Filed 7/28/17 P. v. Delarosa CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL ALEJANDRO DELAROSA,

Defendant and Appellant.

G053228

(Super. Ct. No. 14NF2556)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
* * *
A jury convicted Manuel Alejandro Delarosa of carrying a loaded firearm in public while an active participant in a criminal street gang (Pen. Code, § 25850, subds. (a), (c)(3); all further statutory citations are to this code, unless noted), possessing a concealed firearm while an active participant in a criminal street gang (§ 25400, subds. (a)(2), (c)(3)), street terrorism (§ 186.22, subd. (a)), resisting arrest (§ 148, subd. (a)(1)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true the enhancement allegation that Delarosa committed the first two and last of these offenses for the benefit of a gang (§ 186.22, subd. (b)(1)).
Delarosa asserts a confrontation challenge under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He contends the prosecution’s gang expert erroneously disclosed to the jury testimonial hearsay about certain gang-related incidents involving Delarosa and an associate (Jesus H.), which the expert relied on to conclude Delarosa and Jesus were gang members. Without the foundation material he asserts was improper under Sanchez, Delarosa challenges the sufficiency of the remaining evidence to support the gang enhancements and several substantive counts. Delarosa’s trial preceded Sanchez, but he declined the trial court’s express invitation to assert a confrontation challenge, which prompts his ineffective assistance of counsel claim on appeal. As we explain, in light of the properly admitted evidence Delarosa and Jesus actively participated in their gang, there is no reasonable probability of a different outcome had Delarosa objected on confrontation grounds below. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On a June evening around 8:00 p.m. in 2014, Anaheim Police Officer Peter Picone and his partner responded to a courtyard located on South Laxore Street concerning a report that six to eight gang members were congregating in the area, and that one possibly had a handgun. When the officers parked their patrol vehicle, they spotted two people, Delarosa and a juvenile, Jesus H., walking away from the courtyard. Delarosa held a folded-up T-shirt. When Picone ordered them to return, both fled on foot in different directions.
Picone pursued Delarosa, who ran to an adjacent courtyard and then to an area where two teenage girls had a picnic blanket on the ground. After Delarosa placed the folded T-shirt carefully on their blanket, Picone instructed the girls not to touch the T-shirt, called for backup, and continued to run after Delarosa. Picone located Delarosa hiding behind a parked vehicle and arrested him. The T-shirt Delarosa left on the blanket contained a chrome .380-caliber semiautomatic handgun loaded with live ammunition.
At trial, the prosecution introduced evidence showing Jesus’s and Delarosa’s membership in a criminal street gang known as Barrio Pobre.
Andrea H., Jesus H.’s sister, testified she was familiar with the Barrio Pobre gang and knew Delarosa by his moniker, “Smiley.” Jesus’s moniker is “Dopey.” She claimed Jesus was not a member of the gang because he is “a different guy now.” Andrea acknowledged that in June 2014 she told an officer that Jesus “still hangs out with guys from Barrio Pobre” and that Barrio Pobre members “would come . . . and try to hang out” with him. At that time, letters “BP” were written on their front porch pillar.
Anaheim Police Officer Jason Smith, an investigator with the gang unit, testified he attempted to contact Jesus H. at his residence after Delarosa was arrested. Jesus’s residence is in a neighborhood claimed by Barrio Pobre, and Smith noticed the porch pillar with “BP” inscribed on it, a common graffiti symbol of the Barrio Pobre gang. At the house, Smith obtained and briefly reviewed Jesus’s cell phone before its battery died, and found among the contacts a listing for a person known as “Menace,” a common moniker for gang members.
Over a defense hearsay objection, Smith testified about his conversation with Andrea H. on June 11, 2014, in which she admitted the family believed Jesus began hanging out with Barrio Pobre when he was 13 years old. Jesus had been in several fights, rival gangs wanted to attack him, and the rival gangs “tagged” graffiti on their garage because they knew Jesus was hanging out with Barrio Pobre. The court admitted this testimony under People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) as foundation for the gang expert’s opinion that Jesus was a gang member.
Smith also testified that he met Delarosa in 2010, when Delarosa was the victim of a stabbing. Delarosa admitted he was a member of the Barrio Pobre gang and his moniker was “Smiley” or “Tokes,” but he would not provide any information about the stabbing. Smith explained such reticence was common because it was against the gang “code” to disclose information to law enforcement, even when one is the victim of a violent crime.
Anaheim Police Officer Jossue Hernandez testified as the prosecution’s gang expert. He explained that for gang members, gun possession symbolizes power, engenders respect and higher status, and shows commitment to the gang. A “gang gun” is usually owned by the gang as a whole, and every gang member has access to it. Other members know who has the gun at any time because they rely on him for defense in a confrontation with rivals and must protect that person from law enforcement by giving him a chance to flee with the gun. A gang member possessing the gun also may disclose it or brag about it to demonstrate his commitment to the gang and as a source of individual and collective prestige for the gang. Gang members use guns to commit crimes and intimidate the public to earn respect. Hernandez also explained that Barrio Pobre’s primary activities included felony vandalism and felon in possession of a firearm or other illegal possession of firearms by prohibited persons.
Hernandez reviewed photographs depicting Delarosa’s tattoos, including the word “Anaheim” just below his neck and a large “BP” on his chest in which each letter was eight inches high and eight inches wide. Hernandez explained the tattoos were a significant factor in his conclusion Delarosa was a gang member because gang tattoos must be earned and reflect pride in belonging to the gang.
Hernandez also explained that witnesses are often reluctant to testify against gang members for fear of retribution, and the jury heard only briefly from the teenage picnickers, Rosa and Jane Doe, who declined to use their full names and refused to provide information about Delarosa at trial. Jane Doe had told a responding officer she recognized Delarosa but did not want to identify him.
Hernandez testified he was familiar with Jesus and Delarosa from conversations with other investigators and from reading police reports, field interview (FI) cards, and Street Terrorism Enforcement and Prevention Act (STEP) notices. He explained generally that those sources provided foundation for his opinion that individuals engaging in the conduct described in the sources were active gang members, and he also described many of the specific contacts documented in those sources that other law enforcement officers had with Jesus and Delarosa (see fn. 1, infra). When presented with a hypothetical involving two gang members and mirroring the facts of the crimes here, he opined that the crimes were committed in association with and for the benefit of the Barrio Pobre gang.
After the jury found Delarosa guilty as charged, the trial court sentenced him to prison for a total term of five years and eight months.
II
DISCUSSION
To the extent each required proof Delarosa was a gang member or that both he and Jesus were gang members, Delarosa challenges the sufficiency of the evidence to support his conviction for the active gang member firearm and ammunition possession offenses (§§ 25400, subds. (a)(2), (c)(3); 25850, subds. (a), (c)(3)), his conviction for active participation in a criminal street gang (§ 186.22, subd. (a)), and the jury’s true finding on the gang enhancement (§ 186.22, subd. (b)) on several counts.
Specifically, the active gang member firearm and ammunition possession offenses each include as an element that “the person is an active participant in a criminal street gang.” (§§ 25400, subd. (c)(3); 25850, subd. (c)(3).) Accordingly, the prosecution was required to prove Delarosa’s active gang participation to satisfy this element. As the Supreme Court has explained, active participation in a gang requires “involvement . . . that is more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.)
Similarly, the Supreme Court has explained that the substantive gang offense (§ 186.22, subd. (a)) requires proof that two or more individuals who commit an underlying offense are both gang members because the statute punishes the “commission of criminal acts done collectively with gang members.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1139, second italics and underlining added.) Consequently, the prosecutor had to prove both Delarosa and Jesus were active gang members to convict Delarosa of the substantive gang offense. (See id. at p. 1132 [“plain meaning of section 186.22(a) requires that [the underlying] felonious criminal conduct be committed by at least two gang members”].)
In contrast, the disjunctive terms of the gang enhancement apply to felonies “committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .” (§ 186.22, subd. (b), italics added.) Thus, committing a crime with other gang members is not a necessary element of the enhancement. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332 (Martinez); see People v. Loeun (1997) 17 Cal.4th 1, 9 [use of disjunctive “or” indicates legislative intent to designate alternative ways to satisfy statutory requirements].) Nevertheless, proof that a defendant committed an offense “in association with” a fellow gang member or members is sufficient to prove the enhancement (Martinez, at p. 1332) and where, as here, the evidence establishes the association prong of the enhancement, we need not evaluate whether the record also supports the other prongs. (Ibid.; accord, e.g., People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 (Ochoa) [evidence sufficient for gang enhancement when the defendant commits offense with a fellow gang member].)
Delarosa relies on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) and similar cases for the proposition that the mere presence of two gang members together does not establish they committed the offense in association with one another as gang members. But here, unlike in Ramon, the jury reasonably could infer Delarosa’s firearm possession offense was gang-related because it was one of his gang’s primary activities and committed in Barrio Pobre territory. Moreover, the jury reasonably could infer Jesus knew of the gun and aided and abetted Delarosa’s possession because the gang expert explained gang members must disclose its presence to each other out of respect, for bragging rights, for safety in case of attack, and to safeguard the gun as a prized mutual possession, including by creating a diversion when law enforcement arrives. Additionally, Ramon considered only the specific intent prong of the gang enhancement, not the association prong, and we therefore do not find it persusasive. (Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7; see also People v. Albillar (2010) 51 Cal.4th 47, 61-62 [association prong established where “their common gang membership ensured that they could rely on each other’s cooperation” in committing offense].)
Delarosa challenges the sufficiency of the evidence concerning whether he and Jesus were gang members. His challenge turns on his claim that Sanchez applies retroactively. Absent evidence that Delarosa claims was inadmissible under Sanchez, Delarosa contends the remaining evidence does not support the conclusion he and Jesus belonged to Barrio Pobre, and therefore his conviction and enhanced punishment for offenses based on their asserted gang affiliation must be reversed. Delarosa’s trial ended with the jury’s guilty verdicts and true enhancement findings in April 2015, while Sanchez was not decided until June 30, 2016. (Sanchez, supra, 63 Cal.4th 665.)
The parties debate whether Sanchez applies retroactively, but we need not resolve this issue. The Attorney General acknowledges that high court opinions ordinarily apply to all cases not yet final but, citing People v. Guerra (1984) 37 Cal.3d 385, 399-402, argues prospective-only application is appropriate when a decision announces a new rule contrary to prior case law and the new rule will not substantially enhance the fact-finding process. The Attorney General contends, “The new evidentiary rule in Sanchez fits into that category.” To the contrary, Delarosa argues Sanchez did not establish a new state law rule of evidence, but only “clarified the rule that case-specific hearsay is inadmissible even if offered as the basis for an expert’s opinion,” thus “‘restor[ing] the traditional distinction between an expert’s testimony regarding background information and case-specific facts.’” (Quoting Sanchez, supra, 63 Cal.4th at p. 679.) Alternatively, Delarosa also argues Sanchez’s federal “constitutional aspect . . . must be retroactive to all pending cases not yet final on appeal because it did not create a new rule, rather it applied the rule regarding the admissibility of hearsay evidence over a Confrontation Clause objection as announced in” Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
We need not resolve the parties’ retroactivity dispute because, even assuming Sanchez applies to preclude much of the prosecution’s evidence that Jesus and Sanchez belonged to a gang (see fn. 1, supra), ample remaining evidence demonstrated their active gang participation, and therefore any error was harmless.
Sanchez overruled Gardeley, supra, 14 Cal.4th 605, which had held that foundation material for a gang expert’s opinion consisting of out-of-court statements made by gang members or other individuals does not constitute hearsay because those statements are not offered for their truth. (See Gardeley, at p. 619; but see People v. Hill (2011) 191 Cal.App.4th 1104, 1127 (Hill) [concluding such statements are necessarily offered for their truth, but finding Gardeley binding].) Statements not offered for their truth, i.e., nonhearsay, do not trigger a defendant’s right of confrontation. (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
Sanchez disapproved Gardeley to the extent it allowed an expert to relate “case-specific” hearsay statements to the jury under the guise of foundation for the expert’s opinion. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) “Case-specific” facts concern “the particular events and participants alleged to have been involved in the case being tried” (id. at p. 676), as opposed to an expert’s “general knowledge in his field of expertise” (ibid.). In Sanchez, the prosecution’s gang expert opined the defendant was an active member of a criminal street gang and based his opinion on various out-of-court statements concerning the defendant’s alleged gang ties recited in police reports, a STEP notice, and an FI card. (Id. at pp. 671-673.) The expert relayed to the jury the circumstances and statements documented by nontestifying police officers in each of those sources to bolster his opinion the defendant was an active gang member. (Ibid.)
Overruling Gardeley, the Sanchez court explained: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686.) Consequently, Sanchez also held: “If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Ibid., original italics.) Sanchez explained generally that “[w]hen the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, at p. 694.)
Delarosa argues that the statements and circumstances documented by numerous nontestifying officers (see fn. 1, supra) in police reports, STEP notices, and FI cards concerning specific instances of gang-related conduct involving Jesus and Delarosa — and which Officer Hernandez relayed to the jury — constituted testimonial hearsay contrary to the prohibition against such evidence in Crawford and Sanchez. It is unclear whether the underlying conduct in several of these contacts involved criminal activity that would suggest statements made to the officers were testimonial. For example, some of the documented contacts consist simply of Jesus or Delarosa admitting their Barrio Pobre affiliation, without a description of the circumstances in which either made the statement. But mere membership in a gang is not itself a crime, so it is not clear from the bare admission that such statements are testimonial. (See Sanchez, supra, 63 Cal.4th at p. 694 [observing that statements concerning completed crimes are usually testimonial under Crawford].) On the other hand, as Sanchez also observed, the officer issuing a STEP notice signs the portion retained for law enforcement records under penalty of perjury. (Id. at p. 696.) Therefore, while it may not be “th[e] defendant’s primary purpose in making the statements . . . to establish facts to be later used against him or his companions at trial,” “it seems clear the officer recorded the information for that purpose.” (Ibid., original italics.)
Nevertheless, even assuming the information Officer Hernandez relayed to the jury concerning Jesus’s and Delarosa’s gang affiliation from the various police reports, STEP notices, and FI cards constituted testimonial hearsay, a different result is not reasonably probable had Delarosa’s counsel objected on confrontation grounds. The federal standard for harmless error ordinarily governs the asserted invasion of constitutional rights, including violations of a defendant’s right of confrontation (Sanchez, supra, 63 Cal.4th at p. 699.) That standard requires reversal unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) But as the United States Supreme Court has observed, “The right of confrontation may, of course, be waived, including by failure to object to the offending evidence.” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 (Melendez-Diaz.) The Attorney General thus asserts Delarosa forfeited his direct challenge on confrontation grounds to the gang affiliation evidence he now claims should not have been admitted. We agree.
Although Delarosa’s trial predated Sanchez, the trial court expressly advised counsel during a pretrial hearing regarding prospective gang expert testimony that if he had “any concerns about that evidence or any Crawford issues or things of that nature, [he should] bring those up as soon as possible.” The trial court may have been aware that the Supreme Court had granted review in Sanchez months earlier to consider Gardeley’s continuing vitality after Hill and other cases questioned its rationale; the court also presumably knew Melendez-Diaz had long required a confrontation objection to avoid forfeiture. The purpose of requiring a specific objection is to “alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” (People v. Williams (1988) 44 Cal.3d 883, 906, italics added.) A hearsay objection does not preserve a confrontation claim under the federal Constitution. (People v. Carter (2003) 30 Cal.4th 1166, 1196, fn. 6.)
Withholding an objection is unfair to the trial court and opposing counsel precisely because neither is able to address the contention. In particular, a prosecutor faced with a confrontation objection may choose to expand the gang evidence with “independent competent proof” of the challenged basis for the expert’s opinions. (Sanchez, supra, 63 Cal.4th at p. 684 [“Alternatively, the evidence can be admitted through an appropriate witness”].) For instance, the prosecution may choose to call in addition to its gang expert the officer or officers who authored the police report or issued the STEP notice or FI card recording the defendant’s admission of his or her gang affiliation. In such circumstances, there is no confrontation violation because the officer who recorded the alleged admission is available for cross-examination and, of course, the defendant’s own statement admitting gang affiliation falls under the hearsay exception for a party admission. (Evid. Code, § 1220.)
In light of the trial court’s express invitation, which Delarosa ignored, we conclude he forfeited his confrontation objection. We therefore turn to his argument asserting ineffective assistance of counsel (IAC) in his trial attorney’s failure to object. To prevail on an IAC claim, the defendant must show counsel’s performance was deficient under an objective standard of professional responsibility, and that it is reasonably probable he would have received a more favorable result at trial if counsel had not erred. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) If no prejudice is shown, the reviewing court need not scrutinize counsel’s failure to object for any deficiency. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Here, Delarosa does not establish a reasonable probability of a different result if he had objected and obtained the exclusion of the gang-affiliation evidence he now challenges on confrontation grounds. Simply put, because Jesus’s and Delarosa’s own conduct and admissions in properly admitted testimony marked them as gang members, we have no difficulty concluding the jury would have reached the same verdicts apart from the additional information in footnote 1, supra, concerning their gang ties in police reports, STEP notices, and FI cards.
First, as Sanchez explained, while an expert may not relay to the jury the contents of those sources if a confrontation objection is sustained, “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685, original italics.) True, as Sanchez also observed, “merely telling the jury the expert relied on . . . information that the expert only generally describes may do less to bolster the weight of the opinion” than conveying for its truth the underlying testimonial hearsay. (Id. at p. 686.) But that does not preclude the expert’s opinion. Accordingly, the gang expert’s opinion by itself supports the jury’s conclusion Jesus and Delarosa were both gang members. And here there was much more.
Specifically, Officer Smith testified Delarosa admitted he was a Barrio Pobre member and that his moniker was Smiley or Tokes. Delarosa made the admissions when Smith contacted him about stab wounds Delarosa suffered, but Delarosa would not discuss the circumstances or disclose who stabbed him, which Smith explained was common for gang members.
Additionally, Jesus’s sister, Andrea H., testified she knew Delarosa by his moniker, “Smiley,” and that Barrio Pobre members sought out her brother to “hang out” with him in June 2014, when the present offense occurred. Consequently, the jury could infer Delarosa was among those gang members and still associated with Barrio Pobre since he continued to use his moniker.
Officer Hernandez testified that Delarosa’s tattoos, including the word “Anaheim” and a large “BP” emblazoned on his chest, must be earned by gang members and therefore reflected his active participation in the gang. He also explained that witnesses are often reluctant to testify against gang members for fear of retribution, and the jury heard only briefly from Rosa and Jane Doe, who declined to use their full names and refused to provide information about Delarosa; indeed, Jane Doe had told a responding officer she recognized Delarosa but did not want to identify him. Hernandez also explained that guns are important tools gang members use to gain and maintain status, and that Barrio Pobre’s primary activities included Delarosa’s illegal firearm possession offense.
As for Jesus, several factors supported the conclusion he belonged to Barrio Pobre, including his sister’s testimony that Barrio Pobre members sought him out and congregated at his home where Smith found “BP” markings on his porch, a residence in territory claimed by the gang. Additionally, Smith retrieved from Jesus’s cell phone contact information for “Menace,” a common gang moniker.
Andrea also told Smith in an interview that Jesus “appeared to be” still involved in gang activity, including several fights in which rival gangs wanted to “get” him and rival gangs continued to tag his garage with graffiti because they knew he was associating with Barrio Pobre. She admitted Jesus had been associating with Barrio Pobre members since he was 13 years old. While Andrea did not relate these facts in her testimony and the trial court admitted them only as basis evidence for the gang expert’s opinion testimony, and not for their truth, Sanchez explained that juries inevitably rely on such statements for their truth. Accordingly, those statements supported the jury’s conclusion Jesus was a gang member. Had Delarosa asserted a confrontation violation, his objection would have failed because the violation occurs when the hearsay declarant is unavailable to testify. (Sanchez, supra, 63 Cal.4th at p. 686.) But Andrea was available at trial, so a Crawford objection would have resulted in her recall for cross-examination and full admission of her interview with Smith under the hearsay exception for inconsistent statements (Evid. Code, § 1235), since she testified Jesus was not a Barrio Pobre member. Furthermore, Hernandez also properly testified he was familiar with Jesus from reading reports and talking to other officers, and therefore his opinion also supported the jury’s verdicts.
In light of the foregoing, properly admitted, pervasive and persuasive evidence, it is unlikely the jury would have reached any other conclusion than that Jesus and Delarosa were active Barrio Pobre gang members. Had Delarosa objected on confrontation rather than only hearsay grounds to the other foundation evidence supporting Hernandez’s opinion (see fn. 1, supra), we are confident the result would not have been any different. Delarosa’s challenge on confrontation grounds to the sufficiency of the evidence for the substantive counts and enhancements requiring proof of their gang membership therefore fails.
Separately, Delarosa also challenges the sufficiency of the evidence to support the active gang participation count and the active gang member firearm and ammunition possession offenses because the prosecution did not establish Jesus knew, apart from any inadmissible hearsay evidence, that Delarosa had a gun and aided and abetted his possession of it. In other words, Delarosa asserts Jesus did not participate in the offense, and therefore Delarosa did not “promote[], further[], or assist[] in felonious criminal conduct by members of the gang.” (§ 186.22, subd. (a), italics added; see also §§ 25850, subd. (c)(3), 25400, subd. (c)(3) [requiring proof of § 186.22(a) elements as predicate for felony firearm and ammunition possession].) But as noted above in relation to the gang enhancement, the jury reasonably could infer Jesus knew of the gun and aided and abetted Delarosa’s possession because the gang expert explained gang members share possession of the gun as a common gang weapon and therefore the individual holding the gun must disclose it to the others out of respect. Specifically, gang members must know who possesses the gun in case they confront rival gangs and to shield it from law enforcement so the gang retains possession of the weapon. Additionally, Jesus’s flight showed consciousness of guilt. (People v. Beltran (2013) 56 Cal.4th 935, 957.) We may not second-guess the jury’s determination. (See People v. Sanchez (2003) 113 Cal.App.4th 325, 330 [jury’s exclusive province to weigh evidence and therefore appellant “bears an enormous burden” in challenging the sufficiency of the evidence].)
III
DISPOSITION
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.