1 Filed 9/18/13 P. v. Bocanegra CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DIEGO BOCANEGRA et al., Defendants and Appellants. E055487 (Super.Ct.No. FVA1101476) OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Steven A. Mapes, Judge. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Diego Bocanegra. James R. Bostwick, Jr., under appointmen t by the Court of Appeal, for Defendant and Appellant Salvador Hernandez. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Andrew Mestman and Kathryn A. Kirschbaum, De puty Attorneys General, fo r Plaintiff and Respondent.2 A jury convicted defendants and appe llants Diego Bocanegra and Salvador Hernandez (collectively, “defendants”) of tw o counts of second degr ee robbery of victims Oscar Bracamontes and Carlos Vaquera (col lectively, “victims”) (Pen. Code, § 211— counts 1 & 2). 1 The jury additionally found true allegations defendants had personally used a firearm in their commission of th e robberies (§ 12022.53, subd. (b)); had committed the robberies fo r the benefit of, at the directi on of, or in association with a criminal street gang (§ 186.22, subd. (b)); and that a principal had personally used a firearm in the commission of the robberies (§ 12022.53, subs. (b) & (e)(1)). The court sentenced defendants to an aggregate, determ inate term of imprisonment of 19 years, 4 months, consisting of the following: the five -year aggravated term for the robbery in count 1; 10 years for the personal use enhanc ement on count 1; puni shment stricken, on the gang enhancement on count 1; one third the midterm of three years (one year) consecutive on count 2; one third the midterm of 10 years (three years, four months) consecutive for the personal use enhancement on count 2; and punishment stricken for the gang enhancement on count 2. On appeal, Hernandez cont ends the court abused its discretion in declining his request for a Spanish interpreter, erred pursuant to Miranda 2 in permitting admission at trial of his incriminating statement to police, abused its discretion in imposing the upper term on the count 1 offense, and that his sent ence violates federal and state constitutional

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).3 prohibitions against cruel and unusual puni shment. Bocanegra maintains the court
committed Crawford 3 error in allowing admission of Hernandez’s inculpatory statement during trial and that insufficient evidence sup ports the jury’s true findings on the gang enhancements. Defendants join each others’ arguments to the extent they may benefit from them. We affirm the judgment. FACTUAL AND PROC EDURAL HISTORY On September 16, 2011, so metime between 8:00 and 9:00 p.m., the victims started deejaying a party in the backyard of a reside nce in Rialto. They had laptops, turntables, speakers, colored stage lights, a mixer, a nd headphones. Bracamontes was using his $17,000 MacBook Pro la ptop, on a four-foot ta ble, behind which the victims stood while deejaying. Vaquera’s Sony Va io laptop was also on the tabl e. Around 100 people were in the backyard dancing at the party. Vaquera testified that after about an h our, Bocanegra came up the table, grabbed Bracamontes’s laptop, and dropped it to the ground. Bracam ontes reached down to get it. Bocanegra then pulled out a gun , pointed it at the victims, and demanded the laptop. Bracamontes handed Boca negra the laptop; Bocanegra ye lled, “This is South Side Pomona, Mother Fucker.” Bocanegra hand ed off the gun to Hernandez, who was wearing a hat with the letter “P” on it. Herna ndez pointed the gun at people at the party; someone took Vaquera’s laptop; defe ndants then left together.

3 Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ).4 Bracamontes testified Hernandez was th e individual who initially knocked his laptop off the table then pick ed it up, pointed the gun at his face, and demanded the laptop or he would shoot. Hernandez was wearing a hat with the letter “P” on it. Hernandez handed off th e gun to Bocanegra who pointed it at the victims. Bracamontes handed over his laptop. Defendants gr abbed Vaquera’s computer and left. The victims packed up their remaining equipment and went looking for defendants. Their friend “Chuy” called the polic e and also went looking for defendants. Chuy called the victims when po lice stopped the vehicle in which defendants had left the party. The victims arrived at the locati on where the police had stopped defendants less than an hour af ter the robbery. Out of a group of six indi viduals detained from the ve hicle, the victims identified Bocanegra and Hernandez as th e individuals who robbed them . A .357 revolver and two laptops—a Mac Book Pro and a Sony Vaio—were found in the vehicle. Vaquera and Bracamontes were able to recover their lapt ops by proving their ow nership of them by logging onto the computers w ith their passwords. Bracamontes identified the revolver as the one pointed at the victims. Rialto police officer Ralph Ballew testif ied that when detained, Hernandez was wearing a hat with the letter “P” on it. Hernandez also had a tattoo on his left arm reading “SSP.” While at the Rialto jail boo king defendants, the jailer asked Ballew why so many of the people being booked were fro m Pomona. Hernandez, who was seated on a bench with three other individuals including Bocanegra, stated “‘Came to lame ass Rialto to put in work and represent South Side.’”5 Pomona police officer Jaime Martinez testified as the People’s expert gang witness. Martinez, who was born and raised in the south side of Pomona, had been a police officer in Pomona for six years. He had been assigned to the Gang Violence Suppression Unit for the preceding four years. Martinez test ified he was very familiar with the South Side Pomona (SSP) gang. In his experience, he had contact with well over 1,500 gang members in Pom ona. He had investigated and assisted in investigations of numerous crimes committed by members of SSP, including several in which firearms were used. He had attended public schools, and he had worked with SSP members prior to becoming a police officer. At one point, he had even befriended a SSP member. SSP was originally a tagging cr ew in the 1970s that was pa rt of a clique within the 12th Street gang. A SSP member named Vict or Hernandez, with whom Martinez was very familiar, requested permission from the Mexican Mafia for SSP to become its own gang separate from 12th Street. The Mexica n Mafia granted permission, but required SSP to earn its “trece” or gang designator by putting in “work,” i.e., robberies, assaults, thefts, and felony vandalisms . SSP has been a recognized gang by the Pomona Police Department since the early 1980s. Martinez testified there were currently approximately 35 active members and 35- 40 associates in SSP. Members of SSP usua lly wear clothing with the letter “P.” Members also wear clothing or have tattoos with the letters “S” and “SSP.” Because members of SSP were still trying to earn its “t rece,” they would commit whatever crimes they could wherever they coul d, especially outside of its territory, so SSP could make a6 name for itself. Members “bang” or let the victims of their crimes know wh at gang they are from in order to obtain recognition. The hat worn by Hernandez is the t ype typically worn by SSP members. Likewise, Hernandez’s tattoo reading “SSP” is typical of SSP gang members. Anyone who had such a tattoo who was not a member of the gang would find himself in trouble with the gang. Martinez opined Hernan dez was an active member of SSP. Martinez had had one prior contact w ith Bocanegra during which Bocanegra admitted he was a member of SSP. Martinez had also reviewed field interrogation cards on Bocanegra and spoken to other officers w ho had had contact with him. Martinez opined Bocanegra was an active member of SSP. Martinez testified SSP’s primary activitie s were “[f]elony va ndalisms, burglaries, robberies, assaults, assaults with deadly weapons, grand theft autos, thefts, witness intimidation, [and] extortions.” Document ed SSP member Max Nu nez was convicted on May 24, 2011, for making criminal threats and a true finding was rendered that the offense was gang related. Martinez had had numerous contacts with Nunez and had arrested him on one occasion. John Rodri guez, another documented SSP member, was convicted of carrying a concealed firearm an d possession of a controlled substance for sale on May 4, 2011. Martinez had had contact with Rodriguez on several occasions and once assisted in his arrest. Bocanegra testified that alt hough he was at the party with 10 other people, most of whom were SSP members, he did not commit th e robbery or point a gun at anyone. He testified he was not a member of SSP, bu t knows members of SSP from school and his7 community where he spends tim e with them. Hernandez wa s a member of SSP at one point in time, but was no longer. Hern andez did not commit the robbery either. Bocanegra testified he witnessed the robbery; it was committed by a man named Irving Sisneros who looked like Bocanegra and with whom Boca negra came to the party. Sisneros yelled “South Side Pomona, Mother Fucker” when he committed the robbery. Bocanegra left the party with Sisneros, wh o fled from the scene when the vehicle was stopped by police. There were six people in the car when it was stopped; some of them were SSP members. The stolen laptops were in the vehicle. DISCUSSION
A. SPANISH INTERPRETER Hernandez contends the trial court abused its discretion when it denied his request for a Spanish interpreter. We disagree. “The right to an interprete r has its underpinnings in a number of state and federal constitutional rights. These include a defendant’s rights to due process, to confrontation, to effective assistance of counsel, and to be present at trial. [Citation.] The California Constitution provides that a cr iminal defendant who does not understand English ‘has a right to an interprete r throughout the proceedings.’ [Citation.]” ( People v. Romero (2008) 44 Cal.4th 386, 410.) “[W]hen the ability of one charged with a crime to understand English is being evaluated at the outset of the proceedings, th e burden is on the accused to show that his understanding of English is not sufficient to allow him to understand the nature of the8 proceedings and to in telligently participate in his defense.” ( In re Remundo (1988) 203 Cal.App.3d 1447, 1454.) “‘The question of the necessi ty of an interpreter . . . is a matter for judicial determination over which the trial court is permitted to exercise its discretion.’ [Citations.]” ( In re Remundo , supra , 203 Cal.App.3d at pp. 1455-1456.) “‘“‘[W]here a trial court has discretionary power to decide an issue, a reviewing court will not disturb that decision unless the trial court has exce eded the limits of legal discretion by making an arbitrary, capricious, or pa tently absurd determination . . . .’”’ [Citation.]” ( Id . at p. 1456.) “This exercise of discretion should not be reversed unless ther e is a complete lack of any evidence in the record that the accused does understa nd English, thereby rendering the decision totally arbitrary.” ( Ibid .) Hernandez indicated he would like a Spanis h interpreter largely because he did not understand the legal terminolo gy or procedures communicated to him by defense counsel. Although Hernandez stated , “I really don’t understand in English,” the court thoroughly examined Hernandez’s e ducational background in English. Defendant stated he started his education in Kindergarten in the United St ates with instruction in both English and Spanish. His first grade instruction was in English only. He was taught how to read and write in English. He took tests in English. He passed from first th rough eleventh grades with instruction in English. He was never taug ht to read in Spanish. He never took tests in Spanish. Defense counsel informed the court, “I ha ve solely and exclusiv ely spoken to . . . Hernandez in the English language. He proc eeded to preliminary hearing . . . in the9 English language entirely.” Neither defendant used an interpreter at the preliminary hearing. Defense counsel further observed, “in the approximately three months that I’ve been dealing with this case, . . . Hernandez has neither i ndicated any sort of a failure to understand when I am speaking to him in Eng lish, nor has he ever previously requested any sort of an interpreter.” The court found, “you don’t need an in terpreter. My belief is you don’t even know how to read Spanish. And even if these legal words were written in Spanish, you wouldn’t know what they were .” The court further noted th at most people who are native English speakers do not unders tand legal jargon. Thus, th e court denied defendant’s request. Hernandez failed his burden of proving he did not have a sufficient understanding of English. As the court’s questioning reve aled, Hernandez had been educated primarily, if not solely, in English for most of his life. He was not educated in Spanish. Hernandez had never previously indicated any problem unders tanding English to his attorney or the court. Thus, the court acted within its discretion in denying Hernandez’s request.
B. MIRANDA Hernandez contends the court erred in re fusing to exclude fro m trial his statement to officers that he, “‘Came to lame ass Rialto to put in work and represent South Side.’” We disagree. Prior to trial, Hernandez sought to ex clude evidence of his statement. Ballew testified Hernandez and Bocanegra were sitti ng on the bench outside the interview room. As Ballew exited the interview ro om processing paperwor k, one of the jailers said to him,10 “‘What are these guys doing in Rialto? They’re all from Pomona.’” Hernandez overheard the question and spontaneously said, “‘ Came to lame ass Ria lto to put in work and represent South Side.’” Ballew was not interviewing Hernandez at the time. Six
individuals were on the bench when Hernandez made the statement. 4 The court denied Hernandez’s request to exclude the statement. “Defendants who are in custody must be given Miranda warnings before police officers may interrogate them. [Citation.] . . . ‘[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questi oning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating re sponse from the suspect. The latter portion of this definition focuses primarily upon the pe rceptions of the suspect, rather than the intent of the police.’ [Citation.] [¶] ‘“Cl early, not all conversation between an officer and a suspect constitutes interrogation. The po lice may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.”’ [Citations.]” ( People v. Huggins (2006) 38 Cal.4th 175, 198.)

4 At trial, Ballew corrected himself, notin g that of the six individuals detained, two were adults and so were “kept apart.” Thus, only four people were sitting on the bench when Hernandez made the statement.11 “‘Interrogation thus refers to questioni ng initiated by the police or its functional equivalent, not voluntary conversation. [Citation.] “‘Vol unteered statements of any kind are not barred by the Fifth Amendment . . . .’”’ [Citations.] Consequently, the police ‘may speak to a suspect in custody as long as the spee ch would not reasonably be construed as calling for an incrimin ating response.’ [Citation.]” ( People v. Gamache (2010) 48 Cal.4th 347, 387-388.) “Although we review the record and inde pendently decide whet her the challenged statements were obtai ned in violation of Miranda , . . . we may ‘“give great weight to the considered conclusions”’ of the trial court. [Citations.]” ( People v. Nelson (2012) 53 Cal.4th 367, 380.) “When reviewing a trial c ourt’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘a pply a deferential substantial evidence standard’ [citation] to the tria l court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] de fendant’s positio n would have felt free to end the questioning and leave’ [citation].” ( People v. Leonard (2007) 40 Cal.4th 1370, 1400.) Here, although defendant was in custody when he made the statement, it was not in response to any question posed him. Ba llew testified both before and during trial he was not interviewing Hernandez when Herna ndez made the statement. Likewise, the jailer had directed his question to Ballew, not Hernandez, when the latter made the incriminating remark. Rather, Hernandez vo lunteered the statement. Moreover, there were at least four individuals on the bench at the time the jailer queried Ballew regarding12 the suspects’ home city. Thus, Hernandez c ould not reasonably belie ve the question was either expressly or implicitly directed at him. Furthermore, even if directed at Hernandez, the question was not one that would normally be used to solicit incriminating statements. Therefore, the statement was ne ither made in response to interrogation nor was the jailer’s question one that would norma lly call for an incrimin ating response. The court acted appropriately in permitting the statement’s ad mission into evidence.
C. CRAWFORD Bocanegra contends the court erred pursuant to Crawford , supra , 541 U.S. 36 in admitting Hernandez’s statemen t because he was never give n the opportunity to crossexamine Hernandez regarding the statement. Bocanegra maintains the statement was testimonial and, therefore, per se excludable pursuant to Crawford . In the event we do not find Hernandez’s statement testimoni al, Bocanegra argues the decisions in People v. Aranda (1965) 63 Cal.2d 518 ( Aranda ) (superseded by statut e on another ground as recognized in People v. Fletcher (1996) 13 Cal.4th 451, 465) and Bruton v. United States (1968) 391 U.S. 123 ( Bruton ) compel its exclusion regardle ss. In any event, defendant contends the admission of the statement depr ived him of due process. We disagree.
1. TESTIMONIAL “The Sixth Amendment’s Confrontation Cl ause provides that, ‘[i]n all criminal prosecutions, the accused shall en joy the right . . . to be c onfronted with the witnesses against him.’ [T]his bedrock procedural guarantee applies to both federal and state prosecutions. [Citation.].” ( Crawford , supra , 541 U.S. at p. 42.) “Where testimonial evidence is at issue . . . the Sixth Amendm ent demands what the common law required:13 unavailability and a prior opportun ity for cross-examination. . . . Whatever else the term covers, it applies at a minimum to prior te stimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” ( Id . at p. 68, fn. omitted.) “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the on e the Constitution actually prescribes: confrontation.” ( Id . at pp. 68-69.) “The text of the Confrontation Clause reflec ts this focus. It applies to ‘witnesses’ against the accused—in other words, t hose who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, is typica lly ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citati on.] An accuser who makes a formal statement to government officers be ars testimony in a sense that a person who makes a casual remark to an acquaintance does not.” ( Crawford , supra , 541 U.S. at p. 51.) “Various formulations of this core class of ‘testimonial’ statements exist: ‘ ex parte in-court testimony or its functional equivale nt—that is, material such as affidavits, custodial examinations, prior testimony that th e defendant was unable to cross-examine, or similar pretrial statemen ts that declarants would r easonably expect to be used prosecutorially,’ [citation]; ‘extrajudicial st atements . . . contai ned in formalized testimonial materials, such as affidavits , depositions, prior test imony, or confessions,’ [citation]; ‘statements that were made u nder circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ [citation.]” ( Id . at pp. 51-52.) “Statements ta ken by police officers in the14 course of interrogations are also testim onial under even a narrow standard.” ( Id . at p. 52.)
In Davis v. Washington (2006) 547 U.S. 813, the court found it necessary to provide a more comprehensive definition of “testimonial”: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” ( Id . at p. 822, fn. omitted.) “A 911 call . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov [e]’ some past fact, but to describe current circumstances requiring police assistance.” ( Id . at pp. 827.) Nonetheless, wh ere an officer interviews a victim after any threat of danger had dissolv ed, statements made by the victim to the officer are “testimonial” because they are ma de primarily, if not, solely, for the purpose of investigating a crime. ( Id . at pp. 827, 829-830, 832.) Here, Hernandez’s statement was not testimonial. Hernandez was not being interviewed. Rather, Hernandez’s statemen t was a spontaneous, volunteered exclamation in response to the jailer’s que ry of Ballew while Hernandez was seated on a bench with others outside the interview room. As su ch, there was no degree of formality or solemnity in the circumstances giving rise to the statement. Hernandez’s statement was not solicited; the jailer’s question could not be viewed as the type made in order to assist15 in an investigation as it had nothing to do with the crimes. Since the statement was not testimonial, Bocanegra’s right to confrontatio n was not violated by the court’s admission of the statement. The court acted a ppropriately in adm itting the statement.
2. NONTESTIMONIAL EXCLUSION Bocanegra contends that under Bruton , even nontestimonial statements by a codefendant may be excluded as violative of the Sixth Amendment’s confrontation clause. We disagree.
In Bruton , supra , 391 U.S. 123, the court held: “[ T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him’ secured by the Sixth Amendment, [citation]; ‘a ma jor reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.’ [Citation.]” ( Id . at p. 126.) A jury convicted Bruton after the court admitted the confession of his codefendant, Evans, which inculpated Bruton by name. The conf ession was made to a postal inspector during an in-jail interrogation condu cted after city police offi cers had already obtained a confession from Evans. On appeal, Evans’ s confession was held inadmissible as violative of Miranda . On retrial, Evans was acquitted. ( Bruton , at pp. 125-126.) Although Crawford mentioned Bruton ( Crawford , supra , 541 U.S. at p. 57), it never expressly overruled or acknowledged that its decision in any way replaced Bruton

. Nevertheless, dictum in Crawford strongly suggested the Con frontation Clause no longer applied to nontestimonial statements. ( Crawford , at pp. 60-61 [analysis casts doubt on previous holding that confrontation clause applied to nontestimonial statements].)16 Indeed, a long line of subsequent state a nd federal cases, including decisions by the United States Supreme Court itself, have expressly ruled Crawford eliminated confrontation clause protection fo r nontestimonial statements. ( People v. Arceo (2011) 195 Cal.App.4th 556, 575 [“[T]he confronta tion clause applies only to testimonial statements”]; People v. Gutierrez (2009) 45 Cal.4th 789, 81 2 [“Only the admission of testimonial hearsay statements viol ates the confrontation clause”]; United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85 [“ The threshold que stion in every case is whether the challenged statement is te stimonial. If it is not, the Confrontation Clause ‘has no application’”]; United States v. Johnson (6th Cir. 2009) 581 F.3d 320, 326 [“Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not ap ply to nontestimonial statements”]; Davis v. Washington , supra , 547 U.S. at p. 821 [only testimoni al statements “cause the declarant to be a ‘witness’ within the mean ing of the Confrontation Clause”]; Whorton v. Bockting (2007) 549 U.S. 406, 420 [ Crawford eliminated “Confrontation Clause protection against the admission of unreliable out-of-c ourt nontestimonial statements”]; Michigan v. Bryant (2011) 131 S.Ct. 1143, 1 153 [“We therefore limited the Confrontation Clause’s reach to testimonial stat ements”].) Moreover, even to the extent Bruton could be construed as providing confrontation clause protection to certain nontestimonial stat ements, we would find it inapplicable here. First, unlike Bruton , the statement here was not made under interrogation. Second, the statement by Hernandez was not found violative of Miranda . Third, Hernandez’s statement did not expressly inculpate Bo canegra. Hernandez did not mention17 Bocanegra’s name nor did he say, “ We ‘came to lame ass Ria lto to put in work and represent South Side.’” (Italic s added.) Rather, the statemen t would appear to inculpate only Hernandez himself. Furthermore, Hern andez was seated on the bench with three other individuals, only one of whom was Bocanegra. Thus, ev en to the exte nt his remark could be construed as incl uding someone other than himself, there was no way it expressly implicated Bocanegra. Finally, th e court instructed the jury both before the admission of the statement and after trial wi th CALCRIM No. 305 in forming it that it
could not use the statem ent against Bocanegra. 5 Thus, Hernandez’s statement was not the sort of nontestimonial evidence, which po werfully implicated Bo canegra such that it should have been excluded as viola tive of the confrontation clause.
3. DUE PROCESS Bocanegra further maintain s that admission of Hernandez’s statement violated his right to due process pursuant to Aranda and Bruton . We disagree. As stated ante , “[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses agains t him’ secured by the Sixth Amendment, [citation]; ‘a majo r reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses

5 “‘[O]rdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury is instruct ed to consider that testimony only against a codefendant.’ [Citation.] The only exception to this rule is the narrow class of statements falling within the holdings of Bruton . . . that is, statements that powerfully incriminate the defendant on th eir face because they di rectly implicate the defendant by name or do so in a manner the jury could not reasonab ly be expected to ignore. [Citations.]” ( People v. Lewis (2008) 43 Cal.4th 415, 506.)18 against him.’ [Citation.]” ( Bruton , supra , 391 U.S. at p. 126.) “‘Indeed, we have expressly declared that to deprive an accused of the right to cross- examine the witnesses against him is a denial of the Fourteenth Am endment’s guarantee of due process of law.’” ( Id . at p. 131, fn. 5.) “In the absence, however, of a holding by the United States Supreme Court that the due process clause re quires such change, the rules we now adopt are to be regarded, not as constitutionally comp elled, but as judicially declared rules of practice to implement section 1098.” ( Aranda , supra , 63 Cal.2d at p. 530, fn. omitted.)
In Aranda , the defendant’s codefendant conf essed, during a series of police interrogations, that he and Aran da had committed a robbery. ( Aranda , supra , 63 Cal.2d at p. 522.) The codefendant testified at tr ial and denied making th e confession; admission of the confession was later determined to be constitutionally infirm and the code fendant’s conviction was reversed. ( Id . at p. 523.) The court held that, “When, however, the confession implicating both defend ants is not admissible at a ll, there is no longer room for compromise. The risk of prejudicing th e non-confessing defendant can no longer be justified by the need for introducing the confession against the one who made it.” ( Id . at p. 525.) First, any due process argument regard ing the inadmissibility of Hernandez’s statement as prejudicial to Bocanegra is larg ely, if not entirely, subsumed within the Sixth Amendment confronta tion clause analysis. Bruton recognized that admission of a non-admissible codefendant’s statement agai nst another was a due process violation largely because the defendant was not permitted the right to confront the witness regarding the statement. ( Bruton , supra , 391 U.S. 123 at p. 131, fn. 5.) On the other19 hand, Aranda noted that the United States Suprem e Court had, as of that time, not rendered a decision as to whether admissi on of a codefendant’s prior statement inculpating another defendant without the righ t of confrontation was a violation of due process; thus, the court ruled the practice viol ated judicially implemented rules regarding state statutory law. ( Aranda , supra , 63 Cal.2d at p. 530.) Second, both Aranda and
Bruton are factually distinguishable. Unlike in those cases, Hernandez’s statement has never been found inadmiss ible. Moreover, unlike Burton and Aranda , Hernandez’s statement was not the result of custodial interrogation. Furthermore, Hernandez’s statement did not directly implicate Bocane gra. Thus, the admission of Hernandez’s statement was not “‘so unduly prejudicial that it render[ed] the trial fundamentally unfair.’ [Citation.]” ( People v. Bivert (2011) 52 Cal.4th 96, 118.) Therefore, there was no due process violation.
4. HARMLESS ERROR Even assuming Hernandez’s statement wa s erroneously admitte d, we hold the admission harmless. Crawford , Aranda , and Bruton error are all subject to the harmless error standard under the rule in Chapman v. California (1967) 386 U.S. 18, i.e., whether the error was harmless beyond a reasonable doubt. ( People v. Jennings (2010) 50 Cal.4th 616, 652.) Here, both victims identified Bocanegra as pointing a gun at them. Both victims testified Hernandez also handled the gun; Bracamontes testified Hernandez pointed the gun at both the victims. Vaquera testif ied Bocanegra yelled, “This is South Side Pomona, Mother Fucker.” Martinez had been present when Bocanegra had previously20 admitted to membership in SS P. Hernandez had a hat on with the letter “P” which Martinez testified was SSP gang wear. Hernandez also had a tattoo reading “SSP” which Martinez likewise testified was indicia of me mbership in SSP. Martinez opined both defendants were members of SSP and needed to put in work to earn SSP its “trece.” Both victims identified defendants as the robbers, with in an hour of the robbery, out of a group of six individuals. The stolen laptops and the gun utilized in th e robbery were found within the car in which defendants were stopped. Thus, overwhelming evidence, excluding Hernandez’s statem ent, supported defendant’s convictions and the true findings on the attached enhancements. A ny error in admitting Hernandez’s statement was, therefore, harmless beyond a reasonable doubt.
D. SUFFICIENT EVIDENCE SUPPORTS THE TRUE FINDINGS ON THE GANG ENHANCEMENTS Bocanegra contends insufficient evidence supported the jury’s true findings on the gang enhancements, specifically the prong requi ring the jury to fi nd that SSP’s primary activities were one or more of the statutor ily enumerated crimes. We disagree. “‘In considering a challenge to the suffi ciency of the eviden ce to support an enhancement, we review the en tire record in the light most favorable to the judgment to determine whether it contains substantial evid ence—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 reas onable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances re asonably justify the trie r of fact’s findings,21 reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary find ing. [Citation.] “A reviewing court neither reweighs evidence nor reevalua tes a witness’s credibility.” [Citation.]’ [Citation.] The same test applies to the re view of special circumstantia l findings. [Citation.]” ( People v. Livingston (2012) 53 Cal.4t h 1145, 1170.) “Section 186.22, subdivision (b)(1), enhanc es the sentence for ‘any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, w ith the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .’ [Citation.]” ( People v. Livingston , supra , 53 Cal.4th at p. 1170.) Pursuant to the statue a “‘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 commi ssion of one or more of the criminal acts enumerated” in subdivision (e). (§ 186.22 , subd. (f).) “Evidence of past or present conduct by gang members involving the commiss ion of one or more of the statutorily enumerated crimes is relevant in determini ng the group’s primary activities. Both past and present offenses have some tendency in reason to show the group’s primary activity . . . .” ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activitie s might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony. [Citation.]” ( Id . at p. 324, italics added.)22 Here, Martinez testified SSP’s primary activities included “[f]elony vandalisms, burglaries, robberies, assaults , assaults with deadly weapons , grand theft autos, thefts, witness intimidation, [and] extortions.” Ma rtinez also testified that SSP gang member Max Nunez had been convicted on May 24, 2011 , for making criminal threats and a true finding was rendered that the offense was gang related. SSP me mber John Rodriguez had been convicted on May 4, 2011, of carrying a conceale d firearm and possession of a controlled substance for sale. Martinez tes tified SSP members were attempting to earn their “trece” by putting in “work” such as robberies, assaults, thefts, and felony vandalisms. Martinez’s testimony was subs tantial evidence supportive of the jury’s finding that SSP’s primary activities were statutorily enumerated crimes. ( People v. Margarejo (2008) 162 Cal.App.4th 102 , 107-108 [expert gang w itnesses’ testimony that gang’s activities included statutorily enumerated offenses sufficient evidence to support primary activities prong]; People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1465 [same].) Bocanegra cites In re Alexander L. (2007) 149 Cal.App.4th 605, for the proposition the evidence here wa s insufficient to support th e primary activities prong of the gang enhancement. However, in Alexander L ., the expert merely testified “‘I know [the gang] committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I kno w they’ve been involved with auto thefts, auto/vehicle burglaries, felony gra ffiti, narcotic violations.’” ( Id . at p. 611.) The court noted the officer never specified the crim es were the gang’s “primary activities.” Moreover, the court held the officer’s tes timony lacked adequate foundation because it23 was never established how the officer knew those crimes were co mmitted by the gang. ( Id . at p. 612.) Here, unlike In re Alexander L ., Martinez, the People’s expert gang witness, specifically testified SSP’s “primary activitie s” were “[f]elony vandalisms, burglaries, robberies, assaults, assaults with deadly weapons, grand theft autos, thefts, witness intimidation, [and] extortions.” Moreover, more than adequate foundation was laid for Martinez’s opinion. Martinez was “very fam iliar” with SSP. He had been born and raised in SSP territory. When younger, he went to school a nd worked with SSP members. He had at one poin t befriended a SSP member. As a police officer he had been assigned to the Gang Violence Suppression Unit in Pomona for four years. As an officer he had had contact with well over 1500 gang members. Martinez had investigated “num erous crimes,” including firearm offenses, committed by SSP members. He was personally familiar with Victor Hernandez, one of the founding members of SSP. He had ha d one prior contact with Bocanegra where Bocanegra admitted being a SS P member, had reviewed field interrogation cards on Bocanegra completed by other officers, and spoken with other officers regarding Bocanegra. Martinez had had numerous cont acts with SSP member Max Nunez and had arrested him on one occasion. He had had contact with SSP memb er John Rodriguez on several occasions and had assisted in his arrest on one occasion. Thus, adequate foundation was laid for Martinez’s opinion SSP’s primary activities were statutorily enumerated crimes such that substantial ev idence supported the ju ry’s true findings on the gang enhancements.24 E. IMPOSITION OF UP PER TERM ON COUNT 1 Hernandez argues the sentencing court ab used its discretion in imposing the upper term on the count 1 offense. We disagree. “Within the limit s set forth by the Legislature, a tr ial court has broad discretion . . . whether to select the upper, middle, or lower term of imprisonment (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b))[.]” ( People v. Clancey (2013) 56 Cal.4th 562, 498.) “In determining the appropriate term, the cour t may consider the reco rd in the case, the probation officer’s report, other reports . . . and statements in aggr avation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further eviden ce introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the reco rd the reasons for impo sing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provisi on of law.” (§ 1170, subd. (b).) The sentencing court’s decision is subject to review for abuse of discretion. ( People v. Sandoval (2007) 41 Cal.4th 825, 847.) “[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwis e constitute an improper basis for decision. [Citation.]” ( People v. Sandoval , supra , 41 Cal.4th at p. 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. ( People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate senten cing objectives, and its discretionary25 determination to impose a particular senten ce will not be set aside on review.’ [Citation.]” ( People v. Superior Court (

Alvarez ) (1997) 14 Cal.4t h 968, 977-978.) Here, the court indicated its tentativ e determination regarding defendants’ sentencing. It acknowledged defendants’ yout h and the fact that no one was harmed in the commission of the offense in its determina tion to strike the 10-year consecutive term for the gang enhancements. It then permitted argument on the matter. Hernandez’s defense counsel acknowledged, “the Court has really been quite generous in terms of making” its tentative sentencing recommendati on. He likewise admitted Hernandez “has not shown remorse, that is very true.” N onetheless, counsel reque sted imposition of the low term on count 1 based on Hern andez’s lack of a prior reco rd, the affect such a long sentence would have on him, and his youth. Hernandez’s counsel disagreed with the probation officer’s notation Hernandez would be a danger to others if not imprisoned. The court chose to impose “the five y ears as a base term. I believe I have authority to do that. And so that’s what I’m doing. Should be noted that I, basically, reduced the potential of their exposure by 11 years and 8 months. . . . [¶] . . . I’ve considered many factors related to the defendants in this case and balanced that with what justice demands in this case. And I belie ve that the sentence is an appropriate sentence . . . .” The court’s consideration of the factors relevant to the respective defendants and its determination to balance the needs of justice with defendants’ youth and the fact that no one was hurt in the instan t crimes were in proper exercise of its sentencing discretion. ( People v. Sandoval , supra , 41 Cal.4th at pp. 846-847 [“The trial court [is] required to specify reasons for its sentencing deci sion, but [is not] required to26 cite ‘facts’ that support its decision or to weigh aggrav ating and mitigating circumstances”].) Here, defenda nts did not simply use a gun in their commission of the robbery, but pointed it directly at the vic tims and others at the party. Moreover, Bracamontes was verbally thre atened with being shot. The court’s imposition of the aggravated term on the count 1 offense was within its discretion.
F. CRUEL AND/OR UNUSUAL PUNISHMENT Hernandez contends the court’s sentence of 19 years, 4 months violated the state and federal constitutional prohi bitions against cruel and/or unusual punishment. We disagree. First, we note defendant forfeited the c ontention by failing to raise it below. ( People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5; People v. Norman (2003) 109 Cal.App.4th 221, 229.) Second, we find the merits of defendant’s argument wanting. The Eighth Amendment “pr ohibits imposition of a sentence that is grossly disproportionate to the se verity of the crime.” ( Rummel v. Estelle (1980) 445 U.S. 263, 271 ( Rummel ).) But “[o]utside the context of ca pital punishment, successful challenges to the proportionality of pa rticular sentences have been exceedingly rare.” ( Id . at p. 272; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.).) “A punishment may violate the Calif ornia Constitution . . . if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” ( People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136 ( Cartwright ), quoting In re Lynch (1972) 8 Cal.3d 410, 424.) The court, in applying this sta ndard, examines the offe nse and the offender,27 and it compares the punishment with the penalties for other California offenses and crimes in other jurisdictions. ( Cartwright , at p. 1136; Lynch , at pp. 425-427.) California sentencing statutes, howev er, “have long with stood constitutional challenge.” ( Cartwright , supra , 39 Cal.App.4th at p. 1137.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” ( People v. Martinez (1999) 76 Cal.App.4th 489, 494.) Here, defendants’ sentences are not disproportionate when compared to other crimes that do not result in death but result in substantial sentences. (See People v. Felix (2003) 108 Cal.App.4th 994, 1000-1001 [10- year enhancement not cruel and unusual punishment even if juvenile offender had no documented criminal history]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1230-1231 [Affirming 40-years-to-life sentence for 17-year-old gang member with no prior convi ctions for attempted murder with firearm enhancement]; People v. Cisneros (Colo. 1993) 855 P.2d 82 2, 830 [life without the possibility of parole for 40 years not crue l and unusual punishment for possession and sale of drugs with priors of sales of narcotic s, menacing with a knife, and violation of bail conditions].) Even if California statutes impose the lo ngest sentences in the nation, it does not mean defendants’ punishment is cruel and unusual. ( People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) Califor nia is not required to confor m its Penal Code to either the majority rule or “‘the least comm on denominator of penalties nationwide.’ [Citation.]” ( Ibid .) We conclude defendants’ sentence s are not so disproportionate “‘as28 to shock the conscience and offend fundament al notions of human dignity.’ [Citation.]” ( People v. Cline (1998) 60 Cal.App.4th 1327, 13 38 [Fourth Dist., Div. Two].) Defendants fare no better under the federa l standard. The hurdles defendants must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under th e state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases cited .) Strict proportionality between crime and punishment is not requ ired. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “g rossly disproportionate” to the crime.’ [Citation.]” ( Cartwright , supra , 39 Cal.App.4th at p. 1135; see also Harmelin v. Michigan , supra , 501 U.S. at p. 1001.)
In Rummel , supra , 445 U.S. 263, the United Stat es Supreme Court rejected an Eighth Amendment challenge to a life senten ce based on the defendant’s conviction for credit card fraud of $80, passing a $28.36 fo rged check, and obtaining $120.75 by false pretenses. ( Rummel , at pp. 265-266, 268-28 6.) Additionally, in Harmelin v. Michigan , supra , 501 U.S. 957, the high court ruled that a mandatory sentence of life without the possibility of parole for possession of 672 gr ams of cocaine did not violate the Eighth Amendment. ( Id . at pp. 961, 995.) By contrast, wh at defendants did was far worse than all the crimes committed by Rummel and Harmelin combined. Defendants pointed a gun at the victims; threatened to shoot unless th ey obtained the victim s’ laptops; stole the victims’ laptops, one of which was worth $17 ,000; and did so, at least in part, for the purpose of gaining notoriety for their gang.29 In addition, the United St ates Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony, in the face of challenges that such senten ces violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-year-to-life sentence under “Three St rikes” law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63, 82- 83 [two consecutive 25- year-to-life terms for two separate thefts of less than $100 worth of videotapes].) The protection afforded by the Eighth Am endment is narrow. It applies only in the “‘exceedingly rare’” and “‘extreme’” case. ( Ewing v. California , supra , 538 U.S. at p. 21.) We are not convinced this is such a case. He rnandez exposits Miller v. Alabama (2012) 132 S.Ct. 2455, for the pr oposition the sentences of 19 ye ars, 4 months in this case are cruel and unusual. However, that decisi on determined only that “mandatory lifewithout-parole sentences for juvenile s violate the Eighth Amendment.” ( Id . at p. 2464, fn. omitted.) Here, defendants were not sent enced to life without parole. Nor was the sentence imposed a virtual life sentence as defe ndants were 17 and 18 years of age at the time of sentencing. Both defendants were awarded 144 days of credit for time served. Even if neither defendant earned any conduct credit while imprisone d, they would both be released well before their fortieth birt hdays. Defendants’ sentences were neither violative of the state nor federal constitutiona l prohibitions against cruel and/or unusual punishment.30 DISPOSITION The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

HOLLENHORST J.