P. v. Ruiz

Filed 11/28/05 P. v. Ruiz CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. ALFREDO RUIZ, Defendant and Appellant.

B166366 (Los Angeles County Super. Ct. No. SA043484)

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven Van Sicklen, Judge. Affirmed as modified.

Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Alfredo Ruiz was charged with and convicted of attempted premeditated murder (count 1) and shooting a firearm from a motor vehicle (count 2). He contends on appeal that: (1) The prosecutor committed misconduct by eliciting testimony that used the words “arson” and “Molotov cocktail,” in violation of a ruling by the trial court. (2) Prejudicial jury misconduct occurred when a juror belatedly realized that she was slightly acquainted with one of the witnesses. (3) There should have been an evidentiary hearing on whether the other jurors were tainted by the misconduct. (4) Evidence of gang graffiti was improperly admitted. (5) There was insufficient evidence of attempted murder. (6) The jury was inadequately instructed on the gang enhancement. (7) There was insufficient evidence for the gang enhancement. (8) The judgment must be reversed for cumulative error. (9) The 25-year-to-life sentence enhancement which was imposed for discharge of a firearm was unconstitutional as cruel and unusual punishment. (10) Count 2 must be stayed pursuant to Penal Code section 654.^[1]

We stay the sentence on count 2, and otherwise affirm.

PROCEDURAL HISTORY

Count 1 of the amended information charged appellant with attempted premeditated murder. Count 2 alleged that he discharged a firearm from a motor vehicle. Both counts included firearms and criminal street gang allegations. The jury found appellant guilty as charged. He was sentenced on count 1 to 15 years to life for attempted murder, plus 25 years to life for firearms discharge (§ 12022.53, subd. (d)), for a total of 40 years to life in state prison. A concurrent sentence was imposed on count 2. This appeal followed.^[2]

FACTS

1. Prosecution Evidence

On the evening of September 6, 2001, Fernando Gonzalez drove with his friend Nicole to Eucalyptus Avenue, in a residential section of Hawthorne, to purchase a bag of marijuana.^[3] Gonzalez got out of the car. Nicole stayed in it. Gonzalez walked up to two male African-Americans he knew, who were standing in front of a house.^[4] He noticed that two male Hispanics with shaved heads were sitting in a white Ford Explorer which was parked across the street.

Gonzalez purchased a bag of marijuana from his two friends. The Explorer drove up next to them. Appellant was in its passenger seat. He stuck his head out of the window and inquired, “Where you vatos from?” Gonzalez understood that appellant was asking for his gang affiliation. He and one of his friends answered, “Nowhere,” which meant that they were not gang members. Appellant pulled out a 12-inch “Tec-9” semiautomatic weapon and started shooting. Two bullets flew by Gonzalez’s face, and he heard multiple shots. He turned, ran, and found cover between a wall and a building. The shooting stopped, and the Explorer drove away.

Two of the gunshots struck Gonzalez. One bullet went through his leg. The other entered his back above his buttocks. It hit his liver and later was surgically removed from his chest. He continued to suffer pain at the time of the trial.

A resident of Eucalyptus Avenue happened to be outside her house that evening. She saw the Explorer approach three Black men and a Caucasian male with a ponytail (Gonzalez). She heard gunfire. Gonzalez told her that he had been shot, and she dialed 911.

At the trial, Gonzalez was certain that appellant was the shooter. However, when he was shown a photographic lineup (six-pack) at the Hawthorne Police Department on September 26, 2001, he did not initially identify appellant’s photo. The investigating officer, Detective Peter Goetz, took back the six-pack and started to type up his report. Gonzalez asked to see the pictures again, and identified appellant’s photo at that point. According to Gonzalez, he had recognized appellant’s photo when he first saw it, but did not initially tell that fact to Goetz because he feared that he or his family would be harmed. He asked to see the six-pack again, and identified appellant, because he really did recognize him. He also identified appellant when he saw him in person at the preliminary hearing.

On cross-examination, Gonzalez admitted that, about two hours before he drove to Eucalyptus Avenue, he had smoked a marijuana cigarette while at a motel with Nicole. He also had smoked another marijuana cigarette before he went to the motel. However, he denied that he still felt the effect of the marijuana when he arrived at Eucalyptus Avenue. He also testified that he had been a gang member when he was younger, but was not in a gang at the time he was shot.

Goetz made inquiries at the Lennox Sheriff’s Station regarding a white Explorer. By coincidence, on the night before Gonzalez was shot, Sheriff’s Deputy Douglas Lockwood had conducted a traffic stop of appellant, who was driving such a vehicle. Appellant gave Lockwood his name. He said he belonged to the Lennox 13 gang and had borrowed the vehicle from his girlfriend’s father. Lockwood noted the Explorer’s license number and sent appellant on his way, with a warning.

Lockwood contacted Goetz. Looking at a six-pack, he identified appellant as the person he had stopped in the Explorer. With the license plate information from Lockwood, Goetz learned that the Explorer was leased to a person named Walter Franco.

The evening of September 7 (the day after the shooting), the fire department extinguished a fire in the Explorer. It was parked at the curb on a street in Hawthorne, not far from appellant’s home. There was no sign of a collision, and nobody came forward to claim it. The fire department suspected arson. The Explorer was impounded. When its contents were later examined by Goetz and his partner, they found “what appeared to [them] to be remnants of a Molotov cocktail.”^[5]

Goetz told Sandra Franco, the wife of Walter Franco, that she was under investigation for fraud, but he would talk to the prosecutor if she cooperated with him. She showed him a check made out to appellant. As a gang investigator, Goetz had had prior contacts with appellant. In particular, Goetz had transported appellant to court when appellant was a witness at a trial, after he was the victim of a drive-by shooting.

A search warrant was obtained for appellant’s home. The walls of his bedroom were covered with graffiti about the Lennox 13 gang. The police found a shotgun cleaning kit, but no firearm. He was later arrested pursuant to an arrest warrant.

Twelve spent shell casings were recovered at the crime scene. They were fired by a “TEC-DC9” semiautomatic pistol, which was subsequently located at the Lennox Sheriff’s Station. Gonzalez believed the weapon looked like the one that shot him. The bullet recovered from his body was fired from a similar weapon. However, the weapon found at the sheriff’s station was not specifically linked to appellant.

Goetz testified as a gang expert. He said the primary activities of the Lennox 13 street gang included narcotics transactions, gambling, robberies, drive-by shootings, and homicide. Freddie Herrera, a member of the gang, was convicted in 2000 of an assault with a deadly weapon on a rival gang member. Another gang member, Steven David Alvarez, Jr., murdered a rival gang member in a car-to-car shooting. Court records were introduced that verified Alvarez’s conviction for murder and shooting at an occupied vehicle.

Goetz further explained that, although Lennox was the primary territory of the Lennox 13 gang, the gang had been expanding south into Hawthorne in recent years. Its members were predominantly Hispanic. The territory where Gonzalez was shot was claimed by a different gang, the 118 Eucalyptus Gangster Crips, whose members were primarily African-American. The efforts of the Lennox 13 gang to claim the other gang’s territory was causing ongoing gang warfare. Four days after Gonzalez was shot, new gang graffiti appeared on a building a block from the crime scene. It consisted of a profanity about African-Americans, the words “Lennox 13,” and an arrow which pointed down towards the ground. In Goetz’s opinion, the graffiti was a reference to the Gonzalez shooting, as the Lennox 13 gang was claiming the territory and insulting its enemy, the African-American gang.

It was also Goetz’s opinion that Gonzalez was shot for the benefit of, in association with, or at the direction of a criminal street gang. The crime was a classic drive-by shooting involving rival gangs who disputed territory. The question, “Where you from?” is a common challenge from a gang member that will lead to a gang attack, regardless of the response. The facts that the person who was actually shot was Caucasian and not a member of the rival gang would not be important to the gang.

Appellant’s sister, Sandra Ruiz (Sandra), testified that appellant lived at her home in September 2001. He belonged to the Lennox 13 gang and used the moniker “Sniper.” Sandra had a friend named Miriam Higareda whose sister, Sandra Franco, was married to Walter Franco. In early September 2001, Miriam drove the white Explorer to the home of appellant and Sandra. Miriam asked appellant, in Sandra’s presence, “if he knew somebody that could get rid of the car.” She offered to pay $200 for that act. Appellant said “he knew somebody that could do it.” Miriam dropped Sandra off at work and drove off with appellant. Appellant had possession of the Explorer for two or three days after that. About 6:00 p.m. one day, Sandra saw it burning, around the corner from their house. Around 4:00 p.m. that day, it had been parked in front of the house, while appellant was at home. Either appellant or Miriam again told Sandra that Miriam paid appellant $200 for disposing of the car.

2. Defense Evidence

Appellant testified that he was 20 years old and had been a member of the Lennox 13 gang for five years. He had previously pleaded guilty to battery and to possession of methamphetamine. He took the moniker “Baby Sniper” because an older cousin had previously used that name.

Appellant described in detail how he set fire to the Explorer, and was thereafter paid $200, so that Miriam’s sister could avoid lease payments.^[6] He confirmed that he was stopped by the sheriff’s deputies while driving the white Explorer on the day before Gonzalez was shot. However, he denied that he shot Gonzalez. He had possession of the Explorer for two or three days, but did not recall where he was or what he was doing on the evening of the shooting. His usual activities were to “hang out” with friends, go to the park, play basketball, drink alcohol, and “get high.” He guessed that he drove the Explorer to get to his friends’ location and to drive home afterwards on the night Gonzalez was shot.

DISCUSSION

1. Prosecutorial Misconduct

Appellant argues that the trial court should have granted his motion for mistrial, which was made on the ground the prosecutor improperly elicited testimony from Goetz that (1) arson investigators told Goetz that the fire in the Explorer was caused by “arson,” and (2) Goetz found what appeared to him to be a Molotov cocktail inside the burned vehicle. We find no misconduct and, assuming misconduct, no prejudice.

A. The Record

Since the parties dispute the existence and nature of trial court rulings about the words “arson” and “Molotov cocktail,” we summarize the record in some detail.

Prior to the opening statement, defense counsel, Mr. Donoghue,^[7] asked that the prosecutor not mention arson, as there was evidence that the Explorer was burned, but not of “an actual arson.” The prosecutor, Ms. Flood, explained that Goetz would testify that he saw something inside the burned Explorer “which appeared to be a Molotov-type cocktail.”^[8] She argued that Goetz’s observations were relevant, even though appellant was not charged with arson. She then promised not to tell the jury that an arson occurred, but to simply state “that the car was found burned and a short distance from the defendant’s home.” The judge and Donoghue responded, “Okay.” Flood’s opening statement complied with her promise.

It should be noted that while Flood agreed not to say “arson,” there was no specific ruling either about the word “arson” or the words “Molotov cocktail.”

During the trial, Donoghue sought to preclude testimony from Sandra that she was present when Miriam told appellant that she was willing to pay $200 to anyone who would “strip the Ford Explorer.” Donoghue argued that it was irrelevant whether appellant committed arson insurance fraud. Also, if this was to be an arson trial, a witness from the crime laboratory would testify that no incendiary device was found in the Explorer. The judge said he thought that a Molotov cocktail was involved. He cautioned that if there was a concern with hearsay from Sandra, “somebody ought to coach her.” Flood maintained that Sandra could properly testify about what Miriam said about the arson conspiracy, before and after the Explorer was burned. The judge ruled that what Sandra heard Miriam say was admissible either to explain appellant’s admissions to Miriam or under the coconspirator exception to the hearsay rule, based on an uncharged insurance fraud.

Sandra then testified that (1) she heard Miriam offer appellant $200 to destroy the Explorer, and (2) after the Explorer was burned, Miriam told her that she had paid appellant $200 for destroying it. The defense made a continuing objection on the ground that evidence of arson, an uncharged crime, was inadmissible under Evidence Code section 1101, subdivision (b).^[9] The trial court overruled the objection as “it all comes in under 1223 of the Evidence Code, the co-conspirator’s statements, also as an admission. [¶] And it’s also evidence that Mr. Ruiz arguably got rid of a vehicle from which there was a shooting within a few days of the shooting.”

Again, we see nothing in the discussions about Sandra’s testimony that amounted to a ruling that the words “arson” or “Molotov cocktail” were impermissible.

Later in the trial, Goetz described watching the fire department extinguish the fire in the Explorer. Flood then asked:

“Q Now, what -- did you make any observations in regard to the Ford Explorer that evening after the fire was put out by the fire department?

“A Well, they told me they suspected arson. Other observations that night?

“Q Yes.

“A No.”

There was no objection to Goetz’s testimony that the fire department suspected arson. Taken in context, he volunteered that testimony, in response to a question which asked him what he observed.

Later in his testimony, Goetz said he was present when the arson investigators inspected the Explorer at the tow yard. Flood asked: “Did you note anything of interest that was recovered from the vehicle or observed in the vehicle at that time?” Goetz answered: “Again, we -- they didn’t recover anything. They just did their investigation, told me it was arson.” Donoghue made a hearsay objection and moved to strike the testimony. The judge sustained the objection, struck the testimony, and told the jury to disregard what Goetz was told. At bench, Donoghue moved for a mistrial, because of the reference to arson. Flood said that she had not intended by her question to elicit that reference. She also argued that the jurors could reasonably conclude that arson was involved, as nobody came forward to explain why a parked car was on fire. The judge thought that Flood should have instructed Goetz not to mention somebody else’s conclusion of arson. Flood replied that she had not expected Goetz to discuss that conclusion, and had simply instructed him “to describe his observations, specifically the items that I mentioned to you, that it appeared to him to be sort of a Molotov cocktail.” The judge offered to admonish the jury, but Donoghue did not want further admonishment. The judge denied a mistrial, because he did not think Flood told Goetz to mention arson, and there was ample circumstantial evidence that the fire was deliberately set.

Goetz further testified that he later returned to the tow yard with his partner and a crime scene investigator. When he sifted through the Explorer’s contents, he “located what appeared to us to be remnants of a Molotov cocktail.”

Donoghue immediately objected. The judge said, “Let’s forget about Molotov cocktails. That calls for a[n] expert opinion. Just tell the jury the items you found.” At bench, the judge complained that Flood knew from a pretrial ruling that Goetz was not to mention “the subject of Molotov cocktails or arson.” Also, Goetz himself should have known not to mention a Molotov cocktail, as he was present during the courtroom discussion about his use of the word “arson.” Flood said she thought that Goetz could not say “arson,” but could say “Molotov cocktail.” The judge did not know if the ruling was made “on or off the record,” but he believed Flood had clearly been told that Goetz was not to say “Molotov cocktail,” but was simply to “[d]escribe a jar or container, a wick, flammable liquid.” Donoghue renewed his motion for mistrial. Although the judge believed that Flood had violated pretrial orders, he denied the motion, on the ground the jury would have concluded from the circumstances that the fire was intentionally set, regardless of any references to arson or a Molotov cocktail.

B. Analysis

A prosecutor commits misconduct, in violation of the federal Constitution, if the pattern of conduct is so egregious that the trial is infected with unfairness that amounts to a denial of due process of law. If the trial is not fundamentally unfair, prosecutorial misconduct will be found under state law only if the prosecutor used deceptive or reprehensible methods of persuasion. (People v. Young (2005) 34 Cal.4th 1149, 1184.)

“It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order.” (People v. Crew (2003) 31 Cal.4th 822, 839.) “A prosecutor is under a duty to guard against inadmissible statements from his witnesses and guilty of misconduct when he violates that duty.” (People v. Cabrellis (1967) 251 Cal.App.2d 681, 688; see also People v. Glass (1975) 44 Cal.App.3d 772, 781.)

Despite the extensive argument on this issue, both below and before this court, the previously summarized record does not contain specific rulings by the trial court that were violated by Flood. Also, Goetz’s references to “arson” were volunteered by him, rather than a response to questions from Flood. There was no defense objection to Goetz’s first reference to the fire department’s suspicion of arson. There was an objection to his second reference, but at that point he was repeating what the jury had already heard.

The record is somewhat confused regarding a prior ruling on the term “Molotov cocktail.” Flood said that she thought those words were permitted, and she had misunderstood if they were not. The judge said he had made a clear ruling, which might be on or off the record, that Goetz could “[d]escribe a jar or container, a wick, flammable liquid; [but was] not to say ‘Molotov cocktail.’” We see no such ruling in the record, but it may have occurred off the record.

In any event, even if Flood violated an earlier ruling, it is not reasonably probable that the jury would have reached a result more favorable to appellant if Goetz had not used the words “Molotov cocktail” one time or the word “arson” two times. (People v. Crew, supra, 31 Cal.4th at pp. 839-840.) As the trial court found, the circumstances suggested that somebody set fire to the Explorer, as parked cars do not spontaneously burst into flames. There was therefore no possible prejudice from Goetz’s use of the disputed words.

The absence of prejudice is further supported by the fact that insurance fraud is a far less serious crime than attempted murder. Appellant’s setting the Explorer on fire on the day after Gonzalez was shot was strong circumstantial evidence that he shot Gonzalez and thereafter tried to destroy the vehicle used in that crime. His participation in an insurance fraud gave an alternative explanation for the fire which weakened the inference that he was the perpetrator of the Gonzalez shooting.

The absence of error and lack of prejudice further compel the conclusion that appellant’s trial was not so infected with unfairness as to amount to a denial of due process of law under the United States Constitution.

2. Juror Misconduct

Appellant maintains that the trial court should have granted his motion for mistrial, because of a problem with a juror who was relieved in the middle of the trial.

Midway through the prosecutor’s case, Juror No. 4 informed the court and counsel that she was slightly acquainted with a witness, Hawthorne Police Officer Keith Chaffin. She explained: “He worked at my company for several years, used to bring my classified, pick up my classified. And I ‑‑ I know that his family is in law enforcement. So when you read the names originally, it did ‑‑ it did tick in my head, but I thought, well, his family is so involved in law enforcement. Then today I saw the present classified person, and I said, ‘Cesar, where is Keith?’ And he said, ‘He’s in the gang unit for Hawthorne Police Department.’ ” The juror also said that the relationship would have no effect on her evaluation of witnesses.

Appellant’s counsel moved for a mistrial, arguing that the whole jury pool was tainted, as the juror should have disclosed that she knew Chaffin when she first heard his name, and would not have been kept on the jury if that disclosure had been made. The trial court denied the motion but excused Juror No. 4 and selected an alternate, on the ground that she should have promptly disclosed her recognition of Chaffin’s name, and had “violated the admonition” by making inquiries about him.

At the trial, Chaffin testified very briefly. He said he belonged to the Hawthorne Police Department’s gang intelligence unit, and saw the new gang graffiti on a nearby building after Gonzalez was shot.

In his motion for new trial, appellant argued that the behavior of Juror No. 4 denied him his right to an impartial jury, particularly since the questioning of the juror occurred in front of the rest of the jurors, which infected the other jurors with information about Chaffin’s background, which was not admissible at the trial.

The trial court denied the motion. It noted that, while it was unclear whether Juror No. 4 “appreciated the identity” of Chaffin when she first heard his name, she pointed out the problem when she realized it.

In our view, it would be a better practice to question a juror outside the presence of the other jurors. However, if there was any error in allowing Juror No. 4 to discuss her problem while the other jurors were present, the error was harmless, as she said nothing that would have affected the jury’s verdict.

A criminal defendant has a constitutional right to be tried by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110.) “A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ ” (People v. Marshall (1990) 50 Cal.3d 907, 950-951, quoting 2 ABA Standards for Criminal Justice, std. 8-3.7 (2d ed. 1980) p. 8.57.) “ ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’ ” (Id. at p. 951, citing 2 ABA Standards for Criminal Justice, supra, std. 8-3.7, Commentary, p. 8.58.)

Appellant received a trial from an impartial jury. Juror No. 4 was properly removed, as she did not promptly disclose that she had worked with Chaffin, and should not have asked a current employee about him. However, there is no substantial likelihood that her behavior influenced the other jurors, as her misconduct was of a relatively mild nature, she did not participate in deliberations, the other jurors learned nothing during the courtroom discussion that would affect their deliberations, and there was no issue regarding what Chaffin observed.

3. Failure To Examine the Other Jurors

Appellant also argues that the trial court should not have denied his motion for new trial without examining the other jurors to see if they were affected by hearing what Juror No. 4 said about Chaffin. There was no request for an evidentiary hearing, which means the issue was waived. Assuming it was not waived, it lacks merit.

“[I]t is within the discretion of a trial court to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. This does not mean, however, that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct. The hearing should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.” (People v. Hedgecock (1990) 51 Cal.3d 395, 419, fn. omitted.)

Here, there was no issue which required an evidentiary hearing. The judge knew that Juror No. 4 had said, in front of the other jurors, that Chaffin used to work for her company, his family was involved in law enforcement, and he was presently in the gang unit of the Hawthorne Police Department. No further inquiry was needed after Juror No. 4 was removed from the case, as there was no “material conflict that [could] only be resolved” at an evidentiary hearing. (People v. Hedgecock, supra, 51 Cal.3d at p. 419.)

4. Gang Graffiti

Appellant argues that the trial court abused its discretion under Evidence Code section 352 when it permitted evidence that, several days after Gonzalez was shot, gang graffiti appeared on a building 100 yards away, which included the name of appellant’s gang, an arrow pointing downwards, and a racial slur against African-Americans.

The record shows that defense counsel raised the issue before testimony started, the trial court postponed its ruling until an evidentiary hearing was held, and the request for an evidentiary hearing was withdrawn.^[10] Thus, the issue regarding this evidence was waived.

Assuming the issue was not waived, there was no error. “Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Here, the evidence was part of the circumstantial evidence which showed the motive for the crime (People v. Carter (2003) 30 Cal.4th 1166, 1194), which was the effort of appellant’s gang to gain control over the territory claimed by a rival gang. There was evidence that gangs are commonly involved in narcotics transactions. Appellant belonged to a Hispanic gang, Lennox 13, and uttered the traditional inquiry into gang membership before he started shooting. The shooting occurred on a street that was claimed by the 118 Eucalyptus Gangster Crips, which is predominantly African-American. Gonzalez purchased marijuana from two African-American men who were standing on that street. While their gang affiliation was not specified, the combination of circumstances, when tied to the subsequent graffiti, suggested that they were members of the 118 Eucalyptus Gangster Crips. Thus, the graffiti was part of the chain of circumstances that explained why the shooting occurred.

Appellant further complains that the graffiti evidence rendered his trial fundamentally unfair because it depicted him as a racist. Again, there was no objection on that basis, so this argument is waived. Assuming it was not waived, it lacks merit. The evidence was highly relevant on the issue of motive, and the single racial epithet was not so prejudicial as to require its exclusion.

5. Sufficiency of the Evidence

Appellant maintains that there was insufficient evidence that he intended to kill Gonzalez or that the shooting was premeditated. We do not agree.

We review the record in the light most favorable to the judgment to determine whether a reasonable trier of fact could have found appellant guilty, presuming in support of the judgment every fact that can be reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Sales (2004) 116 Cal.App.4th 741, 746.) There was sufficient evidence of intent to kill and premeditation. When Gonzalez drove up, appellant and his companion were sitting in the parked Explorer. After Gonzalez purchased marijuana, appellant and his companion drove up to Gonzalez and his friends. Appellant uttered the gang challenge, “Where you vatos from?” and immediately fired 12 rounds, hitting Gonzalez in the leg and back. The crime was committed in an Explorer, which appellant had agreed to destroy, and did destroy, the day after the shooting. A few days later, there was new gang graffiti, which indicated that appellant’s gang claimed the territory of its rival, an African-American gang. The combination of planning, motive, immediate firing of the gun, multiple shots, and location of the wounds established both intent to kill and premeditation. (People v. Young, supra, 34 Cal.4th 1149, 1182-1184; People v. Anderson (1968) 70 Cal.2d 15, 26-27.)

6. The Instruction on the Gang Enhancement

Appellant maintains that the instruction that was given on the criminal street gang enhancement was deficient because it did not define the term “primary activities.” We do not agree.

Appellant was charged with, and the jury found true, a criminal street gang allegation under section 186.22, subdivision (b)(1). That statutory provision sets forth the punishment of an indeterminate life term, with provisions for calculating the minimum term, if a person is convicted of certain enumerated crimes, and the crimes are committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” The term “criminal street gang” is defined by subdivision (f) of section 186.22, as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Subdivision (e) of section 186.22 defines the term “pattern of criminal gang activity.”^[11] There is no statutory definition of “primary activities.”

The jury received an instruction on section 186.22, subdivision (b), which was requested by the People. Like the statute, the instruction that was given defined the terms “criminal street gang” and “pattern of criminal gang activity,” but did not define the term “primary activities.”^[12]

Appellant argues that the jury should have received the definition of “primary activities,” which is included in CALJIC No. 17.24.2, the CALJIC instruction on section 186.22, subdivision (b). That definition states: “The phrase ‘primary activities,’ as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the group’s ‘chief’ or ‘principal’ occupations. This would of necessity exclude the occasional commission of identified crimes by the group’s members. In determining this issue, you should consider any expert opinion evidence offered, as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crime[s] charged in this proceeding.”

The comment to CALJIC No. 17.24.2 (Oct. 2005 ed.) page 1236 indicates that the instruction is derived from People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith). As we read Sengpadychith, it provides support for the definition of “primary activities” in CALJIC No. 17.24.2, but does not require that such a definition be given. What occurred below is that the trial court failed to define a commonly understood term, rather than, as appellant argues, failed to instruct on an element of the enhancement.

The issues in Sengpadychith were (1) whether the circumstances of the charged crimes can be considered on the issue of the group’s primary activities, and (2) the standard of harmless error that governs when the jury is not instructed that one of the gang’s primary activities must be the commission of one or more of the statutorily enumerated felonies. (Sengpadychith, supra, 26 Cal.4th at p. 320.) Here, the jury was properly instructed on the primary activities element of the criminal street gang enhancement. Specifically, it was told that the “criminal street gang” had to have “as one of its primary activities the commission of [s]ale/[p]ossession for [s]ale of controlled [s]ubstance, murder, attempt[ed] murder, assault w/deadly weapon, [and] shooting from vehicle at residence or occupied vehicle . . . .”

Sengpadychith does define “primary activities” as follows: “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (Sengpadychith, supra, 26 Cal.4th at p. 323.) That language does not mean that the jury must be instructed on the term “primary activities.” When a word or phrase has a commonly understood meaning and is not used in a technical legal sense, the trial court has no sua sponte duty to instruct on its meaning. (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.) We are confident that the jury in this case understood what “primary activities” meant, without a definition from the trial court.

Assuming arguendo that there was any error, we are required by Sengpadychith, supra, 26 Cal.4th at pages 320, 326-328, to apply the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24, to the offense in count 2, and the state constitutional standard of People v. Watson (1956) 46 Cal.2d 818, 836, as to the offense in count 1. Under either of those standards, the failure of the trial court to define “primary activities” would not justify a reversal of the gang enhancement. The gang expert gave uncontradicted testimony that the primary activities of the Lennox 13 gang were narcotics offenses, gambling, robberies, drive-by shootings, and homicide; members of the gang had been convicted of assault with a deadly weapon and murder of rival gang members; and the facts of this case showed a classic gang drive-by shooting. There is no possibility that the jury could have found that the gang’s members only occasionally committed those crimes.

7. Sufficiency of Evidence on the Gang Allegations

Appellant next argues that there was insufficient evidence that the crime was committed for the benefit of the Lennox 13 gang, with the specific intent to promote criminal conduct by the gang’s members. The contention lacks merit. As in People v. Gardeley (1996) 14 Cal.4th 605, 626, the elements of the gang allegations were established “[t]hrough a combination of expert opinion testimony, documentary evidence of an uncharged crime, and testimony by percipient witnesses to the charged crimes in this case . . . .” Goetz’s testimony included descriptions of the crimes which were the gang’s primary activities, and an explanation of the crime’s motive: to extend the territory of Lennox 13 into the territory of the rival gang. Goetz described crimes by other members of the gang, and court records were introduced regarding the murder conviction of a gang member. Appellant was an admitted member of Lennox 13. The circumstances of the crime suggested that Gonzalez’s companions, but not Gonzalez himself, belonged to the rival gang, as they were African-Americans who were selling drugs in the area of the African-American gang. Appellant drove up, uttered a typical gang expression, and opened fire on Gonzalez and his companions. Graffiti appeared afterwards that claimed the area for Lennox 13. This combination of evidence amply established the gang allegation in this case. (Sengpadychith, supra, 26 Cal.4th at p. 324.)

8. Cumulative Error

Appellant next contends that the cumulative effect of the errors in his case resulted in a miscarriage of justice. However, as indicated, no error occurred.

9. Cruel and Unusual Punishment

At the sentencing hearing, appellant’s counsel argued that adding a 25-year-to-life enhancement for firearms discharge (§ 12022.53, subd. (d)) to the life term for attempted murder was unconstitutional as cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Appellant repeats that argument before this court. Recognizing that other courts have rejected this contention (People v. Gonzales (2001) 87 Cal.App.4th 1, 16-17; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215-1216; People v. Martinez (1999) 76 Cal.App.4th 489, 494-496), he asks us to find that the firearms discharge enhancement is unconstitutional, as applied to him, because he was a 20-year-old methamphetamine addict with no prior felony convictions. Appellant seriously wounded a person he did not know in an unprovoked drive-by shooting. He fired 12 shots from a semiautomatic weapon at three people who were standing nearby. We do not find the penalty that was imposed to be cruel and unusual punishment.

10. Count 2 Must Be Stayed

Appellant was convicted of premeditated attempted murder (count 1) and discharging a firearm from a motor vehicle (count 2). The sentence on count 2 was made concurrent. Both sides agree that count 2 must be stayed, based on section 654’s prohibition against multiple punishment.

DISPOSITION

The judgment is modified to stay execution of the sentence on count 2, with that stay to become permanent when service of sentence on count 1 is completed. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P.J.

BOLAND, J.

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^[1] All subsequent code references are to the Penal Code unless otherwise stated.

^[2] There is a pending motion to be considered. Appellant was originally represented on appeal by retained counsel. The appeal was dismissed after counsel failed to file an opening brief. The California Appellate Project filed a motion to recall the remittitur and reinstate the appeal. We granted the motion and appointed counsel, who filed the briefing we consider in this opinion. We deferred consideration of a request for judicial notice, which was filed concurrently with the motion to recall the remittitur. The request is for judicial notice of State Bar disciplinary records regarding appellant’s former counsel. We deny the request for judicial notice because the motion to recall the remittitur has already been granted and the requested documents are unnecessary for consideration of the issues raised on the appeal.

^[3] Gonzalez had been promised that he would not be prosecuted for his testimony.

^[4] We specify the individuals’ race because there was testimony about competition between a Hispanic gang and an African-American gang.

^[5] This testimony is the subject of appellant’s first issue, post.

^[6] Specifically, appellant testified that he decided to set fire to the Explorer, rather than strip it, as he had told Miriam. He got a plastic container from his backyard and drove the Explorer to a gas station. He purchased gasoline, which he put into the container. He drove the Explorer near his home and spread gasoline around it. He left the container inside, threw a match in to start the fire, and ran home. Miriam gave him a check for $200. He cashed the check at a bank and used the money to buy methamphetamine and beer.

^[7] The record contains several spellings of Donoghue’s name. We use the spelling he himself used on a written motion.

^[8] Based on appellant’s testimony, the object which appeared to Goetz to be a Molotov cocktail may have been the container that appellant used to hold the gasoline he poured on the Explorer.

^[9] Evidence Code section 1101, subdivision (b) states: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”

^[10] Specifically, Donoghue advised the court during a recess of voir dire that an Evidence Code section 402 hearing would be needed, as the probative value of the graffiti was outweighed by prejudice, and there was no evidence that appellant wrote the graffiti. Flood argued that the graffiti showed the gang’s motivation for the shooting. The judge indicated that the evidence was likely to be admissible, but a ruling was postponed pending an Evidence Code section 402 hearing by the officer who saw the graffiti. Later in the trial, after Flood said the section 402 hearing would take place the next day, Donoghue stated, “On the Lennox 13 graffiti, I’ll withdraw my 402.”

^[11] Subdivision (e) of section 186.22 states in pertinent part: “As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.”

^[12] “It is alleged in Count(s) 1 and 2 of the Information that in the commission of the crimes charged, that the defendant(s) Alfredo Ruiz committed those crimes for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by members of that gang.

“If you find the defendant guilty of the crimes charged in Count(s) 1 and/or 2 of the Information, you must determine whether or not the truth of this allegation has been proved.

“In order to prove such allegation, each of the following elements must be proved:

“1. The defendant committed a felony,

“2. for the benefit of, at the direction of, or in association with,

“3. a criminal street gang,

“4. with the specific intent to promote, further, or assist in any criminal conduct by gang members.

“ ‘Criminal street gang’ means any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of Sale/Possession for Sale of Controlled Substance, murder, attempt murder assault w/deadly weapon, shooting from vehicle at residence or occupied vehicle, which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

“ ‘Pattern of criminal gang activity’ means the [commission,] [attempted commission,] [or] [solicitation] of two or more of the following crimes, namely P.C. 187(a) – Murder, P.C. 246 – Shooting at an inhabited dwelling/occupied vehicle, or P.C. 245(a)(1) – Assault w/deadly weapon, provided at least one of those crimes occurred after September 23, 1988 and the last of those crimes occurred within three years after a prior offense, and the crimes are committed on separate occasions, or by two or more persons. For the purpose of this allegation, it is not required that the defendant have knowledge of these predicate offenses committed by other gang members.

“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.

“You will include a special finding on that question, using a form that will be supplied to you.”