People v. Cage CA4/1

Filed 1/22/16 P. v. Cage CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068513

Plaintiff and Respondent,

v. (Super. Ct. No. FVI1203340)

MARVIN DESHAWN CAGE et al.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino, Eric M.

Nakata, Judge. Affirmed as modified, remanded for resentencing.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and

Appellant Marvin Deshawn Cage.

Melissa Hill, under appointment by the Court of Appeal, for Defendant and

Appellant Tobias Antonio Dunn.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Marvin Deshawn Cage and Tobias Antonio Dunn (Cage and

Dunn, together Appellants) of first degree murder (Pen. Code,1 § 187, subd. (a); count 1);

attempted first degree murder (§§ 664, subd. (a)/187, subd. (a); count 2); and street

terrorism (§ 186.22, subd. (a); count 3). With respect to counts 1 and 2, the jury found

true that a principal personally and intentionally discharged a firearm, causing death to

the victim (§ 12022.53, subds. (d) & (e)(1)); a principal personally and intentionally

discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and as to count 2, a principal

personally used a firearm (§ 12022.53, subds. (b) & (e)(1)). The jury also found that

Appellants committed the offenses in counts 1 and 2 for the benefit of, at the direction of,

or in association with a criminal street gang with the specific intent to promote, further or

assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).)

In a bifurcated proceeding, the trial court found true that Dunn sustained a prior

serious or violent felony conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i) & 667,

subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). The trial court also

found true that Cage had sustained two prior strike convictions (§§ 1170.12, subds. (a)-

(d), & 667, subds. (b)-(i)), two serious felony convictions (§ 667, subd. (a)(1)), and

served four prior prison terms (§ 667.5, subd. (b)).

The trial court sentenced Cage to prison for 170 years to life plus 22 years. The

trial court also sentenced Dunn to prison for 130 years to life plus 10 years.

1 Statutory references are to the Penal Code unless otherwise specified.
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 Appellants appeal, contending the trial court prejudicially erred in: (1) allowing

certain hearsay evidence to be admitted at trial; (2) allowing an expert witness to testify

that another witness was afraid of Appellants and scared while testifying; and (3)

sentencing both Appellants based on a finding they personally used a firearm when the

jury made no such finding. In addition, Cage argues that substantial evidence does not

support his conviction for murder, attempted murder, and street terrorism. And Dunn

asserts the trial court improperly instructed the jury on the elements of street terrorism

and his trial counsel was constitutionally ineffective. We agree with Appellants that there

was no finding that either of them personally used a firearm and the trial court improperly

sentenced them, apparently assuming there was such a finding. However, we determine

that the rest of Appellants' claims are without merit or, even if the trial court erred,

Appellants were not prejudiced. As such, we affirm the judgment as modified and

remand the matter to the superior court for resentencing.

FACTUAL BACKGROUND

Prosecution

Appellants were members of the Poccet Hood Compton Crips criminal street gang.

Deshon Douglas was a member of the Front Hood criminal street gang and rival of

Poccet Hood. The rivalry was violent, and if two rival gang members encountered each

other on the street, they usually physically fought or, if they had guns, shot each other.

Douglas was engaged to Tamara Payton, and they were living together for six

months prior to Payton's death. Around November 24, 2012, Douglas was washing

Payton's car in their driveway on Serrano Road in Apple Valley when he noticed Cage

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parked at the curb in his grey Buick Park Avenue. As Douglas approached the car, Cage

drove away.

A day or two later, Douglas and Payton were at Grand Liquor store in Apple

Valley. Douglas saw Dunn sitting in the backseat of Cage's car and a woman sitting in

the front passenger seat. Inside the store, Douglas ran into Cage. Cage started laughing

or smirking, and yelled to Dunn, "He's one of them boys." Dunn got out of the car and

walked toward the door of the liquor store, but did not say anything to Douglas. Cage

asked Douglas where he was from. Douglas responded, "You know where I'm from."

Cage then said, "I'm from Poccet Hood. They call me Monster."

Douglas returned to his car and drove away with Payton. As they were driving,

Cage drove up behind them and acted like he was going to hit their car. Douglas wanted

to get out of his car, but Payton persuaded him to stay in the car and keep driving. After

they turned on Highway 18, Cage started swerving his car towards Douglas's, again

acting like he was going to hit Douglas's car. Douglas sped up, and Cage turned on to

another street.

On November 27, 2012, Douglas and Payton were getting ready to go to Long

Beach when Douglas realized the gas tank on Payton's car was leaking because someone

had stabbed it. Douglas and Payton thought James Ware might be responsible for the

punctured tank because Douglas and Ware had fought a few days earlier. Douglas and

Payton drove to AutoZone to get items to fix the tank. As they were driving, they saw

Cage driving in the opposite direction. Dunn was in the front passenger seat. Cage

swerved as if he was going to drive across the road, but then continued driving.

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 Around 5:00 p.m., when Douglas and Payton returned from AutoZone, Douglas

saw someone by the side of their house. Douglas drove up the 135-foot long driveway

and parked the car. Unbeknownst to Douglas, Cage and Dunn had driven to Serrano

Road with their friend Parrish Duren.2 Cage had told Duren that they needed to go take

care of business, and Cage and Dunn each grabbed handguns from under their seats and

walked toward Douglas and Payton's home. Cage had a nine-millimeter handgun, and

Dunn had a .380 caliber handgun. Duren got in the driver's seat of Cage's car and turned

it around to await their return.

As Douglas exited the car, Dunn began running toward him with a gun. Dunn

began shooting at him. Cage was standing near the end of the driveway. Douglas ran to

the passenger side of the car and threw Payton to the ground, trying to cover her. When

Dunn got close enough, he kicked Douglas off of Payton and shot her several times.

Dunn then ran back down the driveway. Holding guns in their hands, Dunn and Cage

returned to Cage's car, and Duren sped away. One of Douglas's neighbors saw the car as

Appellants fled, although the neighbor thought it was a Buick LaSabre, which is similar

to a Buick Park Avenue.

After the shooting, Douglas ran to his next door neighbor's house and asked her to

call 911. She had heard Payton's car drive up and then about three gunshots. Other

neighbors heard four to six gunshots, and then heard Douglas yelling for help. They

2 Duren pled guilty to voluntary manslaughter with a gang enhancement and
received a 16-year prison sentence.
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called 911 and went over to assist. Emergency personnel arrived and began attending to

Payton.

San Bernardino County Sheriff's Deputy Bryan Faylor responded to the scene and

spoke with Payton while she was in the ambulance. Faylor asked Payton if she knew the

identity of the shooter. She said she could not be certain because it was dark. Payton

explained that she had some problems with an old roommate, Ware, who was upset

because she made him move out. She repeated that she could not be sure who shot her

because it was dark.

San Bernardino County Sheriff's Deputy Jonathan Cahow spoke with Payton at the

hospital. Cahow asked Payton if she knew who shot her, or if there was anything going

on in her life that would make her think someone wanted to attack her. Payton did not

know who shot her. In response to the second part of his question, she said she recently

had separate issues with Ware and Cage. Payton said Ware was upset because she made

him move out. With respect to Cage, Payton relayed that Cage wanted to date her and

that he had been stalking her for a while. Payton told Cahow about the recent encounter

between Douglas and Cage at the liquor store. Payton also said the shooter was a skinny

African-American male who she thought looked like one of the people in the car with

Cage at the liquor store. Payton did not know why Cage would want to shoot her.

Payton ultimately died as a result of her gunshot wounds. She was shot multiple

times.

At the crime scene, Faylor found three .380 caliber shell casings. One was near

the left side of where the driveway turned, one was found on the passenger side of a

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parked El Camino, and the third was just off the driveway in the dirt. He also found a

.380 caliber bullet. The driver's side trunk of Payton's car was marked by a ricochet from

a bullet.

Douglas suffered two gunshot wounds, but they did not prove fatal. Douglas

initially declined to identify Dunn as the shooter because he intended to retaliate

personally. At the trauma center, he described the shooter as an African-American male

wearing a black hoodie sweatshirt and black pants. He did not identify anyone at that

time. He described an incident with Ware, a former roommate, which occurred a few

days before the shooting. At the hospital, Douglas told law enforcement that the shooter

was "AK" (Ware), and that the second person was too far away to identify.

San Bernardino County Sheriff's Deputy Joseph Steers subsequently searched

Cage's car. Inside of the car, Steers found a baseball cap with the letter "P" on the front.

Steers also found a pair of black gloves in a pouch on the back of the driver's seat.

Steers interviewed Dunn around December 21, 2012. Dunn admitted he was in

the High Desert area around the time of the shooting. Dunn said he did not know Payton,

but he had heard her nickname "Snickers." Dunn admitted he was a Poccet Hood gang

member. Dunn said his gang's rivals included Front Hood, and acknowledged that his

"PK" tattoo stood for Piru killer. At first Dunn denied any involvement in Payton's

murder. His story later changed and he admitted he was present when the murder

occurred. Dunn claimed that he acted as the lookout during the shooting, and denied

being the shooter. Dunn also initially said Duren was not there, but later said Duren was

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in the backseat and then became the getaway driver. Dunn identified both Duren and

Douglas in photographs.

Dunn also explained to Steers the various references to his gang on his Facebook

account, which was under the name "Dig 'Em Dulow." Dunn explained that the post

"FHK," stood for Front Hood Killer. "L36K" meant Largo Varrio 36 Killer, and "AFK"

stood for Acacia Spook Town and Farm Town Killer. Dunn noted that the post, "PH

Gang or don't bang, Fish head hunting, SSKNOT, basking, and ATF killas, knockin'

down Lagos," meant Poccet Hood gang or don't bang. Fish head is a derogatory term for

Front Hood, and Front Hood hunting as well as SSKNOT were disrespecting South Side

Compton Crips. "Phucc 'em all" meant "fuck 'em all" – Crips do not use a "c" and "k"

together because it means Crip killer.

Cage also agreed to be interviewed. Cage told detectives that he drove a 1994

Buick Park Avenue that was unique in color because sometimes it looked grey and other

times blue. Cage said that he and Payton were casual sex partners even though he knew

Payton had a boyfriend from Front Hood. Cage described the encounter with Douglas at

the liquor store as friendly. Cage said Douglas asked Cage where he was from, and Cage

was surprised by this question because everyone knew about Cage and his family's status

with Poccet Hood.

Regarding the day of the shooting, Cage went about his normal activities including

getting off work around 3:00 p.m. and getting home around 4:00 p.m. Cage heard about

the shooting about 30 minutes after it occurred from his cousin. Cage recited two

different stories about where he was when he received the call from his cousin. First, he

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said he was driving in the vicinity of the shooting when he received the call. He then said

he was traveling from Victorville to his aunt's house on Rim Rock, which also was in the

general vicinity of where the shooting occurred.

Cell phone records showed that Cage's cell phone was used in the vicinity of the

murder at the approximate time of the murder.

Los Angeles County Sheriff's Sergeant John Ganarial and Faylor testified as gang

experts. Poccet Hood aka Corner Poccet is a criminal street gang located in Compton

that is associated with the Crips. The common color for the gang was blue, and the

gang's common signs or symbols include the letters "PH" and "PHCC." Poccet Hoods

members often wear Pittsburgh Pirates clothing because of the "P" emblem.

In November 2012, the gang had over 100 members. The gang's geographic area

included Wilmington Avenue on the west, El Segundo to the north, Willowbrook to the

east, and Stockwell to the south. Nord Street was a street that ran through their territory.

Poccet Hood's rivals included Front Hood, Compton Crips, Lagos, and it also did not get

along with any Blood or Piru gangs. Poccet Hood's rivalry with Front Hood was long

standing and at times, could be violent. The gang's primary activities were shootings,

weapons possession, murder, robbery, burglaries, vandalism, and narcotics. Ganarial

discussed three predicate offenses committed by Poccet Hood gang members, a June 7,

2010 robbery; a July 1, 2010 murder; and possession of a firearm on July 4, 2009.

Ganarial viewed photographs of tattoos on Dunn and Cage. The first photograph

was a tattoo on the chest of Dunn of "PK" and "BK," with the "P" and "B" crossed out.

Ganarial explained that Crips often crossed out these letters to show disrespect to the

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Bloods and Pirus. The next tattoo on Dunn was "PHIP" with the "P's" crossed out. The

tattoo meant Poccet Hood In Peace, a sign of respect for the fellow Poccet Hood gang

members who have died. Dunn also had a tattoo that said "Compton Crip" with the "P's"

crossed out. Cage's tattoo's included "Poccet" and "CC," and "Nord Street" on his arms.

Faylor opined that Cage and Dunn were both Poccet Hood gang members.

Faylor explained the importance of respect and reputation in gangs. Faylor opined

that the crimes in this case were committed for the benefit of and in association with a

criminal street gang. There were two gang members from the same gang, and it benefited

the gang because it boosted their reputation, and placed fear and intimidation in the

community and as to rival gangs.

Faylor also testified that there was a problem with gang cases and gang members

testifying against each other. Faylor explained that Douglas's testimony regarding

wanting to retaliate himself and not get law enforcement involved was normal in the gang

culture. The prosecutor asked Faylor if Duren had a reason to not want to testify against

Cage and Dunn. Faylor said, yes, because Duren felt like a snitch and was fearful.

Faylor opined that as he watched Duren on the witness stand, Duren appeared afraid.

Faylor observed Duren looking at the prosecutor and answering the questions, and then

looking at Cage and Dunn and backpedaling and claiming either he did not know the

answer, or that he gave a false statement. In addition, when Faylor transported Duren

back to custody after he testified, Duren expressed how terrified he was of Cage and

Dunn.

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 Defense

At trial, Appellants focused on the prosecution's failure to prove its case. To this

end, they both pointed out that the prosecution's key percipient witnesses, Douglas and

Duren, were not credible.

For example, Douglas never told the police that Cage was the shooter. When

Douglas received treatment at the trauma center after he was shot, Douglas described the

shooter as a black male wearing a black hoodie and black pants. He told the officer he

could see another person, but he was too far away to identify the person.

Contrary to his trial testimony, Douglas had previously told a couple people that

the shooter was Ware. Ware was a former roommate of Douglas and Payton. He also

explained that on Thanksgiving, he had an altercation with Ware after discovering Ware

stole things in the house. Douglas wanted Ware out of the house and told him he had to

leave. After the fight, Ware told Douglas: "It ain't over. . . . You ain't the only one with

guns. I got guns, too." Douglas told the police about the incident with Ware and said

Ware was the person who shot Payton and Douglas.

After Douglas told the police that Ware was the shooter, Ware was arrested.

Douglas admitted that did not want the shooter apprehended because he wanted to

personally retaliate. Douglas also testified that he talked about the incident with Ware,

and after doing so, he told the police that the shooter was Dunn.

At trial, Appellants also emphasized that Duren testified that he was lying when he

told detectives that he rode with Appellants in Cage's car to "take care of business" with

Douglas and Payton and served as the getaway driver. Instead, Duren said that he was

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pressured to tell the detectives that he played a role in Payton's murder because he wanted

to avoid a prison sentence of 50 years to life, which is what he claimed law enforcement

told him he would receive if he did not testify at Appellants' trial. During cross-

examination, Duren testified that he was not present during the shooting, had no idea

what happened or the identity of the shooter, or if either Cage or Dunn was involved.

DISCUSSION

I

THE ADMISSION OF WARE'S HEARSAY STATEMENTS

During cross-examination of Douglas, Dunn's trial counsel established that

Douglas had talked to Ware on the telephone after Payton was killed. Dunn's counsel

asked Douglas about the content of that conversation. Douglas replied, "He told me that

he didn't have nothing to do with it. He said he didn't have nothing to do with the

shooting." Cage's trial counsel objected on hearsay grounds. The trial court overruled the

objection, stating, "He's answering counsel's question. And that question called for

hearsay, but he nevertheless asked it. I'm going to let it in." Douglas admitted that after

this conversation with Ware he implicated Cage and Dunn in Payton's and Douglas's

shooting.

Douglas's testimony about what Ware said to him during their telephone

conversation is hearsay. It was an out-of-court statement offered for the truth of the

matter that Ware was not the shooter. (See Evid. Code, §1200, subd. (a).) Indeed, the

trial court admitted as much, but inexplicably allowed the evidence to be admitted over

objection. At trial, there was no discussion of any exception that would allow this

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hearsay to be properly admitted. The People offer no argument that the evidence was

admissible beyond their contention that Dunn's trial counsel asked the question that

elicited the hearsay. Finding no exception that would allow Douglas's testimony about

what Ware said to be admissible, we determine that the court abused its discretion in

overruling Cage's trial counsel's hearsay objections. (See People v. Alvarez (1996) 14

Cal.4th 155, 201.)

Having found error, we next consider whether it was prejudicial. If admission of

the hearsay statements violated a state statute alone, we apply the standard articulated in

People v. Watson (1956) 46 Cal.2d 818, and reverse only if there is a reasonable

probability of a result more favorable to the defendant in the absence of the error.

(People v. Duarte (2000) 24 Cal.4th 603, 618-619 [Watson standard applicable to state

law error in admission of hearsay].) If, on the other hand, the error violated Appellants'

confrontation clause rights, we must determine whether the error was harmless beyond a

reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Cage and Dunn both claim that admission of Douglas's testimony regarding

Ware's statement violated their constitutional rights to a fair trial. The People counter,

arguing Appellants waived their constitutional claim of a denial of confrontation by

failing to make that specific objection at trial. We need not resolve this dispute because

we determine that the subject error was harmless under either the Chapman or Watson

standard.

There was strong evidence that Dunn was the shooter. Although Douglas initially

said it was Ware, he admitted it was actually Dunn and testified accordingly at trial.

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Duren's account of what happened that night corresponded with Douglas's trial testimony.

During an interview with Steers, Dunn acknowledged he was at the scene, but he

minimized his participation in the crimes. Dunn corroborated Duren's statements about

Duren first being in the backseat of the car, and then being the getaway driver.

Before she died, Payton told Cahow that the shooter looked like the person who

was in the car when Douglas had the encounter with Cage at the liquor store. Dunn was

in the backseat of Cage's car that day. Shell casings found at the scene were .380 caliber;

the same caliber of the gun possessed by Dunn when he got out of and returned to the car.

Duren's description of what Dunn was wearing, a black hoodie, was corroborated by

Douglas's testimony.

As with Dunn, the evidence of Cage's guilt is compelling. Douglas also was a

rival gang member of Cage. The two had several recent hostile encounters leading up to

the shooting, including Cage parking his car in front of Douglas and Payton's house,

Cage challenging Douglas at the liquor store, and Cage repeatedly driving in a

threatening manner. In addition, there is evidence that Cage had some type of

relationship with Payton. Payton told police that Cage wanted to date her and had been

stalking her. Cage claimed that they had been lovers.

Cage's accomplice, Duren, directly implicated Cage (as well as Dunn) in the

shooting. Further, a neighbor saw a car similar to Cage's leaving the scene with its lights

off, implying that the driver was trying to avoid detection, and Cage's cell phone records

placed him near the site of the shooting around the time of the shooting. Finally, the fact

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that Cage and Dunn are members of the same gang and hung out together further

implicated both of them in the crimes.

The overwhelming evidence established that Dunn was the shooter and Cage aided

and abetted Dunn in killing Payton and shooting Douglas. As such, any error in

admitting Ware's statements was harmless beyond a reasonable doubt.

Similarly, we are not persuaded by Dunn's claim that his trial counsel was

ineffective because he did not request a limiting instruction prohibiting the jury from

considering Ware's statements for the truth of the matter asserted. To show that trial

counsel's performance was constitutionally defective, an appellant must prove:

(1) counsel's performance fell below the standard of reasonableness, and (2) the

"deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466

U.S. 668, 687 (Strickland).) Competency is presumed unless the record affirmatively

excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313,

349 (Ray); People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) We reverse on the

ground of inadequate assistance on appeal only if the record affirmatively discloses no

rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12

Cal.4th 415, 436-437 (Lucas); see Ray, supra, at p. 349.)

Dunn's claim of ineffective counsel arises from his trial counsel's failure to request

a limiting jury instruction. However, we generally defer to the tactical decisions of trial

counsel. (See People v. Scott (1997) 15 Cal.4th 1188, 1212; People v. Holt (1997) 15

Cal.4th 619, 703.) "[T]here is a 'strong presumption that counsel's conduct falls within

15
the wide range of reasonable professional assistance.' " (Lucas, supra, 12 Cal.4th at

p. 437, quoting Strickland, supra, 466 U.S. at p. 689.)

In his opening brief, Dunn suggests his counsel may have asked Douglas about the

content of his telephone conversation with Ware for the nonhearsay purpose of trying to

show that although Douglas believed Ware was the shooter, the two had reached an

agreement to blame someone else to allow Douglas and Ware to settle the matter on their

own. Although Douglas's testimony ultimately did not support Dunn's trial counsel's

theory of defense, it was the trial counsel's strategic decision to make as to the

appropriate extent of cross-examination. (See People v. Freeman (1994) 8 Cal.4th 450,

490.)

Also, it may very well be that Dunn's trial counsel had a solid, tactical reason for

not requesting a limiting instruction. Although counsel's question called for hearsay,

counsel may have been expecting a different answer. Request for a limiting instruction

may have called undue attention to Ware's statement. "A 'reasonable attorney may have

tactically concluded that the risk of a limiting instruction . . . outweighed the questionable

benefits such instruction would provide.' " (People v. Hernandez (2004) 33 Cal.4th 1040,

1053, quoting People v. Maury (2003) 30 Cal.4th 342, 394.) On the record before us, we

simply cannot reach the conclusion that no rational tactical purpose existed for Dunn's

trial counsel's failure to ask for a limiting instruction. (Lucas, supra, 12 Cal.4th at

pp. 436-437; Ray, supra, 13 Cal.4th at p. 349.)

Additionally, even if we were to find that Dunn's trial counsel's representation of

Dunn was deficient, Dunn's claim of ineffective counsel fails because he cannot show

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prejudice. As we discuss above, the evidence against Dunn was extremely strong and the

admission of Ware's hearsay statements did not prejudice his defense.

II

THE EXPERT WITNESS'S OPINION THAT DUREN WAS AFRAID

Appellants claim that the trial court prejudicially erred when it permitted Faylor to

testify that Duren was afraid of Appellants and scared to testify. We agree that the trial

court erred in allowing Faylor to testify regarding Duren's fear of Appellants and

testifying, but such error was harmless.

At trial, the prosecutor asked Faylor whether there was a reason why Duren "may

or may not have wanted to testify against Mr. Cage and Mr. Dunn." Dunn's trial counsel

objected on grounds of speculation and lack of foundation when Faylor responded:

"Absolutely, I think that in Mr. Duren's case he is more fearful,
feeling like a snitch. It's said many times the saying 'Snitches get
stitches,' or 'Snitches get stitches or end up in ditches.' And they
kind of live by that code. As a codefendant initially in the case, he
really felt as a snitch that he was going to tell the truth and tell on
other people that participated in the crime with him. And as he — as
I sat here and watched him on the stand, he was deathly afraid."

The trial court overruled the objection and stated that this was "an opinion of a

gang expert." Then the prosecutor asked Faylor to elaborate further. Faylor responded:

"My personal opinion was — during [Duren's] testimony I was
seated directly behind the defendants, and what I noticed was as he
would be direct with you and answer your questions. . . . He would
answer those questions. The second that he would look over to the
defendants and make eye contact with them is when he would
backpedal and start to say, I don't know. I said those things but they
were false statements. And I watched that interaction between you,
[the prosecutor], and as he looked over to the defendants becoming
scared. That evening I transported Mr. Duren back to the jail and we

17
 had a discussion about that. And he told me how terrified he was of
the defendants Marvin Cage and Tobias Dunn."

The People argue that the trial court did not err in admitting Faylor's opinion,

likening the instant matter to People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez). The

People's reliance on that case is misplaced.

In Gonzalez, the expert witness "merely answered hypothetical questions based on

other evidence the prosecution presented, which is a proper way of presenting expert

testimony." (Gonzalez, supra, 38 Cal.4th at p. 946.) The court noted "[t]he witness did

not express an opinion about whether the particular witnesses in this case had been

intimidated." (Id. at p. 947.) Here, in contrast, Appellants do not complain about Faylor

offering an opinion in response to hypothetical questions. Instead, Appellants emphasize

that Faylor offered an opinion that a specific witness (Duren) was afraid of Cage and

Dunn and afraid to testify against them. As such, Appellants contend Faylor's opinion

implied that Duren was lying when he stated he was not with Appellants when Payton

and Douglas were shot. We agree that Faylor was not providing an opinion based on a

hypothetical question, but instead, offered his opinion based on his observation of a

specific witness at trial. Gonzalez therefore is inapplicable.

A gang expert may testify on the culture and habits of criminal street gangs.

(Gonzalez, supra, 38 Ca1.4th at p. 944; People v. Ward (2005) 36 Ca1.4th 186, 210-211.)

For example, a gang expert may render a general opinion regarding the gang practice of

intimidating any gang member willing to testify at a criminal trial. (Gonzalez, supra, at

pp. 944-945.) From this kind of gang culture testimony, a jury may infer that a particular

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gang witness who has changed his story is lying. (Id. at p. 947.) However, an expert

witness may not testify about a specific witness at trial and ultimately offer an opinion

about his or her credibility. (See People v. Vang (2011) 52 Cal.4th 1038, 1047

["Obviously, there is a difference between testifying about specific persons and about

hypothetical persons."].)

We see little difference between an expert witness offering an opinion that states

that a specific witness was afraid to testify and thus lying during his testimony and

offering an opinion as to the guilt of a defendant. "A witness may not express an opinion

on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the

ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue.

[Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of

no assistance to the trier of fact. To put it another way, the trier of fact is as competent as

the witness to weigh the evidence and draw a conclusion on the issue of guilt.' " (People

v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)

Here, Faylor's opinion that Duren was afraid to testify as well as Faylor's

explanation that Duren was lying during trial was not helpful to the jury. The jury is as

competent as Faylor to weigh the evidence and determine if Duren was credible. Indeed,

this is the jury's role. (See People v. Jones (1990) 51 Cal.3d 294, 314 [At trial, "it is the

exclusive province of the . . . jury to determine the credibility of a witness and the truth

and falsity of the facts on which that determination depends."].) Thus, we determine that

the trial court abused its discretion when it allowed Faylor to testify directly that Duren

was afraid of Appellants and was afraid to testify against them.

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 Ironically, however, because Duren was so obviously afraid of Appellants and

testified as such, we conclude Faylor's improperly admitted opinion was not prejudicial.

When Duren first began to testify at trial, he admitted that he was scared to testify and did

not want to be a witness. He explained that he was worried that he would "either get beat

up or killed" for testifying. Then, on direct examination, Duren acknowledged that he

told the detective that he was the driver of Cage's car and was with Appellants on the date

Payton and Douglas were shot. He also admitted that he told the detective that

Appellants had guns, exited the car with those guns, Duren heard shots fired, and

Appellants returned to the car and Duren drove away with them. However, he told the

prosecutor that he was lying when he provided his statement to the detective. Duren then

admitted that if he testified at trial and affirmed what he had told the detective then he

could be "beat up or killed."

On cross-examination, Duren then said he was only testifying to avoid a longer

sentence and he had no idea who shot Payton or Douglas.

On redirect examination, Duren admitted that in gang culture, he would "get hurt

real bad" if he identified the shooter at trial. He then admitted that he could possibly be

killed if he admitted what he told the detective was true. Later, during redirect, Duren

appeared to admit he was in Cage's car and with Appellants on the date in question or, at

the very least answered questions agreeing as to what he told the detective, but he asked

to stop his testimony because he was too tired to continue.

Duren eventually testified later in the trial, but his testimony was less than clear.

20
 Even in reviewing a cold record, it is apparent that Duren did not want to testify

and was afraid regarding what could happen to him if he identified either Cage or Dunn

as the shooter. In this sense, Faylor's testimony simply amplified what was happening at

trial. Although we agree with Appellants that the trial court should not have admitted

Faylor's opinion that Duren was afraid of Appellants, Duren's own testimony (some of

which was erratic) convincingly establishes that he was indeed afraid to testify against

Appellants. Therefore, we do not find that Appellants were prejudiced by the admission

of Faylor's opinion.3

III

SUBSTANTIAL EVIDENCE

Cage next argues the evidence was insufficient to support his conviction as an

aider and abetter for murder and attempted murder. We disagree.

We apply a substantial evidence standard of review to assess the sufficiency of the

evidence. We review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence–that is, evidence that is reasonable,

credible, and of solid value–from which a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We

presume in support of the judgment the existence of every fact that could reasonably be

deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask

3 Because we determine Appellants were not prejudiced, we reject Cage's claim that
his trial counsel was prejudicially ineffective for failing to object on constitutional
grounds to Faylor's testimony.
21
whether, after viewing the evidence in the light most favorable to the judgment, any

rational trier of fact could have found the allegations to be true beyond a reasonable

doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.)

"[A] person who aids and abets a crime is guilty of that crime even if someone

else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th

1111, 1117.) " 'A person aids and abets the commission of a crime when he . . . (i) with

knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose

of committing, facilitating, or encouraging commission of the crime, (iii) by act or

advice, aids, promotes, encourages or instigates the commission of the crime.' " (People

v. Hill (1998) 17 Cal.4th 800, 851.)

"It is important to bear in mind that an aider and abettor's liability for criminal

conduct is of two kinds. First, an aider and abettor with the necessary mental state is

guilty of the intended crime. Second, under the natural and probable consequences

doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any

other offense that was a "natural and probable consequence" of the crime aided and

abetted.' [Citation.] Thus, for example, if a person aids and abets only an intended

assault, but a murder results, that person may be guilty of that murder, even if

unintended, if it is a natural and probable consequence of the intended assault." (People

v. McCoy, supra, 25 Cal.4th at p. 1117.) Factors relevant to whether a defendant is guilty

of aiding and abetting can include his presence at the scene of the crime, companionship,

and conduct before and after the offense. (See People v. Hill, supra, 17 Cal.4th at pp.

851-852; In re Juan G. (2003) 112 Cal.App.4th 1, 5.)

22
 Here, the prosecution presented ample evidence showing Cage knew Dunn

intended to shoot Douglas and Payton, and that Cage intended to and did encourage or

facilitate Dunn in committing the crimes. Cage and Dunn were members of the same

gang, and they had a long standing violent rivalry with Front Hood gang members. A

few days before the crimes, Cage and Dunn encountered rival gang member Douglas at a

liquor store. Cage said to Dunn, "He's one of them boys." Cage then challenged Douglas

by asking "where are you from," and then telling Douglas, "You know where I'm from.

I'm from Poccet Hood. They call me Monster." Douglas went about his business and

returned to his car. As Douglas was driving, Cage started following him in his car and

acted like he was going to hit him. A few days later, when Cage was driving the opposite

direction of Douglas, Cage swerved, again acting like he was going to run into Douglas.

The night of the crime, Cage was again driving with Dunn in the front passenger

seat. Both were armed with handguns, and Cage knew where Douglas lived. They drove

to Douglas's house to "take care of business." Cage and Dunn approached the driveway,

and as Cage stood lookout, Dunn continued up the driveway, shooting Douglas and

Payton. Cage and Dunn then returned to Cage's car, with guns in their hands, and Duren

drove them away.

In addition, expert testimony regarding gangs showed that respect is highly

important to gang members and is earned by committing crimes such as assaults,

stabbings, and shootings on behalf of the gang. Gang members commit these crimes

against people who disrespect them. By committing the crimes in association with one

23
another, Cage and Dunn promoted their reputation, within the gang and in the

community.

Thus, substantial evidence established that Cage had the requisite intent to aid and

abet Dunn in committing the murder and attempted murder. The Poccet Hood gang

members were violent rivals of Front Hood gang member Douglas. Shortly after Douglas

disrespected Cage at the liquor store, Cage drove to Douglas's house, and stood armed

with a nine-millimeter handgun as lookout while Dunn, who had a .380, did the actual

shooting. The two then fled the crime scene together. Based on this evidence, the jury

could reasonably conclude that Cage and Dunn were on a mission to kill a rival gang

member and his fiancé, and Cage served as the lookout for his fellow gang member.4

IV

STREET TERRORISM JURY INSTRUCTION

Dunn contends the trial court prejudicially erred in instructing the jury concerning

the elements of street terrorism under the February 2013 version of the standard

CALCRIM No. 1400 on the ground it did not require the jury to find at least two gang

members of the same gang must have participated in the felony offense to find him

guilty. Dunn concedes his trial counsel did not object to CALCRIM No. 1400 or request

any clarifying instruction.

4 Cage also contends that if we found the evidence insufficient to support his
conviction for murder and attempted murder then we should reverse his conviction for
street terrorism as well. Because we find substantial evidence supports Cage's
convictions for murder and attempted murder, we need not address his argument that we
reverse his street terrorism conviction.
24
 By failing to object to or request a specific jury instruction at trial, Dunn forfeited

this claim on appeal, unless the claimed error affected Dunn's substantial rights. (See

§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether

claimed instructional error affected the substantial rights of the defendant necessarily

requires an examination of the merits of the claim—at least to the extent of ascertaining

whether the asserted error would result in prejudice if error it was." (People v. Andersen

(1994) 26 Cal.App.4th 1241, 1249.) We conclude that Dunn has not shown that the

claimed error affected his rights; thus, he has forfeited his claim.

We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial

court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163

Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving

jury instructions, we consider the instructions as a whole and assume jurors are intelligent

persons, capable of understanding and correlating all jury instructions which are given.

(Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment

rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)

"The crucial assumption underlying our constitutional system of trial by jury is that jurors

generally understand and faithfully follow instructions." (People v. Mickey (1991) 54

Cal.3d 612, 689, fn. 17.)

Here the court instructed the jury under former CACLCRIM No. 1400 as follows:

"The defendants are charged in Count 3 with participating in a
criminal street gang in violation of Penal Code Section 186.22(a).

25
 "To prove that the defendants are guilty of this crime, the People
must prove that,

"1. The defendants actively participated in a criminal street gang;

"2. When the defendants participated in the gang, they knew that the
members of the gang engage in or have engaged in a pattern of
criminal activity; and

"3. That the defendants willfully assisted, furthered, or promoted
felonious conduct by members of the gang either by:

"(a) directly and actively committing a felony offense; or (b) aiding
and abetting a felony offense.

"Active participation means involvement with a criminal street gang
in a way that is more than passive or in name only."

Dunn and Cage committed the crimes in November 2012, and the trial

commenced on January 27, 2014. The trial court instructed with the February 2013

version of CALCRIM No. 1400.

In August 2013, the Judicial Council revised the instruction and, as relevant here,

added the paragraph, "At least two gang members must have participated in committing

the felony offense. The defendant may count as one of those members if you find that the

defendant was a member of the gang." (CALCRIM No. 1400 (Aug. 2013 supp.).) In

February 2014, the Judicial Council modified the first sentence to read, "At least two

members of that same gang must have participated in committing the felony offense."

(CALCRIM No. 1400 (2014).) Dunn's claim of error is based on the 2014 version of the

instruction.

However, CALCRIM No. 1400, as given in the instant matter, correctly informed

the jury that to find Appellants guilty of street terrorism (§ 186.22, subd. (a); count 3), it

26
had to find that Appellants had willfully assisted, furthered, or promoted felonious

criminal conduct by members of the gang either by (1) directly and actively committing a

felony offense or (2) aiding and abetting a felony offense. In other words, the word

"members" required that each of the Appellants' actions be in connection, in some way,

with another gang member. The instruction followed the statutory language for active

participation in a criminal street gang.5 It was correct statement of the law. Accordingly,

no instructional error occurred.

Moreover, we are not persuaded by Dunn's argument that the subject jury

instruction allowed the jury to convict the Appellants contrary to People v. Rodriguez

(2012) 55 Cal.4th 1125. In that case, our high court concluded "with section 186.22(a),

the Legislature sought to punish gang members who acted in concert with other gang

members in committing a felony regardless of whether such felony was gang related."

(Rodriguez, supra, at p. 1138, italics omitted.) This court followed Rodriguez to reverse

a defendant's conviction for street terrorism when there was insufficient evidence that the

defendant engaged in felonious criminal conduct with a member of the defendant's gang.

(People v. Velasco (2015) 235 Cal.App.4th 66, 76-78.) We are satisfied that Appellants'

convictions for street terrorism do not raise any of the concerns present in Rodriquez or

Velasco.

5 Section 186.22, subdivision (a) provides: "Any person who actively participates
in any criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by imprisonment in
the state prison for 16 months, or two or three years."
27
 Here, the evidence plainly established Dunn committed the crimes in concert with

his fellow Poccet Hood gang member Cage. Further, the gang expert explained that the

crimes were committed in association with a criminal street gang because Cage and Dunn

were both Poccet Hood gang members. As such, we are not concerned that the jury could

have convicted Cage and Dunn for street terrorism without finding that they each

committed felonious conduct with another member of their gang.

Against this backdrop, even if we were to conclude the instruction given was

improper, we would not reverse the Appellants' convictions. Instructional error requires

reversal only if it is reasonably probable that the result would have been more favorable

had the court given the revised version of CALCRIM No. 1400. (People v. Lawley

(2002) 27 Cal.4th 102, 161 [failure to give revised version of CALJIC No. 3.18 held

harmless under the Watson standard].) The evidence overwhelmingly established that

both Cage and Dunn committed their felonies in connection with each other and both are

members of the same gang. Therefore, it is not reasonably probable Dunn or Cage would

have achieved a more favorable result if the court had given the additional paragraph in

the revised CALCRIM No. 1400.

V

APPELLANTS' RESPECTIVE SENTENCES

Lastly, Appellants contend, and the People correctly concede, the trial court erred

by imposing a 15-year minimum parole eligibility period under section 186.22,

subdivision (b)(5), on count 2 because the jury did not find that either Dunn or Cage

personally used or discharged a firearm in the commission of the offense. We agree.

28
 The trial court sentenced Appellants on count 2 to an alternative term of 15 years

to life for the attempted, premeditated murder conviction pursuant to the jury finding that

the crime was committed in furtherance of a street gang as set forth under section 186.22,

subdivision (b)(5). As to Cage, this was tripled by virtue of his two prior strikes, to 45

years to life. As to Dunn, the 15 years to life was doubled because of his prior strike.

The trial court also imposed on both Appellants a term of 25 years to life on count 2 for

the jury's finding that a principal personally and intentionally discharged a firearm,

causing death to the victim.

As Appellants argue, the trial court erred by imposing both the firearm use

enhancement under section 12022.53, subdivision (d) and (e)(1), and the gang alternative

penalty under section 186.22, subdivision (b)(5), because there was no finding that either

Cage or Dunn personally used or personally discharged a firearm. (People v. Brookfield

(2009) 47 Cal.4th 583, 590 (Brookfield).)

Under section 12022.53, subdivision (e)(2), a defendant who does not personally

use a firearm cannot be punished under both section 186.22 and section 12022.53. In

choosing which of those two provisions to apply, the trial court must, consistent with

section 12022.53's subdivision (j), choose the provision that will result in a greater

sentence. (Brookfield, supra, 47 Cal.4th at pp. 596-597.) Here, the court erred by

sentencing Appellants under both sections. We thus remand the matter back to the

superior court for resentencing.

29
 DISPOSITION

The judgment of conviction as to Dunn is affirmed. Regarding Dunn's sentence,

the matter is remanded to the superior court with directions to resentence Dunn consistent

with this opinion.

The judgment of conviction as to Cage is affirmed. Regarding Cage's sentence,

the matter is remanded to the superior court with directions to resentence Cage consistent

with this opinion.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McINTYRE, J.

30