P. v. Hernandez

Filed 3/28/07 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On April 5, 2005, an information was filed in the Superior Court of Tulare County charging appellant Gabriel Hernandez and codefendant Ernesto Cardenas with count I, second degree robbery (Pen. Code,^[1] 211); count II, possession of a deadly weapon ( 12020, subd. (a)(1)); and count III, active participation in a criminal street gang ( 186.22, subd. (a)). As to counts I and II, it was alleged the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). As to all counts, it was alleged that a principal was armed with a firearm ( 12022, subd. (a)(1)). Appellant and Cardenas pleaded not guilty and denied the special allegations.

On July 12, 2005, the joint jury trial for appellant and Cardenas began. On July 28, 2005, appellant and Cardenas were convicted as charged and all special allegations were found true.

On August 25, 2005, the court sentenced appellant and Cardenas to aggregate terms of 14 years in prison: as to count I, the midterm of three years, plus consecutive terms of 10 years for the gang enhancement and one year for the arming enhancement. The court stayed the terms imposed for the remaining counts and enhancements pursuant to section 654.

On September 26, 2005, appellant (F048910) and Cardenas (F048935) filed timely notices of appeal. These cases have been joined for purposes of argument, but have not been consolidated.

FACTS

Around 3:20 p.m. on Tuesday, February 8, 2005, Theresa Rodriguez (Rodriguez) was taking her usual walk near her house, in a rural area on Lindmore Street in Lindsay. She was walking westbound on the right shoulder of the road, and carrying her purse. As she approached Strathmore Road, she noticed a black sports utility vehicle (SUV) pass on her left side. The black SUV suddenly cut in front of her and stopped at about a 45-degree angle to block her path, within a few feet of her, and the engine was turned off.

Rodriguez testified she turned and faced the SUV, and saw four people in the vehicle. The drivers seat, front passenger seat, and right rear passenger seat were occupied by Hispanic males, and a Hispanic female was sitting in the left rear passenger seat. The right front and rear passenger windows were rolled down. The man in the right front passenger seat pointed a shotgun directly at her. Rodriguez thought it was a double-barreled, sawed-off shotgun. A black sweatshirt or cloth covered the trigger and stock, but the barrel rested on the open window frame.

Rodriguez had never seen these people before,^[2]but she looked through the two open windows and could see the occupants bodies from their chests to the heads. She testified that she looked over their facial features and was able to describe them. Rodriguez explained that she was a certified childbirth coach, and was used to being close to her patients and examining their faces for masculine or feminine features. I stared at each individual. I saw each individual. The time that I was standing there, I took a look at each individual. I had eye contact with them.

Rodriguez testified the Hispanic male in the right rear passenger seat had a red bandana tied around the lower portion of his face, covering his chin, mouth, and part of his nose. He was wearing a grey sweatshirt, with either a black hood or a black sports cap on his head. She could not see the style of his hair, but she could still see his hair color and his facial features. He was 20 to 21 years old, with black hair and brown eyes. Rodriguez testified that despite the bandana, she could see this mans eyes, eyeline, eyebrows, the definition of his facial features, his forehead, his eye structure, and the definition of his cheek bone structure. This man stared at Rodriguez in an intimidating manner.

Rodriguez testified the driver was not wearing a bandana or any facial covering, and he did not speak to her. Rodriguez described the driver as a Hispanic male who was 21 years old, with rough, harsh, masculine features, and a rough, rigid nose which was prominent in some way. He had broader shoulders and a full face, and not a baby face. The drivers frame was medium, about 150 to 160 pounds. She believed he had tightly braided cornrows on the top of his head.

Rodriguez testified the female in the left rear passenger seat looked at her and gave me a good stare. Rodriguez looked right back at her and they made eye contact. The female sat back in her seat, hiding herself in my view, and tried to avoid further eye contact with Rodriguez.

Rodriguez testified the man in the right front passenger seat held the shotgun at her. His face was not covered. He was good looking, with refined features and a youthful, baby face.

Rodriguez testified she was shocked and frightened by the encounter and shouted for help. Rodriguez turned around and started to run toward the rear of the SUV. She got about three yards away when she was confronted by the man from the front passenger seat who had been holding the shotgun. He ran behind the SUV and confronted her, but he was no longer holding the shotgun. This man was the only person who got out of the SUV. The man and Rodriguez stood behind the SUV and the man shouted, in an aggressive and intimidating tone, Give me your shit. Rodriguez testified this man was wearing a sweatshirt and new black jeans. Rodriguez threw her purse at the man, and he grabbed it and ran back to the SUV. Rodriguez testified her purse contained her identification, checkbook, and a wallet with a $5 bill.

Rodriguez testified that she stayed behind the SUV for a few moments and looked through the vehicles rear hatch window, and could see the driver and the man in the front passenger seat talk to each other. She checked the make and model of the vehicle and determined it was a black four-door Chevrolet Trailblazer, with a partial license plate WYSP5 or WXYXP5. She thought there was an X somewhere in the sequence. Rodriguez could not remember whether the rear window was tinted, but testified the sun shone through the rear hatch window so that she could see the occupants heads. The black SUV drove away and headed west. Rodriguez believed the entire encounter lasted any where from two or three minutes, to seven or eight minutes.

Rodriguez ran into the street and shouted for help, and someone stopped and drove her home. Rodriguez called 911 from her house, and reported the suspects were three Hispanic males between the ages of 19 and 21 years, and one Hispanic female. She told the 911 operator that the license plate was 4WYP25.

Rodriguezs Statement to Deputy Holt

Tulare County Sheriffs Deputy Holt received the robbery dispatch around 3:26 p.m. and responded to Rodriguezs house. According to Deputy Holt, Rodriguez said she was taking her regular walk when a vehicle blocked her path, and a subject in the front passenger seat pointed a make shift rifle at her and demanded her things. The subject got out of the vehicle and confronted her, again demanded her property, and she gave up her purse. Rodriguez said there were three people in the car with red bandanas, and the person in the right rear passenger seat was wearing a gray sweatshirt. She said the driver was in dark clothing, with a red bandana, and was about the same height as the gunman. Rodriguez described the suspects eyes, forehead, cheeks, and some of their clothes.

Rodriguez described the weapon as a makeshift gun. Deputy Holt asked her to compare the barrel size to the 12-gauge, single barrel, pump action shotgun in his patrol car. Rodriguez said the weapon looked like his shotgun but had a shorter barrel.

At trial, Rodiguez testified that when she spoke to Deputy Holt at her house, she just gave him vague generalities about the incident and the assailants, rather than specific details, so that he had something to go by in apprehending the suspects and identifying the vehicle.

The Investigation

Deputy Ron Smith also received the robbery dispatch and the description of the suspects vehicle as a black Chevrolet Trailblazer with a partial license plate number, and drove around the area to look for the SUV. Around 3:30 p.m., Deputy Smith found a black Chevrolet Trailblazer parked in the driveway of a residence on Road 216 in Tonyville, an area about five to six miles north of Lindsay. The SUVs license plate was 4YWP925.^[3] There were three abandoned cars also parked in front of the house.

The residents of the house were Guadalupe Cardenas (Mrs. Cardenas) and her family. Deputy Smith drove past the house, turned around, and parked across the street. As he approached the house, he saw Mrs. Cardenas and her daughter-in-law, Amy Tristan, standing on the front porch. Deputy Smith asked Mrs. Cardenas about the vehicle, and Tristan translated for her. Mrs. Cardenas said that an unknown male had just parked the black SUV in the driveway, another car arrived, and that person immediately left in the other car.

Deputy Smith received permission from Mrs. Cardenas to search the house. Deputy Elium, his partner, stood at the front door and maintained observation of the SUV, while Deputy Smith went into the house. Smith found Jose, Mrs. Cardenass son and Amys husband, sleeping in a bedroom. Smith checked the other bedroom and found Mrs. Cardenass other son, codefendant Ernesto Cardenas, in the bedroom with appellant Gabriel Hernandez and two teenage girls, 14-year old A.P. and 15 year-old C.R. No one possessed any weapons or contraband. There were also several children in the house.

Deputy Smith directed all the occupants into the living room in order to maintain control. Deputy Elium advised Smith that someone had just run away from the rear of the house and jumped over the backyard fence. Smith directed Elium not to pursue that individual because they did not have any backup officers to maintain control over the SUV and the other occupants of the house.

Detective Genaro Pinon responded to the area and drove around to look for the fleeing suspect but did not find anyone. Detective Pinon was the first officer to arrive at the house to assist the deputies, and found Deputies Smith and Elium inside with the occupants. Cardenas was uncooperative and Pinon escorted him outside and restrained him on the ground, because the officers were outnumbered and the armed suspect was still at large.

Detective Pinon spoke to Mrs. Cardenas in Spanish, again received permission to search the house, and asked about the people in the house. Mrs. Cardenas said she was in the kitchen when Cardenas arrived with the two girls and asked if they could use the bathroom. After the girls used the bathroom, they asked if they could stick around for a little bit. Mrs. Cardenas stated the black SUV was not there before they arrived, but she noticed it was there after they arrived. Mrs. Cardenas never said that Cardenas and appellant had been with her all day. Amy Tristan said she had been in the bedroom with her husband, Jose. When she left the bedroom, she saw the two girls sitting on the couch but she did not know them or how they got there. She did not know if Cardenas or appellant had been in the house before she saw the two girls.

The officers searched the house, the black SUV, and the abandoned cars, and did not find any weapons, contraband, or Rodriguezs possessions. After the backup officers arrived, Deputy Smith walked through the backyard and found a make shift clubhouse or shed, located near the fence the suspect jumped over. Smith found a shotgun hidden under the sheds uneven wooden floor. The shotgun was wrapped in a red and gray Pendleton-type shirt, and a red bandana was tied around the handle and trigger guard. The weapon had been made into a pistol-grip shotgun, with a slide mechanism for racking the bullets and casings. The barrel was 16 inches long. There was no dust or cobwebs around the shotgun. The officers could not detect any fresh footprints in the area.

Deputy Smith also walked through an olive grove about 200 yards from the house. He found an old wooden door with shotgun rounds fired through it, obviously used as a target, with shotgun shell casings on the ground around it. The shells fit the shotgun found in the shed.

The In-field Showup

In the meantime, Deputy Holt was still at Rodriguezs house, where he interviewed her for about 15 to 20 minutes. She was nervous and upset, but she was not hysterical. They were sitting in her kitchen, and Holt advised dispatch about her descriptions over his portable radio. Holts supervisor responded over the radio that another deputy found the vehicle and one individual fled, and asked Holt to transport Rodriguez to the scene for an in-field showup. Holt testified his portable radio was positioned so that Rodriguez could hear the information provided by his supervisor, that a vehicle fitting the description had been found and one suspect fled.

Deputy Holt testified he drove Rodriguez to the suspects location. Before they arrived there, he advised her of the photographic lineup, the field lineup instructions, that just because she was being shown some subjects that we had detained, did not mean that they had necessarily committed a crime or that they were the individuals that were responsible for this one, and told her that she was not required to make an identification, but if she did recognize somebody in the group to point them out to me and describe them. Holt testified he never referred to the subjects as suspects.

Deputy Holt testified that as he drove past the subjects, they were standing on the drivers side of his patrol car, while Rodriguez was sitting in the front passenger seat. The subjects were about 10 to 12 feet away from Holts patrol car, and there was nothing to impede Rodriguezs view of them. Detective Pinon and the other officers stood by the subjects as Holt drove by. Holt believed the subjects were not in handcuffs.

Deputy Holt testified Rodriguez identified Cardenas, appellant, and one of the girls as being involved in the robbery, but she did not recognize the other girl. Holt testified Cardenas was wearing a black shirt and black pants during the in-field showup. Holt thought Cardenass hair was in long braids. Holt examined a photograph of Cardenas, taken that day, and conceded he did not have braids or corn rows. Holt testified appellant was wearing a white T-shirt and black pants.

At trial, Rodriguez testified that while they were still at her house, Deputy Holt advised her that they had apprehended suspects and he was going to drive her to a location in Tonyville to identify them. Holt asked if she was ready to go, and Rodriguez asked for a moment to collect herself. Rodriguez testified Holt did not say the individuals were the persons who were involved in the crime. He gave me instructions. He gave me a form. He read it to me, and he told me these suspects or these subjects may or may not be those individuals involved. And he had me signing his form.

Q. ... You said a couple times you were told to identify the subjects. Does that mean [Holt] was telling you, These are the guys. Point them out?

[RODRIGUEZ]. No, not in that manner.

Q. What do you mean when you say you were told to identify the suspects?

A. He asked me to he gave me a form and he said, You are not in any obligation to identify the subjects apprehended. These may or may not be the individuals, and he clarified that to me. I signed the form, and then he asked me to go ahead and identify them.

Rodriguez testified that Deputy Holt asked if she could identify the subjects apprehended. Holt said she would remain in the patrol car, and he would drive by the suspects and ask if she could identify them.

Rodriguez testified that during the drive, Holt did not put any pressure on her to identify anyone. I was told that this was the order and this is what was going to be done, and I was given clear instructions and I followed those instructions. I was not told anything further then that, then to identify the suspects. Rodriguez testified her sister was also in the patrol car and [s]he just said, Theresa, you know you can do this, and just kind of coaching me. And said, Im right here with you.

Rodriguez testified that Deputy Holt drove by a house and she immediately recognized the black Chevrolet SUV parked in the driveway, and told Holt that was the vehicle which pulled in front of her. Rodriguez saw four individuals standing outside the housetwo men and two women. Rodriguez testified Holt drove her by the individuals two times and asked her to look at them. Rodriguez identified Cardenas as the driver, appellant as the male passenger in the right rear seat, and one of the teenage girls as the female passenger in the left rear seat. Rodriguez did not recognize the second teenage girl. Rodriguez was not informed whether these individuals had been found in the SUV, or whether there were more people in the house.

Rodriguez testified she recognized Cardenas as the driver because he had kind of tightly braided, kind of fashioned cornrows. She had only seen tightly braided cornrows on top of his head during the robbery, but now saw braided strands which fell to his neck. She also recognized the medium to dark tone of his complexion, and his rigid nose, but nothing different than when I had first seen him, other than the cornrows. She testified that she had no doubt about her identification of Cardenas as the driver and appellant as the man in the right rear passenger seat.

Rodriguez testified that at some point that day, Deputy Holt said another individual fled on foot, and she told Holt that she knew in [her] heart that person must have been the gunman.

Rodriguez was not shown a gun during the in-field showup. On February 9, 2005, Detective Blass showed Rodriguez the pistol-grip shotgun that was recovered from the shed. Rodriguez said the shotgun barrel looked similar to the weapon that was aimed at her.

Cardenass Statement

Cardenas and appellant were arrested at the house. Cardenas was 19 years old, and appellant was 21 years old. Both girls were also arrested. Detective Pinon testified Cardenass hair was not in cornrows at the time he was arrested.

About 20 minutes after the arrest, Detective Pinon conducted a tape-recorded interview with Cardenas at the Porterville substation. Pinon advised Cardenas of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and asked if he knew anything about the robbery. Cardenas was quiet, shrugged his shoulders, and said he did not know anything about it. Pinon asked about the black Trailblazer and Cardenas said he had no knowledge about it. Pinon advised Cardenas that he had been positively identified, and Cardenas did not respond. Pinon testified that he told Cardenas that since he didnt say anything or give me his side of the story, I was going to turn the tape off. Cardenas did not respond and Pinon turned off the tape recorder.

Detective Pinon testified the tape recorder was turned off for about 13 minutes. During that time, Cardenas sat in the chair and was really thinking about what he wanted to tell me. Pinon denied that he threatened to arrest Cardenass mother if he did not talk. Instead, Pinon said someone was going to jail and he was going to talk to Cardenass mother again about the black SUV and gun found at her house. Pinon testified that Cardenas just sat there and thought about what he was gonna say, and then asked Pinon to turn on the tape recorder because he wanted to give a statement.

Detective Pinon turned on the recorder and again advised Cardenas of the Miranda warnings. According to the transcript, the following exchange occurred:

[Pinon]: Okay. Tell me what happened today. Well start from the very ... beginning. How did you get the car? Howd you get that Trailblazer? The black one that was parked in your driveway?

[Cardenas]: Mm-hmm.

[Pinon]: Whered you get that from?

[Cardenas]: (unintelligible)

[Pinon]: Whered you get it from? Howd it get there?

[Cardenas]: I dont know. But its like, you know ... (pause) (sniffs) (unintelligible) I was just driving it. (Italics added.)

Detective Pinon asked where he got the car, and Cardenas said he didnt know. Pinon asked from where he started driving it, and Cardenas gave unintelligible answers. Pinon said he would terminate the interview if Cardenas just wasted his time, and he was trying to help Cardenas. Cardenas replied, I just happened to be driving ... that truck. He refused to say who was with him: Im not gonna mention no names. Pinon again said he was terminating the interview and would not play games with Cardenas, and mentioned that everyone else was talking. Pinon asked who had the shotgun, what happened when they pulled in front of the woman, and who told him to stop there. Pinon added that Cardenas had been positively identified, and that was why he was arrested. Cardenas paused and then said: It just happened.

[Pinon]: What happened?

[Cardenas]: Everything. Whatever happened.

Pinon asked what happened to the womans purse and if Cardenas would help him find it. Cardenas said, I am.

[Pinon]: Youre gonna help me find the purse?

[Cardenas]: Well, I dont know.

[Pinon]: What--

[Cardenas]: To tell you the truth.

[Pinon]: --what dont you know? You know you pulled in front of her, right? Do you remember pulling in front of that girl on the side of the road?

[Cardenas]: (sighs) (pause) I dont know, just ... (unintelligible)

[Pinon]: Okay.

[Cardenas]: My mom had nothing to do with it.

As the interview continued, Detective Pinon asked what happened to the gun. Cardenas replied that if Pinon was saying that he was driving, then [h]ow could I have a gun [a]t the same time. Pinon asked Cardenas to be honest with him, and he was not going to sit there and watch him cry. Cardenas said he wanted to stop the interview. Pinon testified he terminated the interview because Cardenas kept crying and Pinon could not understand what he was saying.

Additional Prosecution Evidence

Detective Pinon testified Cardenas was not wearing any gang clothing at the time of his arrest. Cardenas did not have any tattoos. Pinon took photographs of appellants tattoos, which were 559 and X-4 on his fingers, and L for Lindsay on his wrist. Appellant also had a tattoo on his arm which said Lindse.

Deputy Smith testified that while he was at Mrs. Cardenass house, Parole Officer Gary Paden arrived in the neighborhood and advised him that Fernando Villareal, a parolee, lived on the same street. Detective Pinon determined that Villareal was approximately 40 years old. The officers investigated Julian Little Jay Silvas as a possible suspect, but the officers were unable to locate him. Rodriguez looked at Silvass picture in a photographic lineup but she did not identify him as one of the SUVs occupants.

The officers checked the area where Rodriguez was confronted. There were numerous tire tracks and footprints from heavy traffic in the area but there were no leads.

The black SUV contained partial palm prints on the drivers side and front passenger doors. Cardenas, appellant, and Julian Silvas were excluded as sources for those prints. The prints were never matched to anyone. There were no usable prints lifted from the shotgun shells. The SUVs rear hatchback window was tinted. The SUV did not contain any contraband. The officers never recovered Rodriguezs purse or its contents.

Jose Cardenas (Jose), Cardenass brother, was married to Amy Tristan, and they lived with his mother, Mrs. Cardenas, and his brother, Ernesto Cardenas. Jose testified that he and his wife left the house in the morning, and Cardenas was in his bedroom. They returned around 2:00 p.m., and he was still at home. Around 2:20 p.m., Jose took a shower, and then went into his bedroom and tried to sleep before he left for work. Cardenas was still in the house after Jose finished his shower and went into his bedroom. Jose woke up when he heard a police officer screaming from the back of the house that someone had jumped the fence, and another officer was in the house. Jose saw the back of the person who fled, and did not know or recognize him. Jose never saw Cardenas in the black SUV. Jose told the officers that his brothers friend Little Jay might have been involved in criminal activity.

Amy Tristan, Joses wife, testified Cardenas was asleep when she left the house that morning, and he was still at home when she returned around 2:00 p.m. She went into the bedroom with her husband around 2:30 p.m., and thought Cardenas was still in the house but she did not know for sure. She did not know that appellant or the two girls were in the house until the officers arrived and escorted everyone into the living room.

Q. Did Ernesto have corn rows in his hair?

[AMY]. That day he only had a braid.

Q. He had a braid?

A. Yeah.

Q. Did he have corn rows?

A. No.

Mrs. Cardenas testified appellant arrived around 11:00 a.m. and asked to eat something. Mrs. Cardenas testified she then left for the store, and Cardenas and appellant stayed at the house. They were still there when she returned around 2:00 p.m. Mrs. Cardenas testified the black SUV was not there when she returned. She testified that she never saw the black SUV arrive, and never saw Cardenas in it. She further testified the two girls arrived by themselves, she did not know them, and Cardenas asked if they could use the bathroom. She did not see or know the person who ran from the backyard, and testified that person was never in the house.

Mrs. Cardenas testified that Cardenas and appellant were in the house all afternoon and never left her sight. She only saw the black SUV when she went outside with the officers. She denied making contrary statements to the officers.

Rodriguez testified that a few days after the incident, she had better recall about the incident and typed out a statement about the confrontation and her memory of the suspects. Rodriguez testified her memory of the event was much clearer at trial.

At trial, Rodriguez identified Cardenas as the driver, and appellant as the right rear seat passenger. Rodriguez testified that neither man was the gunman. Rodriguez testified the only gang colors she saw was the red bandana over the face of the man in the right rear passenger seat.

Testimony of Gang Expert

Lindsay Police Officer Jose Dominguez testified as the prosecutions gang expert. Officer Dominguez had been assigned to the gang unit for four years, and belonged to the Tulare County Gang Task Force and the California Gang Investigators Association. He was familiar with the Lindsay Northside gang (LNS), which was formed in 1992 as a spinoff of the Northside Lindsay gang (NSL).

Officer Dominguez testified he had spoken to approximately 100 members of LNS and NSL, and participated in 40 to 50 criminal investigations involving the two gangs. About 80 percent of the LNS members are between the ages of 18 to 25 years old. LNS claims the color red and the number 14, for the 14th letter of the alphabet, N, which signified north or northern structure. The gangs hand signs demonstrate the number 4, 14, or X4. LNS primarily engages in the criminal activities of assault with a deadly weapon, attempted murder, battery, drive-by shootings, stolen vehicles, drug sales and possession, robbery, and burglary. LNS claims the entire city of Lindsay as its territory, has about 150 members, and maintains a hierarchy of sergeants, lieutenants, and soldiers. A person must be jumped in to become a member, meaning that the person must commit crimes in furtherance of the gang. The rivals of LNS are the Surenos and southern gangs, law enforcement officers, and anyone who crosses them.

Officer Dominguez testified three members of the LNS gang had been convicted of predicate offenses within the meaning of section 186.22, subdivision (e), based on his familiarity and investigation of the cases: (1) Fernando Lopez was convicted of assault with a deadly weapon for striking the foot of the mother of a Brown Sureno Pride member; (2) Francisco Tapia was convicted of assault with a deadly weapon, with a gang enhancement, for punching a Sureno gang member in the face; and (3) Julio Carillo was convicted of assault with a deadly weapon, a knife, with a gang enhancement, for assaulting a member of the Brown Sureno Pride gang.

Officer Dominguez testified Cardenas was an admitted affiliate of the LNS gang, based on information obtained from his previous contacts with law enforcement. The first contact with Cardenas was at continuation school, where Cardenas possessed gang paraphernalia of a red bandana, a red pen, and black dice with the numbers one and four colored in red. At that time, Cardenas admitted to associating with Nortenos but denied being a gang member. Another contact occurred on March 25, 2003, when Officer Dominguez spoke to Cardenas at the same school. Cardenas possessed gang paraphernalia, consisting of a black belt with buckle displaying the number 14. Cardenas again admitted to associating with gang members but denied his own gang membership. On June 23, 2003, Sergeant Wilkinson conducted a traffic stop where Cardenas was in a car with LNS gang member Miguel Mikey Espinoza and Norteno associate Marcos Caniba. On January 17, 2004, Officer Howes contacted Cardenas during a traffic stop when he was in a car with LNS gang member Raymond Perez. Cardenas said he backs north but claimed he only affiliated with them. On July 3, 2004, Officer Chavez conducted a traffic stop where Cardenas said he had not been jumped in to the gang, but he was a gang associate and hung out with his homies.

Officer Dominguez testified Cardenas was found in possession, and photographed with, Norteno gang paraphernalia during his contacts with law enforcement officers on September 11, 2002, March 25, 2003, July 3, 2004, and January 14, 2004.

Officer Dominguez testified appellant was an admitted member of the LNS gang. Appellant had four LNS gang tattoos: four dots on his left wrist, which represented the number four; an X on his right wrist, Tulare County printed in Old English style on his chest, which signified a home county when incarcerated; and X4 on his left index finger.

Officer Dominguez testified appellant had at least 11 gang-related contacts with law enforcement officers. On March 11, 1999, Officer Peterson contacted appellant at the Bank of America, and he was with LNS gang member Miguel Espinoza. Appellant was wearing a red shirt. On February 27, 1999, Sergeant Martinez contacted appellant at a residence with LNS gang members Carlos Espinoza and Luis Rocha. On April 1, 1999, Officer Cabral contacted appellant while he was with LNS gang member Miguel Espinoza. On September 11, 2000, appellant and other northern gang members vandalized the residence of a rival in the Brown Pride Sureno gang. Appellant was wearing a red shirt and had a red bandana.

Officer Dominguez further testified that on October 17, 2000, appellant punched Frankie Ireland in the face, after Ireland refused appellants order to fight someone. Ireland was with LNS gang member Sotaro Soto. On January 14, 2001, appellant was with LNS gang associate Jeremy Day and Norteno gang member Andre Arenivez when they confronted Juan Sanchez, asked what he claimed, Sanchez replied he did not claim, and they jumped him. On February 8, 2001, Officer Holt contacted two Brown Pride Sureno members, Lupaldo Resendez and Jose Vasquez, who reported appellant assaulted them with a stick. Appellant admitted he had been a member of LNS since he was 12 years old. On April 25, 2001, appellant was contacted during a traffic stop while he was with LNS gang members Julian Silvas and Mario Gonzales. On April 27, 2001, Officer Flores contacted appellant while he was in a car with LNS associate Javier Camacho and LNS member Jose Rocha. Flores interviewed appellant, who said he was true to his gang and admitted he was a member of LNS. In April 2001, appellant admitted to Officer Howes he was a member of LNS.

Officer Dominguez further testified that on December 11, 2003, he contacted appellant during a traffic stop while he was with LNS members Cervando Avalos, Jose Rocha, Juan Andrade, and Miguel Ramirez. Appellant again said he was a member of LNS. On January 23, 2004, Sergeant Martinez contacted appellant during a traffic stop, and he was with LNS members Eric Arredondo and Julian Silvas. Silvas was wearing a red shirt and ran from the vehicle.

Officer Dominguez testified that based on his opinion, Cardenas and appellant were active members of LNS at the time of the robbery. His opinion was based on appellants and Cardenass prior contacts with law enforcement, their associates, and their previous possession and display of gang paraphernalia. While Cardenas claimed only to be an associate rather than a member of LNS, Officer Dominguez explained gang members are instructed to deny membership when they speak with the police.

Officer Dominguez testified that based upon his review of the police reports in this case, the robbery was committed for the benefit of the LNS gang.

LNS Norteno gangs are known to commit robberies in such a manner. Their demeanor during the incident is to instill fear in the victim. They commit the crimes in numbers.

Officer Dominguez was aware that only one occupant of the black Trailblazer wore a red bandana, but the presence of the red bandana showed the crime was gang related.

Theyll display some type of paraphernalia or some type of gang slur is made during the commission of the crime. During this incident, the red bandanna over the face indicates that theyre showing the victim that theyre from that particular gang.

Officer Dominguez was also asked about the drivers involvement in the robbery:

[Cardenass attorney]: And your testimony is, in your opinion, is because my client is the alleged driver in this case, that automatically makes it for the benefitting [sic] of the gang, is that your testimony?

A. Yes.

Q. And why is that again?

A. Because he could have drove away, he could have not participated.

Q. But you dont know if he was being threatened by the gun men, correct, the driver?

A. Its possible.^[4]

Officer Dominguez testified there was LNS graffiti on a building about four blocks from the robbery scene. The graffiti had been there for four years and the building owner was not okay about it, but he did not want to cover it because it continued to get spray painted over.

Officer Dominguez testified the purpose of such an armed robbery was not to specifically obtain money, but to instill fear by numbers in the victims as well as in the community. Dominguez acknowledged that Rodriguez only had $5 in her purse, but explained that whatever they can get pretty much is their mentality. If its a large amount, the better; small amount, the act itself would be considered.

... [I]f the value is great, greater than or a large amount, thats considered a victory for the gang. In this case, there was not a large amount so the actual act is considered a victory for the gang.

Cardenass Defense Evidence

Cardenas called Deputy Kevin Elium, who testified about his activities with Deputy Smith when they arrived at Mrs. Cardenass house in Tonyville. Deputy Elium testified that he remained at the front corner of the house and maintained surveillance of the black SUV while Deputy Smith contacted the occupants. Elium could see down the chicken-wire fencing on the property line and into the backyard, but could not see the shed. About two minutes after the deputies arrived, Elium saw a Hispanic male run from the backyard, from the general area of the shed, and jump the fence. The man was about five feet six inches tall, 140 pounds, wearing a jersey, dark pants, and dark shoes, and with his hair shaved close to the scalp. This person was never apprehended.

Deputy Elium testified Cardenas weighed about 130 pounds, and his hair was midlength and not in cornrows. Appellant was wearing a white T-shirt, with his black hair cut short in a Mongolian-style-type haircut.

Cardenas testified at trial that he was not in the black SUV, he did not participate in the robbery of Rodriguez, and he was not in a gang. Cardenas testified he went to work that morning around 6:00 a.m. but was not needed, so he returned to his house around 6:15 a.m. and stayed there all day. His mother left around 9:00 a.m. to go shopping, and he stayed home by himself. Around 11:00 a.m., after his mother arrived home, appellant showed up and asked to eat something.

Cardenas testified he never saw the black SUV until the officers arrived at his house, and that vehicle just showed up in the driveway. When the officers arrived, Cardenas was in the kitchen and appellant was asleep in the bedroom. Cardenas did not know the two girls who were in the house, and they showed up and asked to use the bathroom just before the officers arrived. Cardenas claimed they were not with him when he was arrested.

Cardenas testified he was crying when Detective Pinon interviewed him, because Pinon kept saying he was going to arrest Cardenass mother if he did not cooperate. Pinon advised Cardenas the black SUV was stolen, he was going to arrest Mrs. Cardenas because it was found on her property, and it was his fault. Cardenas testified the black SUV wasnt even hers. She dont even know how to drive, but he did not know where it came from and it was there. I dont know. Cardenas was also upset because Detective Pinon had been pretty aggressive at his house when he was arrested, and Cardenas did not want to get slammed into the ground again.

Cardenas testified that when Detective Pinon asked if he was driving the black SUV, he did not admit to being the driver, but instead responded to Pinons question with his own question, I was the driver of the Trailblazer?

Cardenas testified he did not have a rough, rigid nose. Appellant was his friend, but they did not hang out together a lot, and he did not know if appellant was a gang member. He had never seen the shotgun found in the shed.

Cardenas also testified about the alleged gang contacts described by Officer Dominguez. Cardenas testified he had never been jumped into a gang, he did not have any gang tattoos, and he never worked for a gang. He denied that he ever possessed any gang paraphernalia. He had heard of LNS and seen gang graffiti, and admitted he hung around with certain people, but claimed he did not know these people were Nortenos or LNS members and did not know much about LNS. He denied telling any officer that he was involved with LNS or the Nortenos. When he was in high school, he might have said that he backed North and was only an affiliate. He was in high school when he wore the belt buckle with 14 on it, but a friend gave it to him and he did not know what 14 meant. He admitted he carried a red bandana and dice with red numbers in high school, but explained no one showed blue in high school and he would be beaten if he carried blue. He admitted being in various vehicles with other individuals, but just happened to receive rides from them when the police stopped them.

Appellant did not testify at trial.

Issues on Appeal

Appellant and Cardenas were convicted of count I, second degree robbery; count II, possession of a deadly weapon; and count III, active participation in a criminal street gang. As to counts I and II, the jury found the offenses were committed for the benefit of a criminal street gang. As to all counts, the jury found a principal was armed with a firearm. Appellant and Cardenas were sentenced to aggregate terms of 14 years in prison.

Appellants and Cardenass cases have been joined but not consolidated on appeal. They have filed separate appellate briefs, but each requests to join in arguments raised by the other party which may accrue to [their] benefit.

Cardenas contends the trial court should have granted his motion to bifurcate the gang enhancement from the substantive charges; the gang expert improperly testified as to the ultimate issues in the case; and the abstract of judgment must be corrected.

Appellant similarly contends the court should have bifurcated the gang enhancement, and the gang expert improperly addressed the ultimate issues in the case. Appellant separately contends there was insufficient evidence to support the robbery conviction and the gang enhancement; and the pretrial identification procedures at the in-field showup were impermissibly suggestive and unreliable.

DISCUSSION

I.

BIFURCATION OF GANG ENHANCEMENT

Appellant and Cardenas contend the trial court abused its discretion when it denied their motions to bifurcate the gang enhancement from the substantive charges. Appellant and Cardenas assert evidence as to the gang enhancement was prejudicial and did not have any probative value as to whether they were the individuals in the black SUV who committed the armed robbery.

A. Background

The record infers that appellant and Cardenas tried to bifurcate the gang enhancement prior to trial. In the midst of the prosecutions case, Cardenass defense attorney requested to place his objections to the gang enhancement on the record, and noted he objected twice in chambers to the prosecutions introduction of evidence about things Cardenas did when he was in high school to prove up some gang allegations, and prove up that my client is a member of a gang. Counsel argued Cardenas was only 18 years old when he was found with gang paraphernalia, he only violated school rules, and the evidence was two or three years old. Counsel further argued such evidence was highly prejudicial under Evidence Code section 352, and [w]e should stick with the facts in this case and not with other facts of other incidents.

Appellants defense counsel stated that he had moved to bifurcate the gang evidence from the rest of the trial, and in advance, before the jury came in, and I guess that motion was denied. The court agreed it denied the bifurcation motion.

The prosecutor argued the gang evidence was admissible and relevant as to both the enhancement and the charged offense of active participation in a criminal street gang. The court stated:

And that was the Courts ruling, part of the ruling was that there was notwhen your gang expert testifies regarding those incidents when he was a juvenile, and it may have been a violation of the school policy, but were not going to talk about that, whether it was a violation of school policy, thats really not relevant.

The court explained the evidence was relevant as to whether appellant and Cardenas possessed gang paraphernalia rather than whether someone violated a school policy.

The court further explained that it already excluded evidence about a previous incident where appellant tied a red bandana around his face, because that evidence was prejudicial and too closely associated with circumstances surrounding the incident offense, but the prosecutions expert could testify that appellant was in possession of a red bandana during a previous incident. Cardenass attorney requested a similar ruling as to a previous incident where Cardenas was in possession of a red bandana. The court refused, and explained that it sanitized the previous incident involving appellant because he allegedly wore the red bandana around his neck or face, and there was some conflict in the evidence as to whether appellant was wearing or possessing the bandana.

B. Analysis

A trial court has broad discretion to control the conduct of a criminal trial. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The courts power to bifurcate the trial of a gang enhancement from the trial of the substantive offense is implied in section 1044. (Hernandez, supra, 33 Cal.4th at p. 1048.) Hernandez explained that the need to bifurcate gang allegations is often not as compelling as the bifurcation of prior conviction evidence. (Id. at pp. 1048-1049.) A prior conviction allegation relates to the defendants status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. (Id. at p. 1048, italics in original.)

[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliationincluding evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the likecan help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)

We review the trial courts denial of his motion to bifurcate for abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.) The trial courts discretion to deny a motion to bifurcate the trial of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at p. 1050.) When the evidence sought to be severed is related to a charged offense, the burden is on the defendant to clearly establish a substantial danger of prejudice requiring bifurcation. (Ibid.)

The trial court herein did not abuse its discretion in denying appellants and Cardenass motion to bifurcate the gang enhancement. Appellant and Cardenas note the underlying substantive offenses were not committed against rival gang members, and argue the incident could have simply involved a simple robbery rather than one committed by gang members for the benefit of a gang. This argument ignores the basic facts of the case: Rodriguez was confronted by four individuals in a black Chevrolet Trailblazer, the occupants looked at her in an intimidating and menacing manner while one man held at shotgun at her, and another man tried to conceal his face behind a red bandana. Rodriguez obtained a partial license plate number of the black SUV, and officers found a vehicle matching the description with a similar license plate parked in front of a residence. A pistol-grip shotgun was found concealed within the floor of a backyard shed, and a red bandana was tied around the shotguns trigger. Rodriguez testified the shotguns short barrel was similar to the weapon aimed at her during the robbery. Rodriguez identified two men from the house as the driver and rear passenger who wore the red bandana and, as we will discuss in section III, post, both men had a lengthy history with the LNS gang which shows the color red. The gang aspect of this case was clearly intertwined with the underlying nature of the armed robbery.

In addition, the court gave the jury a limiting instruction on the consideration of the gang experts testimony:

The testimony from this officer or any officer in this case regarding gang involvement or gang activity is being received in this court on the issue of whether or not that gang allegation is true or not true. Its not being received, nor are you to consider it as evidence that these defendants had the propensity to commit the crimes for which theyre on trial. In other words, youre to consider the evidence only for the gang allegation purposes.

We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

Moreover, the gang evidence would have been admissible at trial regardless of the enhancement since appellant and Cardenas were also charged with count III, the substantive offense of active participation in a criminal street gang ( 186.22, subd. (a)), which was not subject to bifurcation. Thus to entirely eliminate the gang evidence would have required a severance ... of the street terrorism count and the bifurcation of the gang enhancements. (People v. Burnell (2005) 132 Cal.App.4th 938, 947.) Appellant and Cardenas did not make any motions to sever count III from the rest of the charges, such that bifurcation of the gang enhancement would have been functionally meaningless. (Id. at p. 948.)

Even if appellant and Cardenas raised a severance motion as to count III, it probably would have been denied. Joint trials of offenses which occur together are legislatively preferred over separate trials, and the party requesting severance of properly joined offenses carries a very heavy burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried before such a severance can be granted. (People v. Burnell, supra, 132 Cal.App.4th at p. 946;  954.) Severance of charged offenses is a more inefficient use of judicial resources ... because severance requires selection of separate juries, and the severed charges would always have to be tried separately[.] (Hernandez, supra, 33 Cal.4th at p. 1050.) The substantive street terrorism count required much the same evidence to prove, and was no more potentially inflammatory, than the other charges, such that severance would not have been appropriate even if appellant and Cardenas had so moved. (E.g., Hernandez, supra, 33 Cal.4th at p. 1051.) Moreover, the gang evidence was cross-admissible in his trial given the existence of the substantive charge. (See People v. Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham) [no possible prejudice to admit evidence if cross-admissibility satisfied].)

II.

THE GANG EXPERT WITNESSS TESTIMONY

Appellant and Cardenas contend the prosecutions gang expert improperly testified as to the ultimate issue in this case, whether appellant and Cardenas committed the robbery for the benefit of a street gang.

Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)

A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. [Citation.] (People v. Mendoza (2000) 24 Cal.4th 130, 177.) Expert opinion testimony is admissible if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code,  801, subd. (a); see also People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)

It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) The subject matter of the culture and habits of street gangs meets the criteria for the admissibility of expert opinion because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.) Such areas include testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendants membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations]. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew), italics added, fns. omitted.)

A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a classic example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.] (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) This is true even if the gang experts opinion in effect embraces an ultimate issue in the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 & fn. 3.) Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.] (Killebrew, supra, 103 Cal.App.4th at p. 651.)

The People are entitled to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. [Citation.] [B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence. [Citations.] [] Expert testimony repeatedly has been offered to show the motivation for a particular crime, generally retaliation or intimidation and whether and how a crime was committed to benefit or promote a gang. [Citation.] (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)

Appellant and Cardenas rely on a series of cases in support of their argument that Officer Dominguez, the prosecutions gang expert, improperly testified as to the ultimate issues in this case. Our review of these cases refute appellants and Cardenass arguments. A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. This issue has long been a subject of debate. [Citations.] (Killebrew, supra, 103 Cal.App.4th at pp. 651-652.)

There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the