Murder committed by means of lying in wait

California Courts of Appeal Reports

PEOPLE v. ORTEGA, C047487 (Cal.App. 12-20-2006) THE PEOPLE,
Plaintiff and Respondent, v. ANDRE LUIS ORTEGA, Defendant
and Appellant. C047487. Court of Appeal of California,
Third District. December 20, 2006. Certified for Partial
Publication[fn*]

[fn*] Pursuant to California Rules of Court, rule 976.1,
only the Introduction, Facts and Procedural Background,
Part IV of the Discussion, and Disposition are certified
for publication.

APPEAL from a judgment of the Superior Court of San Joaquin
County, William J. Murray, Judge. Affirmed.

Mark L. Christiansen, under appointment by the Court of
Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Senior
Assistant Attorney General, Carlos A. Martinez, Supervising
Deputy Attorney General, Marcia A. Fay, Deputy Attorney
General, for Plaintiff and Respondent.

BLEASE, Acting P. J.

Introduction

Defendant, Andre Luis Ortega, murdered Walter Adams when
defendant and Roque Bejarano were on a test drive of a
vehicle Walter Adams had for sale. The test drive was
merely a ruse to get to Walter Adams, whose son, Steve, was
believed to have stolen jewelry and money from relatives of
Robert Sisneros. Sisneros, Bejarano, and defendant were all
part of the Norte??os criminal street gang.

A jury convicted defendant of the first degree murder of
Walter Adams. The jury also found true special circumstance
allegations that the murder was committed by means of lying
in wait, and that defendant killed Adams, or aided and
abetted the killing while being an active participant in a
criminal street gang. The jury found defendant had
intentionally and personally discharged a firearm in the
commission of the murder. The jury found the murder was
committed for the benefit of, at the direction of, or in
association with a criminal street gang, and that defendant
was guilty of actively participating in a criminal street
gang. The trial court sentenced defendant to life in prison
without the possibility of parole on the murder conviction,
plus a consecutive 25-years-to-life term for personally and
intentionally discharging a firearm in the commission of
the murder. The trial court stayed a 10 year sentence for
committing the murder in association with a criminal street
gang, and stayed a two year sentence for street terrorism.

Defendant argues the trial court erred in allowing the
prosecution to proceed on a theory of felony-murder based
upon robbery because it was found at the preliminary
hearing that there was insufficient evidence to hold
defendant over on the special circumstance allegation that
the murder was committed while defendant was engaged in the
commission of a robbery. Defendant also argues the trial
court improperly instructed the jury on the theory of
murder by lying in wait, and improperly refused to instruct
on manslaughter as a lesser included offense. Defendant
claims the gang related count and findings should be
reversed because of insufficiency of the evidence and
because the court failed to require unanimity on which gang
was involved. He also claims his motion to bifurcate these
issues should have been granted. Defendant argues the
prosecutor engaged in misconduct, and that the trial court
erred in allowing the prosecutor’s closing argument chart
to be provided to the jury. Defendant additionally claims
the trial court erred in failing to exclude certain
unfavorable evidence. We find no error, and shall affirm
the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Placer County Sheriff’s Deputy Paul Long testified he
responded to a report of a burglary in Newcastle,
California on January 10, 2002. The address to which he
reported was the residence and work address of Miller and
Aggie Lee, husband and wife. Aggie ran a palm-reading
business from that location. The Lees reported that guns,
coins, credit cards, and heirloom jewelry had been stolen.

Two days after the burglary report Miller Lee told Deputy
Long they had received information that the burglar was
Steve Adams from Stockton. Deputy Long investigated and
discovered that Steve Adams’s address in Stockton was a
palm reading business, and that Gary, Walter, and Lucy
Adams were also related to that address.

Some of the jewelry the Lees reported as stolen turned up
in a pawn shop in Stockton. Miller Lee purchased some of
the jewelry that had a sentimental value, but one piece, a
diamond bracelet, was not recovered from the pawn shop. The
Placer County Sheriff’s Department received almost daily
calls from Miller Lee asking for the status of the
investigation into the burglary. Miller Lee called less
frequently after sheriff’s deputies informed him there was
no evidence linking Steve Adams to the crime. The calls
from Miller Lee ended sometime in February 2002.

Steve Adams’s mother left Steve with Walter and Walter’s
sister Dolly when Steve was a baby.[fn1] Steve was referred
to as Walter’s adopted son. Dolly and her sisters worked at
a palm reading business on East Harding Way in Stockton.
The Adamses refer to themselves as gypsies or Yugoslavians.
Dolly had heard accusations from other gypsies that Steve
was robbing gypsies from out of town.

Walter had a Ford Explorer he had been trying to sell for a
while. On the morning of the murder, October 23, 2002,
Dolly received a phone call asking whether they had a car
for sale. When Dolly told the caller they did, he said he
would come take a look at it. Dolly told the caller that
the car was not there at the time, and he hung up. The man
called again in the afternoon, saying he was coming from
the Fresno area to take a look at the car, and bringing his
aunt, who had the money to buy the car.

Two young Hispanic men arrived to look at the car. Walter
left in the car with the two young men around 2:30 p.m.
Walter was wearing a gold bracelet he had possessed for
four or five years. Dolly became concerned after 30 or 40
minutes had passed and Walter had not come back. Dolly had
a friend take her to the mall around 6:00 p.m. to see if
Walter’s car might be in the parking lot. They could not
find it, and by the time they got back home Steve had
called the police.

The next morning at around 9:00 a.m., Stockton police
investigator David Anderson was dispatched to the west
frontage road of Highway 99 when a report came in that a
Ford Explorer had been found with Walter Adams’s body
inside. Walter’s body was in the passenger seat. There were
rope burns from his mouth to his ear lobes, several gunshot
wounds to his right shoulder area, and a rope was draped
around his chest. Three expended shell casings from a .380
caliber semi-automatic handgun were in the driver’s seat
area, one was in the center console, one was on the right
rear floorboard, and a sixth one was underneath the victim.
The victim’s wallet containing $11 was in his right rear
pants pocket, but he was not wearing a bracelet.

Officer Anderson’s observations led him to conclude someone
had been sitting in the back seat of the vehicle when the
victim was killed. His conclusion was based on the fact
that the driver’s seat was pushed completely forward as if
someone had exited the vehicle on the driver’s side from
the back seat.[fn2] The vehicle could not have been driven
with the seat in that position. The rope burns on the
victim’s mouth were unlikely to have been caused by a
person in the front seat, because a person could not have
exerted enough pressure from that position. Also, the ends
of the rope, which was still draped over the victim, were
pointed over his shoulders towards the back of the seat. The
gunshot wounds came from a position directly above the
victim into his right shoulder. There were no bullet holes
indicating the victim was shot from the front, because
those bullets would have exited the victim’s body and gone
into the seat. The location of the shell casings was
consistent with someone in the back seat having fired the
gun, although it was also possible from the casings that
the shots could have come from the driver’s seat area.

The Explorer was processed for fingerprints. Bejarano’s
fingerprint was discovered on the exterior of the passenger
window, his left palm print was on the interior of the
driver’s door, and his right palm print was on the exterior
of the passenger door. Defendant’s fingerprint was
discovered on the exterior of the passenger door window
frame.

Dr. Robert Lawrence performed Walter’s autopsy. He
determined Walter died as the result of massive hemorrhage
and shock from multiple gunshot wounds. The gun muzzle had
been either in contact with the victim’s skin, or within
less than an inch. Dr. Lawrence was also of the opinion
that the shooter had been in the back seat behind the
passenger. He opined the person in the back seat had been
holding onto the rope with one hand and reaching around
with the gun and firing downward. It was not likely that
the shooter was either in the driver’s seat or standing
outside on the passenger side of the vehicle. Dr. Lawrence
did not go to the crime scene, and did not know if there
was any blood spatter inside the vehicle.

Noori Zamanian, who lived on the Highway 99 frontage road,
called the Stockton Police Department the morning of
October 25, 2002, after reading a newspaper article about
the victim’s body and truck having been found. Zamanian
reported two Hispanic males had come to his house two days
earlier and asked to use the phone. Police officers removed
Zamanian’s telephones and tested them for latent prints.
Defendant’s fingerprint was found on one of the telephones.

Defendant was the first of the three suspects to be
arrested and interrogated. He told investigators that he,
Bejarano, and Sisneros had gone to Stockton in Sisneros’s
vehicle to find someone that had committed a robbery, to
scare the person, and to send him a message to stop
robbing. They spent an hour or two looking for the person,
and when they were unable to find him, decided to find the
person’s father and send the message to him instead. They
knew the father had a vehicle for sale, so they called the
number and pretended they wanted to test drive the vehicle
in order to make contact with the father.

The three agreed that defendant and Bejarano would go with
the victim on the test drive, and Sisneros would follow
them in his car. They were on the freeway when the victim
said he had an appointment and needed to go back. Bejarano,
who had been driving, pulled over to let the victim take
the driver’s seat. When Bejarano reached for the driver’s
door, defendant threw a rope over the victim’s head. He
intended to put the rope around the victim’s neck, but it
got caught on his mouth. By this time, Bejarano was
standing outside the passenger door and saw the rope was
caught in the victim’s mouth. He told defendant, “[y]ou got
to do it[,]” so defendant pulled out a gun and fired. He
was sitting directly behind the victim when he shot him.

Defendant and Bejarano ran across the freeway to the other
side of the frontage road, where they asked a resident if
they could use his phone to call for a ride. Sisneros had
not followed them, and they had no idea where he was.
Defendant first tried to call his cell phone, then called
his home phone in Sacramento. He spoke with Marissa,
Bejarano’s girlfriend, and told her to contact Sisneros to
come pick them up. Shortly after that, Sisneros picked them
up and they went back to Sacramento.

Defendant admitted he had joined the Norte??os when he was
10 or 11 years old. Defendant said there was no way to get
out of the gang, but he did get away from the crowd and try
to stick to himself.

Bejarano testified at trial pursuant to a plea agreement.
He stated that on October 22, 2002, defendant asked him if
he wanted to go somewhere the next day and make some money.
It was Bejarano’s understanding they were going to do a
“lick,” i.e., some criminal activity for the purpose of
monetary gain. The next morning Bejarano agreed to do the
lick. Sisneros picked up the two of them and they drove
from Sacramento to Stockton. Sisneros said they were looking
for someone, and they began driving around Stockton
searching for that person.

Bejarano was aware defendant had a gun because he had seen
it. While they were driving around, Sisneros made a lot of
phone calls regarding the fact that they could not find the
person for whom they were searching. Eventually, Sisneros
made a phone call and told the person on the other end they
could not find the target, but that they had seen the
target’s father. When Sisneros hung up, he said they were
going to go look for the dad.

They went to a palm reading shop and Bejarano called the
number from a “for sale” sign on an Explorer parked in
front of the shop. A woman answered and told Bejarano the
owner of the vehicle was not in, and that he should call
back. Bejarano called back later and said he was coming
from Fresno and wanted to test drive the vehicle. They
waited another 30 to 40 minutes before going back to the
palm reading business. During that time they talked about
what was going to happen. While Bejarano drove the
Explorer, defendant was going to sit in the back seat and
strangle the man with a rope obtained from the back of
Sisneros’s car. Defendant did not want to shoot the man
because he did not want to leave shells behind at the
scene. Sisneros told them the man was wearing a diamond
bracelet and expensive diamond ring, and to be sure and get
the jewelry. Bejarano did not know why the man was being
killed, other than Sisneros said it was to send a message
to the man’s family.

As Bejarano was driving the Explorer, he noticed Sisneros
following them at first, but then noticed he was not there.
He drove the car onto Highway 99. After he went past a
couple of exits, the victim said he needed to get back for
an appointment. Bejarano pulled over and told the victim he
did not know the area and did not know which road to take.
The victim said he would drive. Bejarano was out of the
car, and the victim had opened the passenger door when
defendant put a rope over the victim’s head. Bejarano ran
around to the passenger side and told defendant the rope
was in the man’s mouth. Bejarano shut the door because he
figured defendant was going to shoot the victim. Bejarano
heard defendant shoot the victim five or six times.

Bejarano and defendant ran away from the vehicle. They ran
over an overpass, went to a house, and knocked on the door.
No one answered at the first house, but when they went to a
second house a man came out from the side of the house.
They told him their car had broken down on the freeway and
they needed to use the phone. Defendant made the phone
call. They waited outside, and Sisneros soon came and drove
them back to Sacramento.

During the drive, Bejarano saw defendant holding the
diamond bracelet the victim had been wearing. At one point
during the drive Sisneros talked to someone on the phone to
let them know the deed was done and to set up a meeting.
They met that evening in a parking lot in the Sunrise area
of Sacramento. Sisneros met the person in a parking lot. As
they were driving away from the meeting Sisneros said he
got $2,000 for the job. He gave defendant some of the
money, and defendant gave Bejarano $200. Sisneros said he
had shown the guy the bracelet to let him know the job was
done.

Bejarano had performed a lick previously with defendant
when defendant asked him to go to Willits, California and
steal some marijuana plants. They did that lick with
Raymond Royal and Raymond Rios. Bejarano thought Royal
might have been associated with the Oak Park Bloods. When
they took the marijuana plants, Bejarano and Royal went to
the backyard while defendant held the people in the house
at gunpoint. At one point someone tried to grab some of the
plants from Royal, and Royal shot him. Both defendant and
Royal had guns for the Willits robbery. Defendant’s gun was
a .380 caliber automatic handgun, the same handgun he used
to kill Walter Adams. When police were dispatched to the
Willits robbery, they found a man with two gunshot wounds
to his chest, a woman with a gunshot wound to her knee, and
a man with blunt force trauma to the head.

Bejarano testified that defendant sported gang tattoos, and
that he was once a member of the Norte??o gang. Bejarano was
not sure whether defendant considered himself a gang member
at the time of the Adams murder. When police interviewed
Bejarano in January 2003, he told them both defendant and
Sisneros were members of the Norte??o gang. He stated he
“associated” with Norte??os. Bejarano admitted he had entered
into a plea agreement by which he would receive 18 years in
prison in exchange for his truthful testimony.

Sisneros also admitted he entered into a plea agreement
after being charged with the murder of Walter Adams. In
exchange for his truthful testimony, he agreed to a 20 year
prison sentence.

Sisneros testified he was related to gypsies Johnny
Mitchell and Miller Lee. Sometime in 2002, Miller Lee
approached him and defendant about some property that had
been stolen from Lee, and asked if Sisneros would be
interested in trying to recover it. Lee said he wanted
Sisneros to recover the property and scare the man who had
stolen it. Sisneros said the gypsies treated him with
respect because he had been incarcerated, and they assumed
he was someone to fear.

Lee and Mitchell drove Sisneros to Stockton and took him by
several houses where they believed Steve Adams might be
living. One was a palm reading shop. Sisneros said they
were just supposed to scare Adams, and Sisneros expected no
compensation for it.

Sometime in October Sisneros called a couple of people to
help him with the job. One of those people was defendant.
Defendant and Sisneros were Norte??os, were known to have
guns, and defendant was not afraid to use a gun. Bejarano
also went with them to do the job. Bejarano was also a
Norte??o.

On the day of the murder Sisneros kept in telephone contact
with Lee and Mitchell. They discussed where Sisneros might
be able to find Steve Adams. The plan was to scare Steve by
beating him up. Sisneros, Bejarano and defendant went
several places, but could not find Steve’s car. Sisneros
told Lee there was a red Ford Explorer in front of one
house, and Lee told him he thought the Explorer belonged to
Steve’s father. Lee said that since the father was not
taking responsibility for his son, they should send a
message to the father. Lee told Sisneros the victim wore
expensive jewelry, and that some of it might belong to Lee.
He wanted Sisneros to retrieve the jewelry. Sisneros told
defendant and Bejarano this.

There was a “for sale” sign in the back of the Explorer.
Miller told Sisneros to call the number. Bejarano agreed to
make the phone call. Bejarano and defendant went to test
drive the vehicle, and Sisneros planned to follow them in
his car and pick them up afterward. However, Sisneros got
stopped by a train and lost contact with the Explorer. When
Sisneros could not find them, he headed back to Sacramento.
Within about 20 minutes, he got a call from one of the
men’s girlfriends telling him defendant and Bejarano were
stranded. Sisneros went to pick them up. He exited the
freeway when he saw the Explorer on the side road, and soon
saw Bejarano and defendant walking. After they got in the
car, Bejarano showed Sisneros the bracelet he got from the
victim. They discussed whether they could get any money for
it. Defendant told Sisneros he emptied the gun into the
victim, and Bejarano took off running.

Sisneros got a phone call from Lee, and he told Lee they
had the victim’s bracelet. Lee said he wanted it. Lee told
Sisneros to meet him in Sacramento. The three of them met
Lee and Mitchell in a parking lot. Lee said he would get
money to buy the bracelet. When Sisneros told Lee and
Mitchell that Walter was dead, Mitchell said he got what he
deserved.

After meeting with Lee and Mitchell, Sisneros dropped off
defendant and Bejarano at a chicken place. He gave them
$200 so they would have some money.

About a week later Sisneros met Lee again. He had given Lee
the bracelet, and Lee paid him $3,500. He gave $100 to
Bejarano.

Defendant testified at trial, and recounted a series of
events that differed in several material respects from the
statement he gave police shortly after the murder. He
testified that Sisneros never told him why he wanted
defendant to go out of town with him. He said he rode with
Sisneros and Bejarano to Stockton, where they drove around
to a couple of different locations, including a palm
reading shop. Later, they were shopping when Sisneros and
Bejarano told him Sisneros had contacted his cousin and the
cousin told him where they could locate someone. Defendant
did not know why they were trying to locate the person, and
he was not curious about it. They went to the palm reading
shop and Sisneros told him Bejarano was interested in
buying a car. They got the number off of a “for sale” sign
in the back window of a red Explorer. Defendant did not
decide to go on the test drive with Bejarano until the last
minute.

When Bejarano pulled the car over so that the victim could
drive back to his house, Bejarano pulled a gun on him. The
victim asked what was going on, and Bejarano told him his
son had robbed Lee. Bejarano tossed a rope to defendant.
The victim reached for Bejarano’s gun and started fighting
with Bejarano. Defendant panicked and threw the rope over
the victim to get him to let go of the gun. Bejarano was
standing outside the driver side door when he shot the
victim six times. The victim was leaning over the center
console with his head over the driver’s seat.

Later, Sisneros told him that if anyone questioned him he
should take the blame for the killing because he was the
youngest one and would be out in a couple of years. He said
if defendant did not keep quiet he would suffer the
consequences later. Defendant testified that even though he
had a gang tattoo on his back, he was never a gang member.
He did, however, hang out with a lot of gang members.

Defendant’s version of events was supported by the
testimony of Duane Lovaas, a Department of Justice
criminalist. He theorized that the shooter was the driver
or was in the driver’s position. His opinion was based on
the location of the cartridge casings and the blood spatter
evidence.

Deputy Ronald Aurich testified as an expert in criminal
street gangs. He explained that Norte??o is a criminal
street gang made up of 20 to 25 different subsets in the
Sacramento area. The subsets also have neighborhood
affiliations. Aurich opined that defendant was a Norte??o,
and specifically a Barrio North Side Norte??o. Aurich’s
opinion was based on defendant’s gang logo tattoos,
involvement in gang-related crimes, and the fact that he
kept company with validated gang members. Aurich testified
he had reviewed documentation indicating defendant had
admitted his gang membership to the juvenile county
probation officer.

Aurich opined that Sisneros was also a gang member. His
opinion was based upon the Norte??o prison gang symbols
tattooed on Sisneros’s chest, his involvement in gang
related crimes, the fact that he had been in prison, and
that he kept company with other gang members. Aurich also
opined Sisneros was a gang member with a certain status
above a common gangster from the neighborhood.

Aurich opined that Bejarano was a Norte??o gang member,
based upon his association with other gang members, the
crimes in which he was involved, the neighborhood in which
he lived, and the people with whom he associated.

In Aurich’s opinion Walter Adams’s murder was gang related.

DISCUSSION

I

Collateral Estoppel

The amended complaint contained a robbery count and a
special circumstance allegation that defendant committed
the murder while engaged in the commission of a robbery
pursuant to Penal Code section 190.2, subdivision
(a)(17)(A).[fn3] At the preliminary hearing, the court
found insufficient evidence to hold defendant over on these
charges. The court found there was “insufficient evidence to
establish that the murder was carried out to advance the
commission of a robbery, rather the evidence suggest[ed]
that the robbery was incidental to the murder.” The
information filed thereafter did not include either the
robbery special circumstance allegation or a robbery count.

Defendant filed a motion in limine arguing the prosecution
was precluded from advancing a felony murder theory based
on robbery or presenting any evidence that the homicide was
committed during the course of a robbery. The court denied
the motion, finding, “a particular theory of murder doesn’t
necessarily have to be proved at the preliminary hearing,
as long as the defendant’s on notice that that theory might
be advanced at trial.”

Thereafter, the trial court instructed the jury that the
prosecution contended defendant was guilty of first degree
murder on three theories: deliberation and premeditation,
lying in wait, and felony murder. The felony murder theory
was based on an unlawful killing occurring during the
commission or attempted commission of the crime of robbery.
The court instructed that the jurors were not required to
unanimously agree on the particular theory of first degree
murder as long as they unanimously agreed he was guilty of
first degree murder under any of the theories.

Defendant argues the doctrine of collateral estoppel
precluded the prosecution from trying the case on any
theory of robbery. Collateral estoppel bars the
relitigation of an issue decided in a previous proceeding
if: (1) the issue was actually and necessarily decided in
the prior proceeding; (2) the prior proceeding resulted in
a final adjudication on the merits; and (3) the party
against whom collateral estoppel is asserted was a party or
in privity with a party in the prior proceeding. (People v.
Davis (1995) 10 Cal.4th 463, 514, fn. 10.)

However, the doctrine of collateral estoppel does not apply
to orders dismissing criminal proceedings following a
preliminary hearing. (People v. Wallace (2004) 33 Cal.4th
738, 749.) It is also questionable whether collateral
estoppel even applies to further proceedings in the same
litigation. (People v. Memro (1995) 11 Cal.4th 786, 821.)

In any event, the advancement of a felony murder theory was
harmless beyond a reasonable doubt. The jury was instructed
on three theories by which it could find defendant guilty
of murder in the first degree: (1) premeditated murder, (2)
felony murder (robbery), and (3) lying in wait murder.
While the jury may have based its finding that defendant
was guilty of first degree murder on one or all three
theories advanced by the prosecutor, it necessarily found
that defendant was guilty of lying in wait murder. This is
so because the jury found true the special circumstance
allegation that the murder was committed by means of lying
in wait. The requirements for the lying in wait special
circumstance are more stringent than those for lying in
wait murder, and if the evidence supports the special
circumstance, it necessarily supports the theory of first
degree murder. (People v. Moon (2005) 37 Cal.4th 1, 22.)

Defendant also claims he was denied due process because he
was forced to defend against a charge of which he had no
notice. This is simply incorrect. Defendant obviously had
notice the prosecution intended to argue a felony murder
theory, since he brought a motion in limine to prevent it.

II

Lying in Wait Instruction

The trial court instructed the jury with the language of
CALJIC No. 8.25 regarding murder in the first degree by
lying in wait. In pertinent part, the court instructed as
follows.

“Murder which is immediately preceded by lying in wait is
murder of the first degree. [–] The term lying in
wait . . . is defined as a waiting and watching for an
opportune time to act, together with a concealment by
ambush or by some other secret design to take the other
person by surprise even though the victim is aware of the
murderer’s presence. [–] The lying in wait need
not continue for any particular period of time provided
that its duration is such as to show a state of mind
equivalent to premeditation [or[fn4] deliberation.”

Defendant argues that because the court did not instruct
the jury it had to find both premeditation and
deliberation, it was required to instruct that there had to
exist a “substantial period” of watching and waiting.
Otherwise, he argues, any premeditated murder would satisfy
the requirement of murder by lying in wait. Defendant
acknowledges that the Supreme Court has foreclosed any
argument that the lying in wait murder instruction was
incorrect for requiring premeditation or deliberation in
the disjunctive. He argues instead that the lying in wait
instructions were invalid because they instructed that
premeditation alone was sufficient without requiring a
“substantial” period of watchful waiting.

In People v. Moon, supra, 37 Cal.4th at page 23, the
defendant argued there was insufficient evidence to show he
was watching and waiting for a “substantial period of
time.” The Supreme Court answered the argument by pointing
out that while the court had held that the period of
watchful waiting must be substantial, it had never placed a
fixed time limit on the requirement, and had held that the
precise period of time was not critical. (Ibid.) The court
stated it had approved CALJIC No. 8.25 in People v. Edwards
(1991) 54 Cal.3d 787, 823 (Edwards). (Ibid.) Edwards
specifically upheld a first degree murder by lying in wait
instruction that did not require a “substantial period” of
lying in wait, stating, “the jury was told that the lying
in wait must be of sufficient duration to establish the
elements of waiting, watching and concealment or other
secret design to take the victim unawares and by surprise,
and that a murder done suddenly without such waiting,
watching and concealment is not murder by lying in wait.
These requirements necessarily include a substantial
temporal element. We have never required a certain minimum
period of time, only a period not insubstantial. The
instructions sufficiently convey this meaning.” (Id. at p.
823.)

Here, too, the jury was told that “lying in wait” meant the
defendant was watching for an opportune time to act
together with the defendant’s concealment by ambush or some
other secret design to take the victim by surprise. It was
clear from these instructions that the concept of lying in
wait did not include “a killing that was the result of a
rash impulse[.]”

The Supreme Court has repeatedly approved the language of
CALJIC No. 8.25 against arguments that premeditation and
deliberation should have been set forth in the conjunctive
(People v. Ruiz (1988) 44 Cal.3d 589, 615; People v.
Edelbacher (1989) 47 Cal.3d 983, 1021; People v. Stanley
(1995) 10 Cal.4th 764, 794), and that the instruction
should have required a substantial period of watchful
waiting. (People v. Edwards, supra, 54 Cal.3d at p. 823
[construing the special circumstance instruction]; People
v. Ceja (1993) 4 Cal.4th 1134, 1139-1140.) We are bound by
those decisions.

Moreover, we conclude that even if the trial court had
instructed the jury that a substantial period of watchful
waiting was required, the outcome of the trial would have
been the same, making any error in failing to so instruct
harmless under any standard. Bejarano testified the reason
he and defendant took the victim’s car for a test drive was
so that defendant could sit in the back seat and strangle
the victim with a rope. Before the victim was killed,
Bejarano had driven through the neighborhood behind the
palm reading shop, then taken the car onto the freeway.
During the drive, defendant told the victim he liked the
car. Bejarano was supposed to look for a secluded area where
they could kill the victim.

Defendant’s statement to the police corroborated the fact
that the victim was killed after defendant, Bejarano, and
the victim had been driving on the freeway, and that
defendant had planned to strangle the victim. Even though
defendant gave a different story when he testified at
trial, the jury necessarily did not believe defendant’s
version of events, in which Bejarano was the shooter,
because the jury found true the allegation that defendant
personally discharged a firearm in the commission of the
murder. The evidence was more than sufficient for the jury
to have found that the lying in wait was “of sufficient
duration to establish the elements of waiting, watching and
concealment or other secret design to take the victim
unawares and by surprise[.]” (Edwards, supra, 54 Cal.3d at
p. 823.)

We conclude that the jury in the present case was properly
instructed on the elements of lying-in-wait.

III

Lesser Included Offense Instruction

Defendant argues the trial court erred when it refused his
request that the jury be instructed on the lesser included
offenses of voluntary and involuntary manslaughter. A trial
court errs if it fails to instruct on any lesser included
offense that is substantially supported by the evidence.
(People v. Breverman (1998) 19 Cal.4th 142, 162.) However,
“the existence of `any evidence, no matter how weak[,]'”
does not compel the giving of a lesser included offense
instruction. A trial court is not obliged to instruct on a
lesser included offense unless the evidence is
“‘substantial enough to merit consideration’ by the jury.”
(Ibid.) The evidence was not substantial enough in this case
to warrant a manslaughter instruction.

Manslaughter is “the unlawful killing of a human being
without malice.” ( § 192.) Voluntary manslaughter
applies in two expressly defined and limited circumstances:
where the defendant acts in a sudden quarrel or heat of
passion, or where the defendant kills in the unreasonable
but good faith belief in the need for self defense. (People
v. Blakeley (2000) 23 Cal.4th 82, 87-88.)[fn5] Manslaughter
through provocation involves killing under such heat of
passion as would naturally arouse the mind of an ordinarily
reasonable person under the circumstances. (People v.
Kanawyer (2003) 113 Cal.App.4th 1233, 1244.) There must be
objectively sufficient provocation to incite the defendant
to homicidal conduct, and such provocation must be caused by
the victim, or the defendant must reasonably believe the
victim is engaged in the conduct. (Ibid.) However, the
predictable conduct of a resisting victim is not the sort
of provocation sufficient to reduce a murder charge to one
of voluntary manslaughter. (People v. Jackson (1980) 28
Cal.3d 264, 306, overruled on other grounds by People v.
Cromer (2001) 24 Cal.4th 889, 898.)

There was insufficient evidence introduced in this case to
require an instruction on heat of passion voluntary
manslaughter because the victim’s only provocative conduct
was his predictable resistance to being strangled and shot.

Nor was any evidence presented from which a reasonable jury
could have concluded that defendant killed the victim as a
result of the actual but unreasonable fear of imminent
danger to his life or of great bodily injury. (People v.
Manriquez (2005) 37 Cal.4th 547, 581.) The victim was
unarmed and faced with two attackers. Defendant never
indicated he thought there was any danger his friend
Bejarano would shoot him. The trial court did away from
Bejarano. Under the version of events to which defendant
testified at trial, Bejarano fired the fatal shots, so it
is not clear how this version would support a voluntary
manslaughter defense as to defendant. not err when it
refused to give the jury voluntary manslaughter
instructions.

We need not decide whether the trial court erred in failing
to instruct on the lesser included offense of involuntary
manslaughter, because any such error was harmless beyond a
reasonable doubt. “Error in failing to instruct the jury on
a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the
omitted instructions adversely to defendant under other
properly given instructions.” (People v. Lewis (2001) 25
Cal.4th 610, 646.)

The request for involuntary manslaughter instructions was
based upon a theory of a misdemeanor act committed without
due caution and circumspection. The misdemeanor act was
defendant’s act of putting a rope around the victim to get
him to let go of the gun. Although defendant testified to
this version of events at trial, the jury decided, based
upon proper instruction, that the defendant personally used
a weapon to kill Walter Adams. Since the jury clearly did
not believe defendant’s version of events, he cannot have
been prejudiced by any failure to instruct on involuntary
manslaughter.

IV

Gang Related Counts and Findings

The jury found true the special circumstance allegation
that while defendant was an active participant in a
criminal street gang, he intentionally killed the victim to
further the activities of the criminal street gang. (
§ 190.2, subd. (a)(22).)[fn6] It found true the
allegation that defendant committed the offense for the
benefit of a criminal street gang. ( § 186.22, subd.
(b)(1).) The jury also found defendant guilty of violating
section 186.22, subdivision (a), actively participating in
a criminal street gang. The existence of a criminal street
gang is an element of all three allegations.

A criminal street gang is defined as, “an ongoing
association of three or more persons with a common name or
common identifying sign or symbol [that] has as one of its
primary activities the commission of one or more of the
criminal acts enumerated in the statute[,] and . . .
includes members who either individually or collectively
have engaged in a `pattern of criminal gang activity’ by
committing, attempting to commit, or soliciting two or more
of the enumerated offenses (the so-called `predicate
offenses’) during the statutorily defined period.
[Citation.]” (People v. Gardely (1996) 14 Cal.4th 605, 617;
In re Jose P. (2003) 106 Cal.App.4th 458, 466-467.)

Defendant contends there was insufficient evidence to
sustain a finding of the existence of a criminal street
gang because the gang to which the prosecution’s expert
testified was the Norte??o gang, and the term “Norte??o” is
merely the geographical identity of a number of local gangs
with similar characteristics, but is not itself an entity.
Defendant’s contention is not supported by the evidence.

Defendant relies on People v. Valdez (1997) 58 Cal.App.4th
494 (Valdez), noting that in Valdez the Sixth District
Court of Appeal stated, “Norte??o and Sure??o are not the
names of gangs.” (Id. at p. 508.) However, in Valdez, the
issue was whether the trial court had abused its discretion
in allowing the prosecution’s gang expert to testify that
the defendant had acted for the benefit of a gang, the
defendant arguing the issue was one of fact for the jury.
(Id. at p. 507.) The pertinent facts were that “a group of
individuals from a number of different Norte??o cliques or
gangs in San Jose came together one day and formed a
caravan to attack Sure??os.” (In re Jose P., supra, 106
Cal.App.4th at p. 467.) The court stated that if the
evidence had been that most or all of the participants in
the caravan were from the same Norte??o gang, then the jury
might have been able to determine the “‘for the benefit
etc.'” element as easily as an expert. (Valdez, supra, at
p. 508.) “However,” the court stated, “the facts of the
case were not so simple. The participants in the caravan
were a diverse group, with affiliations to different gangs.
They united for one day to attack Sure??os. At the time it
assembled, the caravan was not a `criminal street gang’
within the meaning of the enhancement allegation. Moreover,
their common identification as Norte??os did not establish
them as a street gang, for, as Officer Piscitello
testified, Norte??o and Sure??o are not the names of gangs.”
(Ibid.) The court concluded the particular facts of the
case were such that the jury could not determine whether a
crime had occurred without the assistance of an expert.
(Ibid.) Even assuming Valdez was correctly decided, a
subsequent decision by the Sixth District reiterated that,
“Valdez does not hold that there is no criminal street gang
called Norte??o.” (In re Jose P., supra, 106 Cal.App.4th at
p. 467.)

Detective Aurich, the prosecution’s gang expert, testified
there were thousands of documented Norte??o gang members in
Sacramento. He testified some of their commonly used
symbols are the letter “N,” the Roman numeral “IV,”
“catorce” (Spanish for 14), and the color red. He testified
some of their primary activities are the commission of
murder, assault, witness intimidation, car-jacking,
robbery, extortion, and dope dealing. Detective Aurich also
testified regarding the facts of two crime reports of
offenses committed by Norte??os. One involved a shooting
into a crowd of rival gangsters. The other involved a
Norte??o gang member shooting someone at a gas station who
was wearing Sure??o colors.

Evidence was thus presented, through the prosecution’s gang
expert, to establish every element of the existence of the
Norte??os as a criminal street gang. Unlike Valdez, there
was no expert testimony in this case that Norte??o is not
the name of a gang, and, as the Sixth District Court of
Appeal recognized in a later case, “the expert testimony in
Valdez was evidence in that case, not this one.” (In re Jose
P., supra, 106 Cal.App.4th at p. 467.)

Detective Aurich testified there were thousands of Norte??o
gang members in the Sacramento area, and 20 to 25 subsets
of Norte??os. We reject defendant’s assertion that the
prosecution had to prove precisely which subset was
involved in the present case. No evidence indicated the
goals and activities of a particular subset were not shared
by the others. There was sufficient evidence that Norte??o
was a criminal street gang, that the murder was related to
activity of that gang, and defendant actively participated
in that gang. There is no further requirement that the
prosecution prove which particular subset was involved
here. As stated in Valdez, supra, 58 Cal.App.4th at pages
506-507, “gangs are not public and open organizations or
associations like the YMCA or State Bar Association, which
have a clearly defined and ascertainable membership.
Rather, gangs are more secretive, loosely defined
associations of people, whose involvement runs the gamut
from `wannabes’ to leaders. Moreover, determining whether
someone is involved and the level of involvement is not a
simple matter and requires the accumulation of a wide
variety of evidence over time and its evaluation by those
familiar with gang arcana in light of pertinent criteria.”
(Fn. omitted.) In this case there was testimony that it was
not uncommon for members of different gangs to work in
concert to commit a crime. In light of the nature of gang
structure and the apparent willingness of members to work
with other gangs to commit crimes, requiring the
prosecution to prove the specific subset of a larger gang in
which a defendant operated would be an impossible, and
ultimately meaningless task.

Defendant also argues a unanimity instruction was required
as to which gang was involved. A unanimity instruction
would not have been appropriate to this situation, thus was
not required.

In People v. Gunn (1987) 197 Cal.App.3d 408, 412, we
explained the circumstances that required a trial court to
give a unanimity instruction.

“When an accusatory pleading charges a single criminal
act, and the evidence shows more than one unlawful act,
there is the possibility of a conviction even though the
jurors are not in agreement as to the act upon which the
conviction is based. [Citations.] It is the general rule
in such cases that the prosecution either `must select
the specific act relied on to prove the charge or the jury
must be instructed in the words of CALJIC No. 17.01 . . .
that it must unanimously agree beyond a reasonable doubt
that defendant committed the same criminal act.
[Citations.]”

The name of a gang is not a criminal act. There was no
evidence that defendant belonged to any gang other than the
Norte??o gang, thus there was no possibility the jury was
indisagreement about the gang with which defendant
associated.There was no need for a unanimity instruction.

V

Personal Use of Firearm Enhancement

The trial court gave two instructions regarding the use of
a firearm in the commission of the murder. The first
instruction was for the allegation that the defendant
intentionally and personally used a firearm in the
commission of the murder. The second was for the allegation
that a principal intentionally and personally discharged a
firearm in the commission of the murder. The jury signed the
verdict form finding true the allegation that the defendant
intentionally and personally discharged a firearm in the
commission of the murder. The jury did not sign the verdict
form for the intentional discharge of a firearm by a
principal.

Defendant argues the jury’s true finding on the personal
use enhancement should be reversed because the jury likely
found Bejarano was the most likely to have personally
discharged the gun. Defendant contends the jury did not
need to decide who actually fired the gun, as long as it
was a principal. Therefore, defendant contends, that is the
determination the jury likely made. We disagree.

It is not reasonably possible the jury determined Bejarano
was the one who fired the gun. The court’s instruction on
the personal use of a firearm informed the jury that
“intentionally and personally discharged a firearm” meant
that “the defendant himself must have intentionally
discharged it.” By contrast, the instruction for discharge
of a firearm by a principal informed the jury that
“intentionally and personally discharged a firearm” for the
purposes of that instruction meant merely that “the
principal” intentionally discharged the firearm.

Moreover, the prosecutor told the jury, “If you believe the
defendant was the one that, in fact, pulled the trigger,
then you find personal use of a firearm.” “If,” the
prosecutor continued, “you believe that Roque Bejarano was
the person that pulled the trigger, you find personal use
to be not true, and you find that use of a firearm by a
principal is in fact the one. . . . If you believe the
defendant, in fact, pulled the trigger, then you find that
— findings that is, in fact, true that he personally
used a firearm. If you, in fact, believe that Roque
Bejarano was the one who did it, you sign 91 [the page
number of the instruction on use of a firearm by a
principal].”

The instructions were appropriately specific about
requiring a finding that defendant himself pulled the
trigger. The prosecutor’s argument reiterated the
instruction. There is no reasonable possibility the jury
did not believe defendant was the shooter.

VI

Conduct of the Prosecutor

a. Questions on Defendant’s Postarrest Silence

Defendant argues the prosecutor’s repeated questioning
about what defendant told others regarding the incident was
misconduct. We shall determine any harm was cured by the
court’s instruction.

After defendant testified on direct examination that
Bejarano had been the shooter and that defendant had been
unaware of the true purpose of the test drive, the
prosecutor asked defendant on cross-examination if it was
fair to say he had never told such a story in the past. The
prosecutor then established that the police had advised
defendant of his Miranda[fn7] rights before questioning
him, that defendant knew the interview was being
videotaped, and that defendant understood he could stop the
interview at any time. The prosecutor then asked defendant
without objection whether he had told the police about the
robbery in Willits when he was questioned about Walter
Adams’s murder.

The prosecutor asked if defendant’s testimony in front of
the jury was the first time he had ever told anyone that
the plan was to meet Johnny Boy (Johnny Mitchell).
Defendant objected, and an unreported bench conference was
held. During the bench conference, defense counsel argued
the prosecutor’s line of questioning violated the
attorney-client privilege. The trial court ordered the
prosecutor to preface his questions to exclude the
communications between defendant and his counsel.

When questioning resumed, the prosecutor asked defendant if
he understood that he did not have to discuss anything he
told his attorney or investigator because it was
privileged. The trial court sustained an objection from
defense counsel and another unreported bench conference was
held. Next, the prosecutor instructed defendant to
disregard anything he may have told his attorney or
investigator, and asked whether, prior to his testimony, he
had told anyone else of his involvement in the Willits
robbery. The prosecutor continued to ask about what
defendant might have previously told others about details
of the Willits robbery.

The prosecutor then began asking questions about
defendant’s direct testimony, and whether he had previously
revealed certain details. When two of the prosecutor’s
questions were not prefaced by an exclusion of defendant’s
attorney or investigator, defendant replied that he had
told certain details to his attorney. The court asked the
attorneys to approach, and the discussion was not reported.
At the unreported bench conference, the court ordered the
prosecutor not to ask any questions about what defendant
said or did not say to anyone after his initial
arraignment.

After the unreported bench conference, the prosecutor
prefaced the next question, and several thereafter, with
some variant of, “[b]efore you were appointed an attorney,
have you ever told anybody. . . .”

Shortly thereafter, the prosecutor started the question,
“Prior to your testimony here today in front of this jury .
. .” when he was interrupted by the trial court, and a
reported conference ensued. The trial court stated that
defense counsel had originally asserted that the questions
about what defendant may or may not have said at a certain
point in time implicated the attorney-client privilege. The
court said it agreed with that concern, but had others as
well. The court noted it had originally agreed to let the
prosecutor ask the defendant what he had told others up to
the time he was appointed an attorney. The court indicated
it no longer thought those questions were appropriate, and
would give a limiting instruction. Defendant’s counsel then
asked for a mistrial on three grounds. He claimed the
questions violated defendant’s privilege against self
incrimination, that the questions implied defendant and his
attorney collaborated to fabricate defendant’s testimony on
the witness stand, and that the questions implicated
attorney-client privilege.

At the request of the defense, and with the prosecutor’s
stipulation, the court gave a limiting instruction. The
court denied the motion for mistrial, and instructed the
jury as follows:

“Questions have been asked concerning what Mr. Ortega
told anyone prior to his testimony today. Do not infer
from these questions and answers that his attorney has
told him what to say in his testimony. [–] Also, do
not consider as evidence defendant’s silence concerning
any events underlying the charges, that silence having
taken place after his first arraignment or first
appearance in court, which was his arraignment on November
5th, 2002. [–] When the defendant was arraigned at
his first appearance in court, he was informed by the
Court that he had a constitutional right not to say
anything about the events underlying the charges. And his
silence was an invocation of those rights. [–]
Also, at his first appearance in court, the defendant was
advised by counsel not to say anything to anyone
concerning the events underlying the charges. Therefore,
you must not draw any inference from his silence after
his arraignment. [–] Further, you must not discuss
it, nor permit it to enter into your deliberations in any
way.”

After the verdict, defendant moved for a new trial on the
basis of prosecutorial misconduct. The trial court denied
the motion, stating the curative instruction given remedied
any violation.

Defendant argues the prosecutor committed Doyle[fn8] error
in cross-examining him about his postarrest silence. The
defendants in Doyle made no postarrest statement after
being given their Miranda warnings. At trial, they
contended for the first time that they had been framed by a
government informant. (Doyle, supra, 426 U.S. at pp.
612-613 [49 L.Ed.2d at p. 95].) The prosecutor attempted to
impeach their testimony by asking why they had not told
their story of a frame-up before trial. (Id. at pp. 613-614
[at pp. 95-96].) The United States Supreme Court reversed
the convictions, holding that Miranda prohibited such
questions as a means of impeachment. (Id. at p. 617 [at p.
97].)

Subsequently, the United States Supreme Court clarified
that, “Doyle does not apply to cross-examination that
merely inquires into prior inconsistent statements. Such
questioning makes no unfair use of silence because a
defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent.” (Anderson
v. Charles (1980) 447 U.S. 404, 408 [65 L.Ed.2d 222, 226].)

In People v. Belmontes (1988) 45 Cal.3d 744, the California
Supreme Court indicated that while it is permissible to
question a defendant about inconsistencies between
extrajudicial statements and trial testimony, questions
that elicit a defendant’s testimony that he made no
statements about the crime after being appointed an
attorney, but before trial, run afoul of Doyle. (Id. at pp.
785-786.) Belmontes held that the questions in that case
had the potential to ripen into Doyle error because,
although they may have been meant to point out the
differences between the defendant’s extrajudicial
statements and his trial testimony, they could have been
interpreted to highlight the defendant’s silence between
his last jailhouse statement (after which he was appointed
an attorney) and trial. (Id. at p. 786.) The Belmontes
court held the questions in the case before it did not
ripen into Doyle error because of the trial court’s
admonishment. (Id. at pp. 786-787.)

In this case, most of the prosecutor’s questions regarding
what defendant did or did not say were also an attempt to
highlight the difference between defendant’s statement to
police and his trial testimony. The prosecutor asked
numerous questions about defendant’s trial version of
certain details of the crime, and whether defendant had
previously told anyone the trial version. After asking
numerous questions in this vein, the prosecutor emphasized
by his questions that defendant had spent three hours
talking to the police about “each and every one of these
things,” and yet he chose to tell a story he claimed at
trial was a lie. As in Belmontes, the prosecutor’s questions
here could have been interpreted to highlight defendant’s
silence after he was appointed an attorney, instead of the
differences between defendant’s two versions of the crime.
For this reason, the prosecutor’s emphasis on whether
defendant had ever made certain statements before trial,
rather than on the discrepancies between defendant’s
pretrial and trial statements, was ill-advised. However,
also as in Belmontes, the questions did not ripen into
Doyle error because the trial court admonished the jury not
to draw any inference from defendant’s silence after he was
appointed an attorney.

There was no Doyle error with regard to the questions the
prosecutor asked about the Willits robbery. The reasoning
of Doyle is that a person arrested for a crime has the
right to remain silent, and that after being informed of
that right, he should not be penalized for exercising it.
(Doyle, supra, 426 U.S. at p. 619 [49 L.Ed.2d at p. 98].)
Defendant was not arrested for the Willits robbery, nor was
he charged with the Willits robbery. By emphasizing his
silence on the Willits robbery, the prosecutor was not
punishing defendant for exercising his Miranda rights in
this case.

We also find no prejudicial violation of defendant’s
attorney-client privilege. After defense counsel objected
to the prosecutor’s questions on this ground, the
prosecutor told defendant anything he may have told his
attorney or investigator was privileged and that he did not
have to discuss it. Even though every question may not have
been prefaced with that disclaimer, it was clear from the
context that the prosecutor was not attempting to elicit
attorney-client confidences.

In any event, we conclude any error as a result of the
prosecutor’s questions was not prejudicial. Error in this
circumstance is prejudicial if the evidence against
defendant is less than overwhelming and if the improper
questioning touched a live nerve in the defense. (People v.
Lindsey (1988) 205 Cal.App.3d 112, 117.) However, the
prejudicial impact may be ameliorated by a strong curative
instruction. (People v. Galloway (1979) 100 Cal.App.3d 551,
560.)

This case differs from People v. Galloway, supra, because
here there was a strong curative instruction, the evidence
of guilt was overwhelming, and the prosecutor did not
emphasize defendant’s silence in closing argument so as to
touch a “live nerve.” The evidence was overwhelming because
no less than three people gave statements naming defendant
as the shooter: Bejarano, Sisneros, and defendant himself.
These stories were completely consistent with the physical
evidence. Defendant’s testimony that he did not shoot the
victim was not his sole defense, and the prosecutor did not
bring up defendant’s silence in his closing argument. The
prosecutor could legitimately emphasize defendant’s prior
statement, the inconsistencies, and the likelihood that the
trial testimony was the false testimony. Finally, the trial
court gave a strong curative instruction, and we must
presume the jury understood and followed this instruction.
(People v. Cline (1998) 60 Cal.App.4th 1327, 1336.) We
conclude that had the prosecutor phrased his questions so
as to emphasize defendant’s changed story rather than
defendant’s silence, it would have had no effect on the
verdict. Any error was therefore harmless.

b. Reference to Polygraphs

The plea agreements for Bejarano and Sisneros were admitted
into evidence without objection, and defense counsel
cross-examined Bejarano and Sisneros extensively regarding
the agreements. In closing argument, defense counsel argued
Bejarano and Sisneros knew what information the prosecution
wanted and acted in their own self interest by giving the
prosecution the information it wanted. Defense counsel told
the jury to be skeptical of the contracts and to
“scrutinize” them.

In rebuttal, the prosecutor argued the plea deals were not
actually that good for Bejarano and Sisneros, and that the
plea agreements meant that both of them would be serving
more time than if they had been convicted of second degree
murder, and almost as much time as if they had been
convicted of first degree murder. The prosecutor went on to
explain that by entering into the plea agreements they did
not have the benefit of a determination, “based upon
judges, courtrooms, anything else like this. The second
page of both of these contracts explains that they have to
have a polygraph, a polygraph examination, that would be
submitted at any time. So we don’t have to come in here. We
don’t have to have a jury determine this. We don’t have to
hear closing arguments. If they fail a polygraph, all bets
are off. They return to their original positions, face the
rest of their lives in prison.”

At the next court recess, defense counsel informed the
court: “I know there’s language about polygraphs in the
contracts. I certainly don’t have any objection to it being
referenced, however, the insinuation to the jury that
polygraphs were done in this case, obviously that would
create the inference that if the polygraphs passed [sic]
would certainly be absolutely false.” The prosecutor and
the court assured defense counsel that no such insinuation
had been made, and defense counsel raised no objection.

Defendant claims the prosecutor’s reference to polygraph
tests violated Evidence Code section 351.1, and constituted
misconduct. We disagree.

Evidence Code section 351.1, subdivision (a) states:

“Notwithstanding any other provision of law, the results
of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to
take, or taking of a polygraph examination, shall not be
admitted into evidence in any criminal proceeding,
including pretrial and post conviction motions and
hearings, or in any trial or hearing of a juvenile for a
criminal offense, whether heard in juvenile or adult
court, unless all parties stipulate to the admission of
such results.”

This section prohibits references to polygraphs from being
admitted into evidence. Of course, the arguments of counsel
are not evidence, so any mention of a polygraph in the
prosecutor’s closing argument did not violate Evidence Code
section 351.1. Although defendant does not raise the
argument, the admission of the plea agreements also did not
violate the section. The plea agreements did not contain
the results of a polygraph examination, the opinion of a
polygraph examiner, or any offer to take or refusal to take
a polygraph. The agreements merely stated that a polygraph
could be required at any time.

c. Mischaracterization of Evidence

During closing argument the prosecutor, referring to
defendant’s statement to the police, made the following
argument to the jury:

“You saw just on Friday the manner in which the police
officers asked him [the caliber of the weapon used]. There
was no suggestion [in the question that would have
prompted the correct answer]. He knew the caliber, not
because he read the little shell casings that were there
in the car. He knew the caliber that was used because
he’s the one that had the gun. He also knew the number of
shots fired because he’s the one that fired the gun. When
you have that loud number of shots like Duane Lovaas
[defendant’s expert witness] is describing in a small
vehicle, when you have this type of echo that is going
off, it’s impossible for anyone to tell the number of
shots between three and ten or whatever, especially going
off in . . . [an objection was interposed] when it’s going
off in rapid succession over a brief amount of time. He
knows how many shots are in there because — he
knows how many shots were in the gun because he loaded
the gun, because he was the person who, in fact, pulled
the trigger.”

Defendant argues that since Lovaas did not testify it was
impossible to tell the number of gunshots going off, it was
misconduct for the prosecutor to argue such a fact.

While a prosecutor may not mischaracterize the evidence in
his or her closing argument, fair comment on the evidence
is allowed. (People v. Harrison (2005) 35 Cal.4th 208,
244.) Fair comment includes reasonable deductions or
inferences drawn from the evidence. (Ibid.) In this case,
Lovaas testified the victim was shot six times from the same
gun, that the noise would have been very loud, especially
since it was in a closed vehicle, that the bullet wounds
were consistent with the victim being in the same position
for all six shots, and that the type of gun used would have
made it possible to fire all six shots in a matter of
seconds. The prosecution’s expert also testified the
victim’s wounds were consistent with the shots having
occurred very close in time. It was reasonable to infer
from this evidence, that a person hearing the shots would
not necessarily know exactly how many times the victim was
shot, and that the only reason defendant knew how many
times the victim was shot was because he was the shooter.
The argument was a fair comment on the evidence, not a
mischaracterization of the evidence.

VII

Motion to Bifurcate Gang Charges

Defendant argues the trial court erred when it denied his
pretrial motion to bifurcate the trial of the gang offense,
the gang special circumstance allegation, and the gang
enhancement allegation. We review the trial court’s denial
of the motion to bifurcate for abuse of discretion. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The
trial court does not abuse its discretion unless the gang
evidence is “so extraordinarily prejudicial, and of so
little relevance to guilt, that it threatens to sway the
jury to convict regardless of the defendant’s actual
guilt.” (Id. at p. 1049.)

Evidence of gang affiliation is admissible to prove the
charged offense where it is relevant to prove, “identity,
motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the
charged crime.” (Hernandez, supra, 33 Cal.4th at p. 1049.)
“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.” (Ibid.) Less need for bifurcation exists in a
case such as this than in a prior conviction case because a
gang enhancement is attached to the charged offense and is
“inextricably intertwined with that offense.” (Id. at p.
1048.)

In this case the evidence used to prove the gang
enhancement, charge, and special circumstance allegations
was relevant to prove motive, intent, and to impeach
defendant’s story that he was an innocent bystander in the
entire affair. The gang-related evidence was “inextricably
intertwined” with the charged offense of murder, and the
trial court did not abuse its discretion in denying the
motion to bifurcate.

VIII

Other Crimes Evidence

Defendant argues the trial court erred in denying his
motion to exclude evidence of other crimes. Specifically,
he objects to the introduction of the Willits robbery and
of a drive-by shooting in Stockton.[fn9] Defendant made a
pretrial motion pursuant to Evidence Code section 1101,
subdivision (a) to exclude this evidence, arguing it had no
relevance and was prejudicial.

In denying the motion to exclude evidence of the two
incidents, the trial court held they were relevant to a
“pattern of criminal gang activity” which the prosecution
was required to prove to obtain a conviction for violation
of section 186.22, subdivision (a), participation in a
criminal street gang. The trial court also found the
evidence was admissible under Evidence Code section 1101,
subdivision (b) because it was relevant to show motive,
lack of accident, and aiding and abetting. Evidence Code
section 1101 states in relevant part that evidence of a
person’s character, including specific instances of
conduct, is inadmissible to prove that person’s conduct on a
specified occasion, unless the evidence is relevant to
prove motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.

Two of the disputed issues at trial were whether the
incident was gang-related and whether defendant was the
shooter. Defendant claimed at trial he thought the test
drive of the victim’s vehicle was legitimate, and he had no
idea there was a plan to harm the victim. He also claimed
he hung out with gang members, but he had never done any
crimes for the gang. Both of the prior incidents at issue
were relevant to show motive, knowledge, and absence of
mistake or accident. They showed defendant had committed
prior gang-related crimes with the two other gang members
involved in the instant case, and that defendant had been
armed in each instance. Together with the testimony of the
gang expert that gang crimes are often committed to harm
rivals and to make money, the prior incidents tended to
show defendant had those motives in past gang crimes, and
likely had those motives in this crime. The prior incidents
also tended to show defendant was an active participant in
gang crimes, making it unlikely his involvement in Walter
Adams’s murder was accidental.

The evidence was properly admitted pursuant to Evidence
Code section 1101, subdivision (b). Nevertheless, defendant
contends the trial court abused its discretion in allowing
the evidence because it was unduly prejudicial,
uncorroborated, cumulative, devoid of detail, and
dissimilar to the crime at issue. We will reverse the trial
court’s exercise of discretion only if the ruling was
“‘arbitrary, whimsical, or capricious as a matter of law.
[Citation.]'” (People v. Branch (2001) 91 Cal.App.4th 274,
282.)

Evidence Code section 352 provides that the trial court
may, in its discretion, exclude relevant evidence if its
probative value is substantially outweighed by the
likelihood that it will necessitate undue consumption of
time or create a substantial danger of undue prejudice,
confuse the issues, or mislead the jury. The factors to be
considered in determining whether to exclude uncharged
offenses sought to be admitted under Evidence Code section
1101, subdivision (b) are: “(1) the inflammatory nature of
the uncharged conduct; (2) the possibility of confusion of
issues; (3) remoteness in time of the uncharged offenses;
and (4) the amount of time involved in introducing and
refuting the evidence of uncharged offenses.” (People v.
Branch, supra, 91 Cal.App.4th at p. 282.)

In this case neither of the prior incidents was as
inflammatory as the charged offense of murder, both prior
incidents appeared to have been fairly recent,[fn10] there
was no possibility of confusion of the issues, and the
amount of time spent on the prior incidents was minor in
comparison to the voluminous testimony presented in this
trial.

Defendant argues the trial court erred in admitting
Bejarano’s testimony regarding the prior drive-by shooting
in Stockton because it was based on the uncorroborated
evidence of an accomplice. Although Penal Code section 1111
requires that accomplice testimony be corroborated to
support a conviction, the statute relates to the
sufficiency, not the admissibility of the evidence. (People
v. Riel (2000) 22 Cal.4th 1153, 1190.)

To the extent defendant argues the trial court erred in
admitting Bejarano’s testimony regarding the prior Stockton
shooting because there was no proof of the corpus delicti
of the shooting, any such claim is forfeited for failure to
object on that ground at trial. (People v. Martinez (1996)
51 Cal.App.4th 537, 544.) Moreover, the corpus delicti rule
has never been applied to other crimes evidence. (Id. at p.
545.)

Defendant also argues it violated his right to due process
to admit evidence that was offered only to prove his
propensity to commit crimes. We have determined the
evidence was properly admitted for reasons other than to
establish a propensity to commit crimes, thus there was no
due process violation.

IX

Tattoo Evidence

Defendant argues the trial court erred in not sustaining an
objection to a prosecution question asking whether one of
defendant’s tattoos showed a propensity for violence. We
shall conclude the issue was not preserved for appeal
because defense counsel was not specific as to the ground
for the objection, and that any error in failing to sustain
the objection was harmless because no improper propensity
evidence was presented.

Evidence Code section 353 precludes reversal of a judgment
because of the erroneous admission of evidence unless there
was a timely objection making clear the specific ground for
the objection. Defendant’s trial counsel did not specify
any ground for objecting, thus the issue was not preserved
for appeal. (People v. Partida (2005) 37 Cal.4th 428, 431.)

In any case, no objectionable propensity evidence was
presented. The objection occurred when the prosecutor was
questioning Aurich, the gang expert, about defendant’s
tattoos. The prosecutor asked whether a certain tattoo
indicated gang involvement. The expert responded the tattoo
was more an indication of gang mentality or characteristic.
The prosecutor then asked: “Now when you have this tattoo .
. . this creature with a hat, maybe it’s a clown with a
hat, and the two firearms, both double barreled or two
firearms, is that bragging about your propensity for
violence?” The trial court overruled defense counsel’s
objection, and the witness replied, “I think it promotes
what the mentality of that person in that the lifestyle he
chooses by showing that his use of guns — are in
favor of guns is not — is well within his realm.
Again, these tattoos are a way of sort of gangsters because
they are more visible. Intimidating people and intimidating
or projecting the sense of status by tattooing.”

Aurich then testified that the five-pointed star in the
tattoo was a symbol for the Norte??o gang. Based on
defendant’s tattoos, as well as other factors, Aurich
opined that defendant was an active participant in
Norte??os, a criminal street gang.

Defendant was charged with a gang special circumstances
allegation, a substantive gang charge, and a gang
enhancement. The gang charge in particular requires the
prosecution to prove defendant was an active participant in
the gang. Evidence of the significance of defendant’s
tattoos was relevant to show his active participation.
Aurich did not testify that the tattoo showed a propensity
to violence, but that it was a visible signal of gang
membership designed to intimidate and project a sense of
status in the gang. Such evidence of gang culture and
habits was admissible. (People v. Ferraez (2003) 112
Cal.App.4th 925, 930.)

X

Prosecutor’s Chart

Before closing argument, the prosecutor submitted a chart
he proposed to use for closing argument, and which he
wanted to let the jury take into the jury room. Defense
counsel objected on the grounds the instructions were “more
than sufficient.” The trial court asked defense counsel
whether the chart contained any legal inaccuracies. Defense
counsel replied that the chart did not appear to be
intentionally deceptive, but that it did not spell out the
rules completely. Defense counsel was particularly
concerned about information provided under an asterisk. The
trial court allowed the prosecutor to put the chart on the
wall and to give the jury copies to hold during closing
argument, but deferred ruling on whether it could go to the
deliberation room.

During closing argument, the prosecutor gave copies of the
chart to the jury. He explained that the chart was a kind
of road map to work through the case. He explained that the
chart showed two different charges — murder and
being an active participant in a criminal street gang. He
told the jury they would have to determine guilty or not
guilty as to the two charges. He then explained that the
jury would have to decide whether the murder was first or
second degree. He said that if the jury found the murder to
be first degree, it would have to determine whether there
were special circumstances, but that if the jury found the
murder to be second degree, there need be no special
circumstances findings.

As to the asterisk, the prosecutor said it referred to the
different theories for a finding of murder, and told the
jury it did not have to agree as to which one of the
theories applied as long as the finding of murder or murder
in the first degree was unanimous. Prior to the defense
counsel’s closing argument, the court told the prosecutor to
take off the district attorney’s label and delete the
asterisks and footnotes. The court stated it would let the
chart go to the jury room as a supplement to the written
instructions. Thereafter, defense counsel used the chart to
argue Roque Bejarano was guilty of first degree murder,
lying in wait and felony murder.

The chart that was sent to the jury lists in chart form the
crimes for which defendant was being tried, the possible
degrees, the special circumstance allegations, and the
enhancements.[fn11] The trial court instructed the jury
that the chart would be included as page 114 of their
instructions as a supplement to the instructions. “It’s not
intended to be a detailed explanation of all the elements
required for everything that’s depicted on the chart. That
explanation is within the written instructions that you
have there in your binder. If you perceive a conflict
between the chart and any of the written instructions,
follow the written instructions, okay?”

The chart does not contain any error of law or fact, nor
does defendant argue it contains any such error. Instead,
he argues the chart implied the prosecution’s analysis of
the case was the correct one.

Section 1137 provides that the jury may take to the
deliberation room documentary evidence, written
instructions given, and notes they have taken on the
testimony. While the trial court’s decision to make the
chart a supplement to the written instructions is certainly
irregular, defendant has shown no prejudice. The chart sent
to the jury does nothing more than set forth the
allegations of the complaint in graphic form. The task of
the jury was to analyze the evidence within the framework
of the crimes charged. The chart was merely an aid to that
end, and did not favor one side over the other. No prejudice
can be implied where defendant does not make any showing
that the chart contained information not contained in the
instructions, that the jury actually used the chart in its
deliberations, or that the jury obtained an improper
impression from the chart. (See People v. Herrera (1917) 32
Cal.App. 610, 615 [defendant not prejudiced by fact that
jury took non-documentary evidence into jury room in the
absence of showing that jury used such evidence in its
deliberation or received any improper impression
threfrom].)

Defendant argues the trial court erred in telling the
jurors to follow the written instructions if there was a
conflict between the instructions and the chart. He argues
the jury may have relied on the chart entirely if they did
not perceive any discrepancy with the instructions. It is
not possible that the jury relied entirely on the chart. As
the trial court instructed, it was not intended as a
detailed explanation, which could be found only in the
instructions. The chart itself contains only the names, and
none of the elements

of the various crimes, enhancements, and special
circumstances alleged. The jury could not have relied on
the chart for any information other than as an impartial
flow chart that directed the mechanics of coming to a
decision, but not the result itself. There was no error.

DISPOSITION

The judgment is affirmed.

[fn1] Members of the Adams family will be referred to by
their given names.

[fn2] The Explorer was a two-door vehicle.

[fn3] Undesignated section references are to the Penal Code
unless otherwise noted.

[fn4] The trial court’s oral instruction to the jury used
the conjunctive. However, the written instructions used the
disjunctive, “or.” The Supreme Court has indicated that
where the written instructions given to a jury to take into
the deliberation room conflict with the court’s oral
instructions, the written instructions govern any conflict.
(People v. Osband (1996) 13 Cal.4th 622, 717.) Here, the
jury had the written instructions in the jury room. We
therefore analyze defendant’s argument in light of the
trial court’s written instruction.

[fn5] At trial, defense counsel relied on defendant’s
testimony there was a confrontation between Bejarano and
the victim in the front seat of the Explorer, and that
defendant intervened by placing a rope around the victim’s
head in order to pull him

[fn6] As stated in the unpublished portion of this opinion,
undesignated section references are to the Penal Code.

[fn7] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d
694].

[fn8] Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91]
(Doyle).

[fn9] Bejarano testified that when they were in Stockton on
the day of the murder and about an hour before the murder,
defendant and Sisneros were talking about another shooting
they did in Stockton. They said defendant, who was inside
Sisneros’s vehicle at the time, shot a man who was sitting
in his car.

[fn10] The Willits incident occurred in October 2002.
Bejarano testified he thought the prior Stockton shooting
had occurred within the year.

[fn11] A copy of the chart is attached as an appendix.