1 Filed 10/30/14 P. v. Rocha CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DANIEL NINO ROCHA, Defendant and Appellant. E059570 (Super.Ct.No. RIF1303076) OPINION

APPEAL from the Superior Court of Rive rside County. Bernard Schwartz, Judge. Affirmed with directions. Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez, and Lynne G. McGinnis , Deputy Attorneys General, for Plain tiff and Respondent.2 I INTRODUCTION Defendant Daniel Nino Rocha appeals from judgment entere d following jury
convictions for assault with a fir earm (Pen. Code, § 245, subd. (a)(2) 1 ; count 1), possession of a firearm by a felon (§ 29800, subd . (a)(1); count 2), and participation in a street gang (§ 186.22, subd. (a); count 3)). Th e jury also found true the enhancements of personally using a firearm and personally inf licting great bodily injury (GBI) as to count 1 (§§ 12022.5, subd. (a ), and 12022.7, subd. (a)). As to counts 1 and 2, the jury found true allegations that the crimes were committed for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)). In addition, defendant admitted he served on e prior prison term (§ 667.5, subd. (b)) and had one prior serious felony conviction (§ 667.5, subd. (a )) and one prior strike conviction (§§ 667, subds. (a) & (e)(1), and 1170.12, subd. (e)(1)). The trial court sentenced defendant to an aggregate prison term of 38 years and eight months. Defendant contends the trial court’s ad mission of preliminar y hearing testimony by David Jackson and Bernie Davis violated defe ndant’s constitutional rights to confrontation, due proce ss, cross-examination, co mpulsory process, and a fair trial, and to present a defense. Defendant also contends there was insufficient ev idence to support his convictions, and the trial court erred in fa iling to give a clarifying instruction on the meaning of “in association with any criminal street gang.” Defendant further argues

1 Unless otherwise noted, all statutor y references are to the Penal Code.3 there was insufficient evidence to support the gang enhancements, and the sentence on count 3 must be stayed. We conclude ther e was no prejudicial error, with the exception the sentence on count 3 must be stayed under sec tion 654. In all other regards, we affirm the judgment.
II FACTS As Jackson was arriving home on October 10, 2012, around 9:45 p.m., he noticed two men on his street, Hillside Drive. The men looked “wei rd” to him. After parking and entering his home, he heard his dogs barking and noise comi ng from his backyard gate which adjoins the backyard of his neighbor, David Herrera. 2 Jackson went outside and saw one or two people runn ing from his house, up the street. Jackson went to David’s house and told him someone had been in David’ s backyard and jumped his fence. Jackson, David, and his cousin Bernie Davis got into Jackson’s four-door truck and drove about 300 feet, in the direction Jackson had seen the two men running. Jackson drove up to the two men and stopped. David, Davis, and Jackson got out of the truck and confronted the two men. David ha d already started wrestling with one of the two men as Davis went around the truck to th e other side where they were fighting.

2 To avoid confusion, w itnesses David Herrera and Gabriel Herrera, who share the same last name but are not related, will be referred to by their first names. We will also refer Bernie Davis’s wife, Jordan Davis, by her first name, and to sisters, Marissa, Selena, and Liana Holmes, by their first names. All others will be referred to by their last names.4 While David was fighting with one of the men, the other man shot Jackson in the left hand, both legs, and stomach. Jackson said , “‘Help me. Help me. Get me to the hospital. I’m down. . . . I’m going to die. I’m going to die.’” Jackson claimed he did not have a gun when he was shot. His wife ’s gun was in the glove compartment of his truck. Davis testified that, after Jackson was shot, Jackson or David told Davis to pick up Jackson’s gun on the ground and put it in th e truck glove compartment box. Davis did so. Davis and David picked up Jackson, pu t him in the truck, and drove him to the hospital. Robert Peters, who lived on Hillside Drive, testified at trial that on October 10, 2012, around 9:45 p.m., he hear d about six rapidly fired gunsh ots. Robert’s wife called 911. Robert grabbed his fire arm, ran to the front door, op ened the door, and saw a gray or black SUV with its headlights on and engine running, in front of his driveway. There were about four individuals running around the car, with the driver and passengers switching seats. Robert yelled from his front door, “What’s going on?” After the second time he yelled this, a young man said, “It’s not me. They’re shooting at us.” Robert said, “‘Then get out of here,’” and they sped off. Ten or 15 mi nutes later the police arrived. Officer Bennett responded to the call. Th e dispatcher said a black SUV had left the shooting scene on Hillsid e Drive. Bennett observed a black SUV leaving the area, reported it to dispatch, and followed the SUV to the hospital. Officer Segura provided backup, following Bennett’s unit. Upon the SU V’s arrival at the hospital, the officers conducted a felony stop. A man got out of the back of the SUV, yelling, “‘I’ve been shot.5 I’ve been shot.’” The officers identified th e man as Jackson and assisted him in getting medical help. The officers returned to th e Hillside Drive area to determine the location of the crime scene and search for ev idence. Bennett contacted Ro bert and his wife, who told Bennett there had been gunshots in the area of their home and two men had been seen jumping over a retaining wall, a nd running through the front yard of another residence. Several other witnesses also saw the two me n going over the retain ing wall. Bennett saw two sets of foot prints in the wet grass by the retaining wall of a nearby home. Law enforcement secured the home on Hillside Drive, with an officer watching the back of the home. A taxi came to pick up Marissa at the home. Be nnett approached her as she walked out to the cab. At Be nnett’s request, Marissa called her mother, Rosanna Saubel, and asked her to come outside. Rosanna came out and told Bennett there were no suspects in her house. Only her two other da ughters were there. Rosanna consented to the officers searching her home to co nfirm the suspects were not there. Bennett, Officer Feola, and Police Serg eant Hobb entered Ro sanna’s home with guns drawn. Rosanna’s two daughters, Selena and Liana, were in the living room. Feola went to the back of the house and outside, where he chased a suspect in the backyard. He apprehended and arrested the individual, w ho was identified as Gabriel Herrera. Feola notified Bennett of the arrest by radio as Benn ett continued searching the house. Bennett told Selena and Liana th at they could be subject to arrest if they did not tell him if anyone else was in the house. Selena pointed to a bedroom and indicated someone was in there. Bennett told Hobb and Feola, who had reente red the house, that someone was possibly in6 the bedroom. Feola yelled for the individual to come out with his hands up. A short time later, defendant crawled out of the bedroom. After defendant was arrested, the officers thoroughly searched the house. Selena indicated to Bennett that he should look in the laundry room. Bennett found in the clothes hamper, under some clothes, a semi automatic .45-caliber handgun. There was a magazine in the gun and on e cartridge in the chamber. Officer Segura spoke to Jackson at the hospi tal. Jackson told him he saw two men jump over David’s fence. Jackson went next door to tell David. David, Davis, and Jackson got into Jackson’s SUV to look for the two men. Wh en they found the men, they confronted them about being at Jackson’s re sidence. One of the two men fought with David on someone’s front lawn and the other individual shot Jackson. Davis similarly told Segura that, while he was having dinner with David, Jackson came over and said two men were in David’s backyard. David, Jacks on, and Davis went to look for the two men in Jackson’s truck. They found the two me n a short distance away. Davis confirmed the man who shot Jackson was not the man who was fighting with David. Police Detective David Loera conducted se parate infield show-ups at the police station. Davis identified defendant and Gabrie l as the two perpetrators. Davis identified defendant as the shooter and said, “‘I’m pretty sure that’s him.’” “‘It was dark.’” However, at the preliminary hear ing, Davis recanted his identif ication. He testified he could not see anyone because “[i]t was really dark and it happened so quick.” Jackson testified at the preliminary hearing that he was positive defendant was not the shooter and that he could recognize defenda nt because he went to sch ool with defendant. Jackson7 described him as a “good guy” and said defendant was not a gang member. 3
Gabriel testified at trial that on Octobe r 10, 2012, after drinking at home, he “blacked out,” and then went to Selena’s house. He jumped over the ga te and knocked on the back door. She invite d him into only the laundry room. Gabriel borrowed her phone and went outside to call his mother. When he heard the police arrive, he ran because he was on parole. De fendant was not with him that evening. Defendant and Gabriel are cousins. Gabriel claimed he di d not know defendant was in the house. Gabriel pled guilty in the inst ant case to assault with a d eadly weapon (his fists). Gabriel said that, although he had gang tattoos and was a documented gang member, he was “trying to do better with [his] life.” Gabrie l admitted he was convicted in 2009 of giving a false iden tification to police officers a nd of being an active member of a criminal street gang. He pled guilty to the criminal street gang offense. Gang Expert Testimony Sergeant Hobb testified as a gang expert for the prosecution. Hobb stated that Eastside Banning Sapos gang (ESBS) is the larg est gang in the Banning/Beaumont area. There are three cliques within the gang: the Santos, the Ma d Ass Youngsters, and the Pee Wee Locos. The gang’s primar y activities are auto thefts, dr ug sales, thefts, burglaries, and possession of guns. Nongang members usually refuse to cooperate with law enforcement when ESBS is involved because of fear of retaliation and intimidation by the
gang.

3 Davis and Jackson’s preliminary heari ng testimony was read to the jury, since they were found to be unava ilable at the time of trial.8 According to Hobb, ESBS committed two predicate crimes. On May 29, 2009, Hobbs stopped a vehicle driving in a nei ghborhood where there were reports of shootings. Three ESBS members were in the car. Hobb found two loaded firearms in the

car. The second predicate crime was on January 6, 2010, when five ESBS members, including defendant, got out of a car at an in tersection and chased the 18-year-old victim and his brother. The brother es caped but the ESBS members se verely beat up the victim, who was wearing a leg brace. A passerby inte rvened and called the police. Defendant was arrested and charged with assault with a deadly weapon and a gang enhancement. In Hobb’s opinion, defendant and Gabr iel were active ESBS members. During several police interviews, including in the in stant case, defendant admitted membership and said he had a gang monike r. Defendant also had numerous gang tattoos and was seen on his brother’s website throwi ng gang signs. Gabriel also admitted gang membership, beginning in 2007, and claimed to be a member of the Pee Wee Locos ESBS clique. He had a moniker and several gang tattoos. Hobb also knew Rosanne Saubel. He had been in her home and had seen ES BS graffiti on her daughter’s bedroom walls and door frame. Hobb testified he would be suspicious if he saw two ESBS members walking around a neighborhood, jumping over fences, and looking in to backyards. He would suspect the men were looking for someone or so mething to steal. In Hobb’s opinion, if defendant fired a gun at a civilian, the crime would benefit ESBS by instilling fear in the community and allowing ESBS to operate w ith impunity, since w itnesses and victims would be afraid to contact law enforcement. Defendant’s possession of a gun also9 benefited ESBS, because it was used to prot ect defendant from other gang members and law enforcement. Gun possession allowed defe ndant to harm others and commit crimes. According to Hobb, it can be assumed that, if a citizen confronts two gang members, the gang members will respond violently in defens e of their turf, because the gang’s reputation is at stake. A violent resp onse would benefit the gang. Hobb strongly believed that defendant’s crim es were committed for the bene fit of ESBS. The violence escalated from a fistfight to discharging a gu n against Jackson. Defendant and Gabriel’s violent response demonstrated the gang’s willingness to hurt othe rs and warned the community of ESBS’s presence in the community. It also showed that ESBS was not afraid to commit crimes and di d not fear law enforcement.
III PRELIMINARY HEARING TESTIMONY Defendant contends that admitting into evidence Jack son and Davis’s preliminary hearing testimony violated his constitutional rights to present a defense, confrontation, due process, cross-examination, compulsory process, and a fair trial. We disagree. A. Procedural Background During a pretrial hearing under Evidence Code section 402 (402 hearing), the prosecutor informed the court that Jackson and Davis were unavailable to testify at trial. Davis testified in this case at a pr eliminary hearing in December 2012, 4 and Jackson testified at a separate prelim inary hearing in this case in April 2013. The prosecutor

4 Ramirez erroneously testified the pre liminary hearing occu rred in 2011, which would have been before th e charged crimes occurred.10 maintained that after Jackson and Davis te stified at the preliminary hearings, they actively evaded service. The prosecution’s in vestigator, Edward Ramirez of the district attorney’s office, testified dur ing the 402 hearing that he wa s asked in February 2013, to locate Jackson and Davis and took the following action. Jackson Ramirez discovered Jackson had moved af ter the subject shooting incident. Ramirez contacted Jackson before the prelimin ary hearing, at his new address in April 2013. During Ramirez’s first contact with Jack son, Jackson refused to answer the door. He said he did not want to ha ve anything to do with the case and wanted to be left alone. Jackson became belligerent. Ramirez left. A day or two later, two other investigators served Jackson with a subpoena, and Jackson agreed to appear in court. Ramirez took Jackson to court to testify at defendant’ s preliminary hearing. Jackson, who was cooperative, indicated he was willing to testif y, and testified at de fendant’s preliminary hearing. Jackson was told at the preliminary hearing that he would be needed for trial. In preparation for trial, the prosecutor asked Ramirez again to locate Jackson. Ramirez went to Jackson’s last known reside nce and no one answer ed the door. No one appeared to be living at the residence. Rami rez left his business card at Jackson’s home. A neighbor across the street said Jackson had moved away about two weeks before. Ramirez spoke to a supervisor at the U.S. Post Office, who indicated there was no forwarding address for Jackson. Ramirez attempted to locate Jackson’s wi fe. He searched various databases and checked them daily for new information rega rding Jackson and his wife. Ramirez also11 checked Jackson and his wife’s Department of Motor Vehicles (DMV) records. Nothing produced a more recent residence address. Ramirez routinely checked jail records for Jackson and requested the Rive rside County Sheriff’s Depart ment to notify him if there were any contacts with Jackson. Jackson’s wife, who is Native American I ndian, receives funds from her tribe. Ramirez attempted to obtain information rega rding Jackson’s wife through the tribe but tribal members would not cooperate. Tribal police officer Gomez told Jackson that, even if Ramirez knocked on tribal me mbers’ doors, they would not talk to him or answer their doors. Ramirez also went twice to Jackson’s mother’s home in Redlands. She told Ramirez she had nothing to do with her son a nd did not speak to him. She asked Ramirez to leave her property. Rami rez acknowledged he did not know if Jackson was actually actively evading service, since Jackson mi ght not know Ramirez was looking for him. Davis Davis moved after the preliminary hearing. Ramirez’s efforts to locate Davis after he moved included searching various database s. Ramirez routinel y checked Davis’s jail records to see if he was in custody. Ra mirez also provided information on Davis to various law enforcement agencies, including the Banning task fo rce and the deputy district attorney assigned to the rese rvation, to assist in locating him. Ramirez met with the Moro ngo tribal police chief, a nd spent a day conducting surveillance on the Indian reservation, sin ce Davis’s wife, Jordan Davis, is Native American Indian. Ramirez discovered she re ceived money from the tribe and had a home12 on the reservation. Jordan’s mother and othe r relatives also lived on the reservation. Ramirez met with the tribal police and went with them to Jordan ’s relatives’ homes on the reservation. Ramirez and another inves tigator conducted four hours of surveillance where Jordan picked up her tr ibal check. Jordan did not appear during the surveillance. If a tribal check is not picked up, it is mailed to the member. On the day of the surveillance, Rami rez provided the tribal police with photographs of Davis. The tribal police indica ted they would try to locate Davis. When Ramirez spoke to the tribal police, he was told the tribal police would not provide any information because they did not trust law enforcement. Ramirez was told he was “spinning [his] wheels by talking to them.” When Ramirez attempted to get the address used for disbursement of the tribal funds to Davis and Jordan, tribal officer Gomez told Ramirez he could not directly go to the person disbursing the funds and ask for Davis and Jordan’s address. If he did as k, he would not be provided w ith an address. Gomez said he would try to obtain a list of addre sses for Ramirez that same afternoon and immediately call Ramirez when he received it, but Gomez never called Ramirez back. The home Ramirez was told Jackson and Jord an were building on the reservation was merely a mailbox on the main road . There was no construction. Ramirez checked three addresses for Davis provided by the Banning Police Department. At each address, people who occ upied the residences to ld him Davis and his wife no longer lived there. Ramirez checked a post office box address for Jordan. The address was Jordan’s mother’s address on th e reservation. Officer Gomez told Ramirez he was not permitted to go to Jordan’s mother’s address. Unless it was an emergency,13 Ramirez had to be accompanied on the reserv ation by Officer Gomez when searching for someone. Gomez went to Jord an’s mother’s residence and then told Rami rez Jordan’s mother’s vehicle was not there. Gomez said it would be fruitless for Ramirez to try to talk to her because no one at Jordan’s mother’s home would talk to law enforcement. Ramirez spoke to Davis’s father six or seven times, from February 2013, up until a week before Ramirez’s testimony at the 402 hearing in July 2013. Ramirez contacted Davis’s father at Davis’s last known addr ess in Banning. Davis’s father was not cooperative. He said he had not seen Da vis since the shooting incident, which Ramirez did not believe. When asked fo r contact information for Davis, Davis’s father said he had none. Twice Ramirez also spoke to Da vis’s grandmother who lived next door to Davis’s father. She said she did not know where Davis was. Ramirez was unable to find out anything regarding Davis or Jordan’s lo cation. The cell phone numbers Ramirez was given for Davis and Jordan were no longer in service. Ramirez did not have any information on whether Davis a nd Jordan were employed. Ramirez checked an address on Nicolet, which a police officer told Davis defendant frequently visited. Ramirez cond ucted surveillance there for two hours, with no results. Ramirez also condu cted surveillance at Davis’s father’s home a few times for one to two hours but did not see Davis. Ramirez met with the Banning Police Department three or four times to see if th ey had seen Davis. Ramirez believed Davis was aware Ramirez was looking for him, and was actively avoiding service. Ramirez believed Davis was living with Jordan on the reservation.14 402 Hearing on Admissi bility of Preliminary Hearing Testimony During the hearing on excluding Davi s and Jackson’s preliminary hearing testimony, the prosecution argued Ramirez ha d exercised due diligence in attempting to procure Davis and Jackson’s attendance at tria l but was unable to locate them. Therefore the witnesses were unavailable to testify at trial and their preliminary hearing testimony was admissible. The trial court concluded there was no additional information regarding Jackson and Davis’s location and nothing furthe r that could be done to find them. They might be on the Indian reservation but law enforcement could not se arch the reservation because of denial of access and lack of c ooperation by the tribal police and tribal members. The court fo und that reasonable efforts were made to locate the witnesses. Therefore Jackson and Davis we re unavailable as witnesses and their preliminary hearing testimony was admissible at trial under Evidence Code section 1291. During the third day of trial, Jackson a nd Davis’s preliminar y hearing testimony was read to the jury. Later, the morning of July 9, 2013, the prosecutor informed the court that defense counsel had told him J ackson was in custody. Defense counsel informed the court Jackson was found at Ba nning Road Camp and was currently at the Larry Smith facility, with an arraignmen t scheduled for the following morning in department 63 of the Riverside Superior C ourt. The prosecutor offered to have his investigators bring Jackson to the court to spea k with an investigator. The court indicated Jackson would testify the following day, wh en in court for arraignment on the other criminal matter. Later, in the afternoon on July 9, 2013, th e prosecutor advised the court that, when his investigators went to pick up Jackson, they discover ed he was not in the15 Banning jail. He was arrested on June 25, 2013, and released that same day on bail. Jackson’s bail bondsman told the prosecutor Jackson had given him a false address. However, Jackson was due in court on July 10, 2013. The prosecutor requested closing arguments be con tinued one day to allow Jackson to testify in the case, after he appeared in court, in departme nt 63, on July 10. The court agreed to continue closing argument until July 11, 20 13. It was anticipated that during the morning of July 10, Jackson would te stify after arraignment in department 63. If Jackson did not show up, the parties could proceed with closing argument. On July 10, 2013, th e prosecutor informed the cour t that defendant did not show up for arraignment in department 63. Jackso n had two cases in Banning and had not been in court for two of his last three court app earances. Jackson was arrested on the Indian reservation. The court clerk in the instant ma tter was instructed to inform department 63 that, if Jackson appeared, the instant court ne eded to know immediately. If defendant did not appear in the Riverside courthouse by the time evidence wa s completed, jury instructions would be discusse d and the parties would proceed with closing arguments. After the close of evidence, the court info rmed the parties that, according to the clerk in department 63, Jackson did not appear for arraignment. The prosecutor stated his investigator went to the address Jackson had given his bail bonds man and the house was vacant, with a car next to the house covere d in dust. After waiting there a couple of hours, the investigator conclude d no one lived at the house. Later, after a recess, the court informed th e parties that Jackson appeared in court in Banning, not in department 63 in Riversid e. Jackson indicated he had been in the16 hospital and appeared in cour t in a hospital gown. His arraignment in Banning was continued. The court in Riverside advised co unsel in the instant ca se that there was no warrant out for Jackson and, sin ce he had not been ordered to appear for defendant’s trial, the court did not have authority to issue a wa rrant for his appearance. The parties agreed to proceed with de fendant’s trial. The following day, July 11, 2013, the cour t again told the parties that the court clerk in Banning had called a nd confirmed that Jackson ha d walked into the Banning courtroom on July 10 in a hospita l gown, with his sister. He had left the hospital against the wishes of hospital personnel. His Coumad in levels were out of control and he was scheduled for surgery on July 11, for complic ations relating to his gunshot wound from the charged shooting incident. He intended to return to the hosp ital after leaving the Banning court. The court issued a warrant for defendant, pending until July 24, 2013. When the trial court in the in stant case asked counsel if th ey wanted anything further done regarding Jackson, counsel said no. The trial thereaft er continued to completion, with neither Jackson nor Davis appearing at trial. B. Applicable Law The confrontation clauses of the fede ral and state Constitu tions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) “‘“An ex ception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under fe deral constitutional law, such testimony is admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of17 the witness at trial.” [Citations.]’” ( People v. Fuiava (2012) 53 Cal.4th 622, 674-675 ( Fuiava ).) Under Evidence Code section 1291, subd ivision (a)(2), “[e]vidence of former testimony is not made inadmissible by the hearsa y rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in whic h the testimony was given and had the right and opportunity to cross-examin e the declarant with an intere st and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a )(2).) A witness is unavailable if “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unab le to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).) “Due diligence” is required under section 240. (See Fuiava, supra, 53 Cal.4th at p. 675.) “‘[T]he term “due diligence” is “incapable of a mechanical definition,” but it “connotes persevering application, untiring efforts in good earn est, efforts of a substantial character.” [Citations.] Rele vant considerations include “‘ whether the search was timely begun,’” [citation], the importance of the witness’s testimony [citation], and whether leads were competently ex plored [citation].’ ( People v. Cromer (2001) 24 Cal.4th 899, 904.)” “‘It is enough that the People used reasonable effo rts to locate the witness.’ [Citation.]” ( Fuiava, at p. 677.) “‘[T]he Sixth Amendment does not require the prosecution to exhaust every avenue of i nquiry, no matter how unpromising.’” ( Ibid. ) When the facts are undisputed, a review ing court decides the question of due diligence independently, not deferentially. ( Fuiava, supra, 53 Cal.4th at p. 675.)18 Applying this standard of re view, we conclude the trial c ourt properly admitted Jackson and Davis’s preliminar y hearing testimony. C. Analysis Defendant’s reliance on People v. Sandoval (2001) 87 Cal.App.4th 1425 ( Sandoval ) for the proposition the prosecution did no t exercise due diligence in procuring Davis’s and Jackson’s attendance at trial, is misplaced. In Sandoval , the absent witness was deported to Mexico after testifying at the defendant’s preliminary hearing. ( Id. at p. 1432.) The witness told the prosecution he was willing to return for the trial if given money to make the trip to California. ( Ibid. ) The prosecution refused to provide financial assistance to the witness and did nothi ng further to secure his attendance at the trial. ( Ibid. ) Although the trial court had no authority to compel the witness’s appearance at trial ( id. at p. 1434), the Sandoval court noted the United States and Mexico had a treaty providing for cooperation in the prosecution of crimes and mutual assistance in obtaining witness testimony. ( Id. at pp. 1439-1440.) The treaty included several cooperative methods by which a Mexi can resident’s testim ony could be obtained, either in California or in Mexico. ( Id. at p. 1439.) The Sandoval court stated that, “[A] good faith effort must be u ndertaken even though the court itself does not have the power to compel the attendance of the witness.” ( Id. at p. 1441.) The Sandoval court concluded that the prosecution’s failure to pursue any of the cooperative methods provided in the treaty precluded a finding of good faith. ( Id. at p. 1444.) The court thus held the absent witness residing in Mexico was not unavailable and therefore admitting his preliminary hearing testimony violated the defendants’ constitutional right to confront witnesses.19 ( Ibid. ) Here, unlike in Sandoval , there was no evidence of any applicable treaty, accord, or agreement controlling extradition of witnesse s or cooperation with local authorities. In addition, Jackson and Davis’s current addres ses were unknown. It was uncertain they even lived on the Indian reserva tion. The trial court in the instant case found Jackson and Davis unavailable, not because they reside d on the reservation, which was foreign, sovereign territory, but because Ramirez could not locate the witnesses. Also, there was substantial evidence that, unlike in Sandoval , the witnesses were ac tively evading service and the prosecution had exercise d due diligence in attempting to locate the two witnesses, to no avail. Unlike in Sandoval , here, the Indian tribe was not cooperative in assisting the prosecution in locating and making Jackson and Davis available. Evidence establishing due diligence in cluded Ramirez’s te stimony he visited Jackson and Davis’s last known residences ; conducted surveilla nce; contacted the witnesses’ relatives, including Jackson’s mo ther and Davis’s fath er and grandmother; attempted to locate the witnesses’ wives; checked with the post office and DMV for contact information; ran daily database sear ches for information regarding the witnesses and their wives; and enlisted the assistance fr om the tribal police in locating the witnesses and their wives. Ramirez’s efforts to locate Jackson and Davis extended over a substantial period of time, up until the trial in July 2013. Even though there may have been additional acts Ramirez could have taken to locate Jackson and Davis, we conclude Ramirez’s efforts to locate the two witnesses were reasonably diligent and in good faith. The prosecution was not required to do ev erything possible to procure Jackson and20 Davis’s attendance at trial; “it was only re quired to use reasonable diligence.” ( People v. Lopez (1998) 64 Cal.App. 4th 1122, 1128.) Defendant further argues that when Jack son was located midtrial, the prosecution failed to urge the trial court immediately to arrange for his seizure under section 1332. Section 1332, subdivision (a), pr ovides in relevant part that “when the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense, whether the witness is an adult or a minor, will not appear and testify unless security is required, at any proceeding in connection with any criminal prosecution . . . the court may order the witne ss to enter into a written undertaking to the effect that he or she will appear and testif y at the time and place ordered by the court or that he or she will forfeit an amount the court deems proper.” Defendant asserts that th e prosecution shoul d have urged the court to contact Jackson’s attorney and request assistance in producing Jack son. Defendant also argues the prosecutor should have ur ged the court to contact the Banning court and arrange for Jackson’s detention and an un dertaking or at least identif y the hospital where Jackson was receiving treatment. Although these we re actions the pros ecutor could have requested, the prosecutor’s failure to do so does not demonstr ate a lack of due diligence under the circumstances in this case, par ticularly since defense counsel was equally capable of requesting such m easures, and did not do so. Even if the prosecutor made such requests, it is unlikely the tr ial court would have ordered Jackson detained for purposes of test ifying at trial since Jackson was in poor health and would have been unavailable to testify in the near fu ture because he was21 currently hospitalized , the hospital staff had advised him not to leave the hospital, and he was scheduled for surgery on Ju ly 11, which was when closi ng argument was scheduled. Any orders mandating Jackson ap pear in court to testify would have re quired delaying completion of the jury trial until after Jackson rec overed from his surgery. Furthermore, the discovery of Jackson’ s location occurred near the end of defendant’s trial, after Jackson and Davis’s preliminary testimony ha d already been read to the jury. The trial cour t nevertheless attempted to arrange for Jackson’s testimony immediately upon being informed Jackson had been located. The prosecutor made every effort to cooperate and agreed to accomm odate scheduling Jackso n’s testimony before concluding the trial. It was initially believed that Jack son would appear for arraignment in the same courthouse where the trial wa s pending in the instant case and therefore would be available to testify in the trial. Arrangements were accordingly made to postpone closing argument and jury instru ctions. However, Jackson unexpectantly showed up in the Banning court house, rather than the Rivers ide courthouse, and was in poor health, with surgery scheduled the fo llowing day, which was the final day of defendant’s trial. At that point, both partie s indicated they did not wish to take any further action to force Jackson to testify. Under such circumstances, admission of Jackson and Davis’s preliminary heari ng testimony did not vi olate defendant’s constitutional rights.
IV SUFFICIENCY OF EVIDENCE OF CHARGED CRIMES Defendant contends there was insuffi cient evidence iden tifying him as the22 perpetrator of the charged crimes. Defendant argues that the only identification evidence consisted of police detective David Loera conducting infield show-ups at the police station. Davis identified defendant and Gabrie l as the two perpetrators. Davis identified defendant as the shooter, stating, “‘I’m pretty sure that’s him.’” “‘It was dark.’” However, at the preliminary hear ing, Davis recanted his identif ication. He testified he could not see anyone because “[i]t was really dark and it happened so quick.” Jackson testified at the preliminary hearing that he was positive defendant was not the shooter and that he could recognize defenda nt because he went to sch ool with defendant. Jackson described him as a “good guy” and said he was not a gang member. Defendant notes there was no evidence connecting the .45-caliber gun to defe ndant or that Jackson was shot with the gun. A. Standard of Review “‘In reviewing the sufficiency of eviden ce under the due process clause of the Fourteenth Amendment to th e United States Constitution, the question we ask is “whether, after viewing the ev idence in the light most fa vorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ [Citations.] We apply an identical standard under the California Constitution. [Citation.] ‘In determining whet her a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorab le to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” ( People v. Young (2005) 34 Cal.4th 1149, 1175.)23 When reviewing the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor ev identiary conflicts. [Citation. ] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is suffi cient to support a conviction.” ( People v. Young,

supra, 34 Cal.4th at p. 1181.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothes is whatever is there suffici ent substantial evidence to support’” the jury’s verdict. ( People v. Bolin (1998) 18 Cal.4th 297, 331.) B. Analysis There was substantial evidence supporting the jury’s finding defendant was the perpetrator of the charged cr imes. Police detective Loera testified at trial that he conducted infield show-ups at the police stat ion, during which Davis identified defendant and Gabriel as the two perpetrators. Davis fu rther identified defendant as the shooter and said, “‘I’m pretty sure that’s him.’” This evidence alone was su fficient to support the jury’s finding that defendant was the pe rpetrator of the ch arged crimes. ( People v. Cuevas (1995) 12 Cal.4th 252, 263-275 ( Cuevas ).) Even though during the preliminary hear ing Davis contradicted his out-of-court identification and claimed he could not identi fy the shooter, such inconsistent testimony was suspect. Davis’s preliminary hearing tes timony described in detail the events leading up to and during the shooting. Yet, when he was asked to identify the shooter, Davis was suddenly unable to provide any details whatsoever. He stated , “I’m not too sure. I can’t identify nobody. [¶] . . . [¶] It was re ally dark and it happened so quick.”24 When determining the suffici ency of evidence of an uncorroborated out-of-court identification, this court should consider “t he many varied circumstances that may attend an out-of-court identification and affect its probative value. These circumstances include, for example: (1) the identifyi ng witness’s prior familiarity with the defe ndant; (2) the witness’s opportunity to observ e the perpetrator during the commission of the crime; (3) whether the witness has a motive to falsely im plicate the defendant; and (4) the level of detail given by the witness in the out-of-cou rt identification and any accompanying description of the crime. (See also CALJIC No. 2.92 (5th ed. 1988) [listing factors relevant to reliability of ey ewitness identification].)” ( Cuevas, supra, 12 Cal.4th at p. 267.) Davis may not have had prior familiarity with defendant but the evidence shows that he had ample opportunity to observe defe ndant as he, Jackson, and David drove up to defendant and Gabriel on the street. The ju ry could reasonably infer that Davis saw defendant before, during, and/or after defenda nt shot Jackson. There was little, if any, evidence that Davis had a motive to falsely implicate defendant. In addition, Davis’s description of the events leading up to, during, and after the shooting was detailed. Circumstances this court considers when a witness fails to id entify the defendant at trial, include: “(1) whethe r the identifying witness admits, denies, or fails to remember making the out-of-court identific ation; (2) whether the witn ess remembers the underlying events of the crime but no longer belie ves in the accuracy of the out-of-court identification; (3) whether, if the witness claims th e identification was false or erroneous, the witness offers an explanation for maki ng a false or erroneous identification; (4)25 whether, if the witness claims a failure of recollection, there are reasons supporting the loss of memory; (5) whether there is evidence that th e witness’s failure to confirm the identification in court resulte d from the witness’s appreciation that doing so would result in the defendant’s conviction; or (6) whethe r there is evidence th at, as the Attorney General suggests occurred here, the witness’s fa ilure to confirm the identification arises from fear or intimidation.” ( Cuevas, supra, 12 Cal.4th at pp. 267-268.) At the preliminary hearing, Davis adm itted identifying defe ndant during the outof-court identification but, duri ng the preliminary hearing, sa id he no longer believed in the accuracy of the identification because he based it on defendant’s clothing and was scared. However, when asked at trial what clothes defendant and Gabriel were wearing, defendant said he did not know, “I’m not too sure. Probably black – black, white, gray. I’m not sure.” Furthermore, during Davis’s out-of-court id entification of defendant, Davis did not mention defendant’s clothing. Davis did not testify his id entification was false and he did not explain why he identified defendant right after the incident but could not do so at the preliminary hearing. Davis merely said, “I’m not too sure. I ca n’t identify nobody.” He added, it was dark and the crime “happened so quick.” Davi s did not claim any loss of memory and described the incident in detail. Ther e was no evidence Davis was aware his identification would result in defendant’s c onviction but this was relatively apparent. Furthermore, since defendant and Gabriel were known gang members, there would be reason for Davis to fear identifying them as perpetrators, particularly after defendant’s brutal shooting of Jackson.26 In addition to Davis’s identification of defendant as the perpetrator, there was substantial corroborating evidence establishi ng that defendant shot Jackson. Jackson testified at the preliminary hearing that th e man who shot him was not the man who was fighting with David. Officer Segura testifie d at trial that Jacks on and Davis said David confronted two individuals and, while fightin g one of the two men, the other man fired the gun. Gabriel testified at tr ial that he had pled guilty in the in stant case to “[a]ssault to fighting.” Gabriel acknowledge d he had a bump on his face which he believed was from fighting during the shooting incident. Additi onal evidence defendant was the individual who fired the gun, included testimony that shortly after the shooting, defendant and Gabriel were seen running to Saubel’s home and the police foun d defendant inside Rosanna Saubel’s home. The po lice also found a gun hidden in a laundry basket in the home and Gabriel was apprehended in Saubel’ s back yard. The jury could reasonably infer from this eviden ce that Gabriel was the individu al fighting David and defendant fired the gun at Jackson. The evidence as a whole, including Lo era’s testimony that Davis identified defendant as the shooter, was sufficient to su pport the jury’s finding that defendant was the perpetrator of the charged crimes.
V GANG ENHANCEMEN T INSTRUCTION The jury found true the gang enhancem ents on counts 1 and 2. Defendant contends that, when instructing on the gang enhancements, the trial court erred in failing to instruct the jury sua spon te on the meaning of the ph rase, “in association with a27 criminal street gang.” The trial court gave CALCRIM No. 1401 on the elements of the criminal street gang enhancement but th ere was no definition of the phrase, “in association with a criminal street gang.” The jury was instructed on the elements of the crimin al street gang enhancement pursuant to CALCRIM No. 1401 in relevant part as follows: “To prove this allegation, the People must prove that: [¶] 1. The defendan t committed the crime for the benefit of, at the direction of or in association with a criminal street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or promote criminal conduct by the gang members.” (Italics added.) Defendant argues that under People v. Albillar (2010) 51 Cal.4th 47, 60-62 ( Albillar ), “in association with a crim inal street gang” is a legal term with a specific definition which the trial court must define for the jury. In resp onse, the People argue CALCRIM No. 1401 sufficiently instructed the ju ry on the law and no further instruction was required absent a request. “The trial court has a sua sp onte duty to give correct instructions on the basic principles of the law applicable to the case that are necessary to th e jury’s understanding of the case. [Citation.] That du ty requires the trial court to in struct on all the elements of the charged offenses and enhancements. [Citation.]” ( People v. Williams (2009) 170 Cal.App.4th 587, 638–639 [Fourth Dist., Div. Two].) When the terms are used as commonly understood, the court has no obligation to define them absent a request for amplification or explanation.28 Citing Albillar, supra, 51 Cal.4th at page 60, defendan t asserts that the term “‘in association with any criminal street gang’ re quires a showing that [he] ‘relied on . . . common gang membership and the apparatus of the gang in committing’ the charged crime.” In Albillar, three fellow gang members were convicted of forcible rape and forcible sexual penetration, while acting in concert. In rejecting the defendants’ contention that there was insuffi cient evidence that the sexual offenses were committed in association with the defendants’ gang, the Supreme Court relied on the gang expert’s testimony regarding gang membership and re asons for gang members committing crimes. ( Albillar, supra, 51 Cal.4th at pp. 60-61.) Applying the evidence to th e expert’s testimony, the Albillar court concluded, “Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other’s cooperation in committing these crimes and that they woul d benefit from committing them together. They relied on the gang’s internal code to ensure that none of them would cooperate with the police, and on the gang’s reputation to en sure that the victim did not contact the police. We therefore find substantial evid ence that defendants came together as gang members to attack [the victim] and, thus, that they committed these cr imes in association with the gang. [Citations.]” ( Albillar, supra, 51 Cal.4th at pp. 61-62.) The Albillar court did not provide a new defin ition for the phrase “in association with any criminal street gang,” or hold that the phrase has a technical meaning requiring sua sponte instruction in fu ture cases. The court in Albillar merely discussed the sufficiency of the evidence in establishing the elements of the criminal street gang29 enhancement. The trial court does not have a duty under Albillar to define, sua sponte, the phrase, “in association with any criminal street gang.” Since in the instant case, defense counsel did not request instruction on the meaning of the phrase, “in association with a criminal street gang,” the trial c ourt did not commit inst ructional error by not defining the phrase.
VI SUFFICIENCY OF EVIDENCE OF GANG ENHANCEMENTS Defendant contends there was insuffi cient evidence to support the gang enhancements on counts 1 and 2. Imposing a gang enhancement requires substantial evidence the defendant committed the underlying felony (1) “for the benefit of, at the direction of, or in association with any crim inal street gang,” and (2) “with the specific intent to promote, further, or assist in a ny criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) Defe ndant contends there was insuffi cient evidence establishing these elements. We disagree. Evidence defendant committed the charge d offenses for the benefit of and in association with a gang included evidence defendant committed the crimes with another gang member, Gabriel, who pled guilty to fi ghting during the shoo ting incident. There was also gang expert testimony by Detectiv e Hobb, establishing that defendant and Gabriel were active members of the ESBS gang and that defendant’s crimes were committed for the benefit of his gang. It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a findi ng on a gang allegation. ( People v. Ferraez (2003) 112 Cal.App.4th 925, 930 .) California law permits a person30 with “‘“special knowledge, skill, experience, tr aining, or education” in a particular field to qualify as an expert witness (Evid. Code, § 720) and give testimony in the form of an opinion ( id., § 801).’” ( In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 ( Frank S. ).) Defendant cites Frank S., supra, 141 Cal.App.4th 1192 for the proposition the prosecution failed to prove the first gang-related prong. In Frank S. , police stopped a minor for riding his bicycle through a red light . The juvenile court found true allegations that the minor was carrying a concealed knife, was in possession of methamphetamine, and made a false representation to a peace o fficer. The minor challenged on appeal, on sufficiency of evidence gr ounds, the gang enhancement allegation that the minor possessed the knife for the benefit of his gang. The Frank S. court reversed the gang enhancement, holding that “crimes may not be found to be gang-related based solely upon a perpetrator’s criminal hi story and gang affiliations.” ( Frank S., supra, 141 Cal.App.4th at p. 1195.) The instant case is distinguishable from Frank S. in that in the instant case there was evidence defendant was w ith another gang member, Gabr iel, when he committed the charged offenses. Defendant shot Jackson while Gabriel wa s fighting with David, after Jackson, David, and Davis accused defendant and Gabriel of trespassing on Jackson and David’s property. Defendant and Gabriel were both seen fleeing together from the shooting scene and shortly afterwards we re apprehended on Saubel’s property. There was also expert testimony, unlike in Frank S. , that defendant and Gabriel’s acts of fighting David and s hooting Jackson, was typical gang-related retaliation to confrontation, committed for the benefit of de fendant’s gang and with intent to promote31 it. As Hobbs explained, if gang members are confronted by citizens, it is typical for gang members to react violently, and such a response would benefit the gang. In the culture of gangs, such confrontation could not go unaven ged and would warrant a retaliatory strike. By reacting violently, defendant and Gabrie l enhanced their gang’s reputation in the community and encouraged citiz ens to leave their gang al one, through intimidation and fear. Furthermore, “[c]ommission of a cr ime in concert with known gang members is substantial evidence which sup ports the inference that th e defendant acted with the specific intent to promote, further or a ssist gang members in the commission of the crime.” ( People v. Villalobos (2006) 145 Cal.App.4th 3 10, 322 [Fourth Dist., Div. Two].)
VII SENTENCING ERROR The People do not oppose defendant’s contention his sentence on count 3 (participation in a street gang (§ 186.22, subd. (a)) must be stayed under section 654. The trial court imposed a consecutive term on count 3 of one ye ar four months. Under People v. Mesa (2012) 54 Cal.4th 191, 193, section 654 precludes punishment for both participation in a stre et gang (§ 186.22, subd. (a)) and underlying felonies (assault with a firearm and possessi on of a firearm by a felon), which transform mere gang membership (a noncri me) into the crime of actively participating in a criminal street gang. On resentencing, the sent ence on count 3 must be stayed. (See People v. Ahmed (2011) 53 Cal.4th 156, 164 [section 654 “bars multiple punishment for the same32 aspect of a criminal act.”].) Defendant ca nnot suffer multiple p unishments for active gang participation and th e underlying felonies. ( Mesa, at pp. 197-198.)
VIII DISPOSITION The judgment is ordered modified to stay the one-year-four-month sentence on count 3 (participation in a street gang) unde r section 654. In all other regards, the judgment is affirmed. The trial court is di rected to prepare a co rrected abstract of judgment and to forward it to the Depart ment of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

RAMIREZ P. J.

McKINSTER J.