanales (2008) 168 Cal.App.4th 494, 509-510, quoting People v. Young (2005) 34 Cal.4th 1149, 1181.)

Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 (Garcia), appellants argue that the intent to promote, further or assist in any criminal conduct by gang members, refers to an intent to do so in criminal conduct of the gang apart from the instant conviction. The Third District and our Second District Courts of Appeal have rejected Garcias interpretation of section 186.22, subdivision (b)(1). (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero).) We agree with these authorities. As Justice Epstein explained in Romero: By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. The fact that the crime was committed with other gang members, in rival gang territory, makes it fairly inferable that appellants intended to assist criminal conduct by fellow gang members.

2. Patinos gang membership

There is also ample evidence that Patino was a gang member or associate. He asked the victims where they were from and claimed A.G.L. membership. As the gang expert explained, a person who was not a gang member would not claim affiliation with the gang because to do so would open up themselves to some type of harm. Moreover, the rival gang would target him for attacking one of their members. It is also unlikely that Sanchez, an A.G.L. gang member, would allow a nongang member to participate in a gang crime because Sanchez would want someone driving who he could implicitly trust; a fellow gang member who you know . . . is going to stick it out with you . . . . The gang expert testified without objection that in his opinion Patino was an A.G.L. gang member or associate. His testimony alone is enough to sustain a jurys finding. (People v. Rabanales, supra, 168 Cal.App.4th at pp. 509-510.)

III.Failure to instruct on lesser include offense

Appellants were convicted of shooting at an inhabited dwelling. Sanchez requested an instruction on discharging a firearm with gross negligence ( 246.3) as a lesser included offense. The trial court denied the request.Sanchez contends that this was error. This contention is without merit.

In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154 quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.) This obligation has been held to include giving instructions sua sponte on lesser-included offenses when the evidence raises a question whether all of the elements of the charged offense are present (People v. Breverman, supra, at p. 154), but not when there is no evidence that the offense was less than charged. A trial court must instruct sua sponte on a lesser-included offense even if it is inconsistent with the defendants theory of the case. (People v. Breverman, supra, 19 Cal.4th at p. 159 [[t]he trial court must instruct on lesser included offenses . . . [supported by the evidence] . . . , regardless of the theories of the case proffered by the parties].)

Willful discharge of a firearm in a grossly negligent manner is a lesser included offense of shooting at an inhabited dwelling. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) Section 246 [shooting at an inhabited dwelling] proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result. Section 246.3 [grossly negligent discharge] proscribes discharging a firearm in any grossly negligent manner which presents a significant risk that personal injury or death will result. (Ramirez, supra, 45 Cal.4th at p. 986.) [S]ection 246 is violated when a defendant intentionally discharges a firearm either directly at a proscribed target (e.g., an inhabited dwelling house or occupied building) or in close proximity to the target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or person in or around it. No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required. (People v. Overman (2005) 126 Cal.App.4th 1344, 1361.) The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendants firing range. Section 246^[[6]] does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result. (Id. at p. 1362.)

Here, there was not substantial evidence that the offense was less than that charged. The shooting occurred in a residential neighborhood, bullets were aimed at the victims and the Machado residence, and a window in that residence was shattered by a bullet. Thus, discharged bullets were aimed at or fired in close proximity to a residence so as to present a danger to those inside.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

___________________, Acting P. J.

DOI TODD

___________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Sanchez was separately charged in counts 8 and 9 with the June 26, 2006 attempted murder of, and assault with a semiautomatic firearm on, Mark Sotelo (Sotelo) (Sotelo shooting). The jury acquitted him of these charges.

^[3] We do not include facts regarding the Sotelo shooting here because Sanchez was acquitted of the charges related to it. A brief statement of those facts is included in part I, post, in connection with Patinos consolidation/severance claim.

^[4] Section 1098 provides in part: When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. . . . (Italics added.)

^[5] All references to section 186.22 are to the version of that statute in effect in 2005, when the charged offenses occurred.

^[6] It appears from the courts analysis and the two statutes that this reference to section 246 was intended to refer to section 246.3.