Filed 3/21/13 P. v. Guzman CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
CHRISTIAN GUZMAN et al.,
Defendants and Appellants. B239850
(Los Angeles County Super. Ct. No. TA117370)

APPEALS from judgments of the Superior Court of Los Angeles County, Patrick Connolly, Judge. Affirmed. Katharine Eileen Greenebaum, under Ap pointment by the Court of Appeal, for Defendant and Appellant , Christian Guzman. Kevin D. Sheehy, under Appointment by the Court of Appeal , for Defendant and Appellant, Agustine Edgar Cuevas. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Paul M. Roadarmel, Jr., and William N. Frank, Deputy Attorn eys General, for Respondent.

_____________ ______________2 Christian Guzman and Agustine Edgar Cu evas appeal from the judgments entered after a jury convicted them of assault with a firearm and ot her crimes committed for the benefit of a criminal street gang. We rema nd to correct a sentencing error conceded by the Attorney General, but otherwise affirm. 1

FACTUAL AND PROCED URAL BACKGROUND
1. The Information Guzman was charged by amen ded information with making a criminal threat (Pen. Code, § 422) (count 1), 2 carrying a concealed firearm (§ 12025, subd. (a)(2)) (count 2) and assault with a firearm (§ 245, subd. (a )(2)) (count 4) with special allegations the
crimes had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A) & (b)(1)(C)) and he ha d personally used a firearm in committing the offenses charged in counts 1 and 4 (§ 12022.5, subd. (a)). Cuevas was charged with making a criminal threat (count 1), the unlawful dr iving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 3) and assault with a firearm (count 4) with special allegations
the crimes had been committed fo r the benefit of a criminal st reet gang (§ 186.22, subd. (b)(1)(A) & (b)(1)(C)) and a principal had been armed with a firearm in connection with counts 1 and 4 (§ 12022, subd. (a)(1)). Guzman and Cuevas pleaded not guilty.
2. Summary of the Evidence Presented at Trial

a. The People’s evidence Luis Estrada was collecting admission fees at a party in Watts after midnight on March 26, 2011 when Guzman, Cuevas and three ot her men approached. Estrada testified, after he had repeatedly refused Guzman’s demand his gr oup be admitted free, Guzman said, “Let us in or I’m going to shoot you.” Estrada felt something cold and

1 In addition to the sentenci ng error discussed in our op inion, the Attorney General acknowledges the minute order entered followi ng Guzman’s and Cuevas’s convictions and the abstracts of judgment s hould be corrected to state th e statutory basis for the fiveyear criminal street gang enhancement is Penal Code section 186.22, subdivision (b)(1)(B), not (b)(1)(C).
2 Statutory references are to the Pe nal Code unless otherwise indicated.3 metallic pressed against his stomach. Cuev as, who was standing inches behind Guzman, said, “Step aside if you don’t want to get s hot.” During the confrontation Estrada heard someone say the group would not pay because “this is our hood,” 3 and announce a gang name “South Side Watts.” The group then pushed Estrada aside and barged into the party. Estrada told the disc jockey to stop the party because he did not want anyone to get hurt. As people began to leave, Estrada sa w a white truck, driven by Cuevas, spinning its tires before driving off. 4 Justin Mancillas was standing about 10 feet away from Estrada when he saw Guzman “had [Estrada] against the fence.” Guzman and the four me n with him appeared to Mancillas to be gang memb ers: They wore baggy clot hes, and one had tattoos. Mancillas initially denied he had told friends a nd officers who responde d to the scene that Guzman had a gun. Upon further ques tioning on direct examination, Mancillas acknowledged he had testified at the prelim inary hearing he saw Guzman point a black gun at Estrada and explained he was afraid to testify at trial. Mancillas then testified he did see Guzman pointing a gun toward Estr ada’s stomach “from the side angle.” However, during cross-examina tion by Cuevas’s counsel Ma ncillas clarified he did not actually see the gun. Rather, he saw Guzman first reach his right hand to his waist band
and then raise his arm toward the front of his body; Mancillas assumed, and Estrada told him, Guzman had a gun. Mancillas told his friend to call the police.

3 Estrada initially testified he did not know who made this comment, but later testified it was Guzman.
4 We deny Cuevas’s request to take judi cial notice of informa tion in an ABC news story and Wikipedia about the effect of nitr ous oxide, which some witnesses testified Estrada had been using despite his denial. Even if the information is properly subject to judicial notice (see Evid. C ode, § 452, subd. (h) [“facts and propositions that are not reasonably subject to dispute and . . . capabl e of immediate and accu rate determination by resort to sources of reasonably indisputable accuracy”]) and bears directly on Estrada’s credibility, as Cuevas contends, “‘it is the excl usive province of the trial judge or jury to determine the credibility of a witness and the truth of falsity of the facts upon which a determination depends.’” ( People v. Elliott (2012) 53 Cal.4th 535, 585.)4 Los Angeles Police Officer Mario Leonidas testified he saw a white truck spinning its tires when he and his partner arrived at the scene. Estrada and Mancillas flagged down Leonidas, telling him, “Those two guys in the car pointed guns at us.” Leonidas pursued the white truck, which had driven away. After detaining Cuevas, who was driving, and the passenger, Yony Lima, Leoni das returned to the scene and located
Mancillas. Mancillas then iden tified Guzman, who was leani ng on an SUV parked in a driveway, as the assailant with the gun. Leonidas saw Guzman place a revolver between the tire and wheel well as he was looking at him. Leonidas and another officer immediately approached, recovered a blue st eel revolver loaded with five rounds of
ammunition and detained Guzman. Six more rounds of ammunition were recovered from
the floorboard of the white truc k Cuevas had been driving. Los Angeles County Sheriff’s Deputy Chri s Mezzano, testifying as a gang expert, explained he was assigned to a gang unit that monitors the Florencia 13 criminal street gang, one of the largest gangs in Los Ange les County. The gang has numerous rivals, including the South Side Watts, 5 which claims as its territo ry the area where the party occurred. Mezzano opin ed Guzman was a memb er of the “Termite” clique of Florencia 13 based on several facts, including that he ha d “F-13” tattooed on his left wrist and “Los Termites” tattooed on his neck, had been served with a crim inal street gang injunction issued against members of Florencia 13, an d had been arrested twice with another Florencia 13 gang member. Mezzano testifie d he believed Cuevas was an Florencia 13 gang member based on the “SC” tattoo on his arm, which, although not necessarily related to a gang, is a common tattoo for me mbers of Florencia 13, and his association with other Florencia 13 gang members, incl uding Juan Lozano, one of the people who
had confronted Estrada. 6 Mezzano opined Guzman an d Cuevas had committed their

5 “South Side” denot es Hispanic gangs.

6 “SC” denotes the South Central area of Los Angeles. Lozano, who was also served with the criminal street gang injunc tion against Florencia 13 members, had F-13 tattooed on his chest and SC on his wrist.5 crimes to benefit the Florencia 13 gang: By going to a party as a group in South Side Watts territory and threatening the doorman after he refused to let them in free, they were sending a message that Florencia 13 was to be feared, permitting its members to do what they want. By threatening to shoot the door man, they were enhancing their individual reputations in the gang. Additionally, by c oncealing a firearm, they were making the firearm available to any gang member who may want to use it should the need arise. Acknowledging the only gang name announced was South Side Watts, not Florencia 13, Mezzano conceded on cross-examination gang members would not shout out a rival gang name in order to gain no toriety for their own gang. Nonetheless, minimizing the significance of the apparent contradiction, Mezzano explained, “When they commit crimes, they don’t want to be directly associat ed with the crime. . . . So it’s not uncommon and it does happen. And I’ve i nvestigated cases where oftentimes gang members will shout out a rival gang’s name af ter they commit a crim e because they don’t want the attention to come right back on them.” 7 Mezzano further explained, “[P]eople at that party or wherever that’s occurring, [for] the most part, have an idea who they are. I mean, the fact that they ye ll out a rival’s name doesn’t necessarily mean they’re not trying to put their gang out there, they’re no t putting in work for th e gang. It actually helps them amongst each other, it gives them bragging rights, lo ok what we did for Florencia, you know, them going out there [committing viol ent crimes] together.”
b. The defense evidence
Guzman admitted he is a me mber of the Termite clique of the Florencia 13 gang and the gun and bullets recovered were his. He testified he went to the party with some

7 Los Angeles Police Detective Patrick Flah erty, one of the investigating officers, testified primarily about the white truck Cu evas had been driving. During crossexamination and on redirect, however, Flaher ty, who was then assigned to a gang impact team, was asked about Florencia 13 and ga ng member behavior generally. Flaherty testified it would be unlikely a Florencia 13 gang member would go into another gang’s territory and claim a different gang. But, he added, “in the past, throughout some of my investigations, there have been times where ga ngsters will pose as their rival gangsters to get in to do shootings, and that’s happene d on a number of occasions that I can remember.”6 friends to have a good time, and his brothe r dropped him off. While he was waiting in line, Guzman heard people in front of him say they would not pay to get into a party in their “hood,” “South Side Watts.” He knew th ey were members of a rival gang, but he
could not leave because his brother had lef t; so he walked in behind the rival gang members without paying. Realizing he wa s “in the wrong place,” Guzman called his brother to pick him up. While he was waiti ng outside, Guzman saw Lima, who he knew was a fellow Florencia 13 gang me mber, in the white truck. Li ma agreed to give Guzman a ride. However, before they drove away, Guzm an’s brother arrived. Guzman got out of the truck, leaving behind bullets he had taken out of his pocket. Guzman then saw the police, panicked and put the gun in the wheel well of the SUV. Guzman testified he
would not claim “South Side Wa tts” because “it’s not even my hood” and he “could get beaten up or even killed” if his fellow gang members ever found out he was doing that. Cuevas testified his girlfriend called, as king him to pick her up from the party after midnight. She sounded afraid and said people were fighting. Cuevas called Lima, an old friend and a Florencia 13 gang membe r, to accompany him because he felt more
comfortable with him there. Cuevas borrowed the white truck and left Lima in it while he got into line. Suddenly, “everybody just burst into the party,” and Cuevas followed. After the music stopped, Cuevas went outsid e where he saw Guzman talking to Lima.
Cuevas claimed he did not know Guzman. As Lima asked Cuevas if they could give Guzman a ride, Guzman’s brother arrived; an d Guzman left. For “fun,” Cuevas decided to “show off and burn . . . my tires” after seeing other cars do the same. Police officers pulled over the truck shortly thereafter. Cuev as denied he was a member of a gang and insisted he got his “SC” tattoo beca use he was a fan of USC football.
Lima admitted he is a member of the Mald itos clique of Florencia 13. He testified
he and Cuevas had been best friends since hi gh school but Cuevas was not a member of the gang. Lima’s descripti on of his and Cuevas’s presen ce at the scene was largely
consistent with Cuevas’s.7 3. The Trial Court’s Ruling No Instructi on on Simple Assault Was Warranted After informing counsel it would instruct the jury on assault w ith a firearm, the
trial court indicated it did not intend to inst ruct on the lesser included offense of simple
assault because the defendants’ theory of the case was “the w itnesses in this matter were confused as to who they saw complete this action or do wh atever was done out
there . . . .” Defense counsel confirmed the court’s understanding. The court ruled, “So under [ People v. Breverman (1998) 19 Cal.4th 142 ( Breverman )], I think that they’re either going to find it was an assault that was done [by] one or both of the defendants, or it’s nothing at all, or its going to be not guilty. So I think under Breverman , I don’t believe that it would be appropriate to give a misdemeanor instruction of simple assault.” Defense counsel did not object.
4. The Jury’s Verdict and Sentencing The jury found both Guzman and Cuevas guilty on all counts and found true the special allegations. The trial court sentenced Guzman to an aggregate state prison term of 17 years, comprised of the low term of two years for assault w ith a firearm plus the high term of 10 years for the firearm enhancem ent plus five years for the criminal street gang enhancement. Sentence for making a criminal threat and carrying a concealed firearm was imposed and stayed pursuant to se ction 654. The court sentenced Cuevas to an aggregate state prison term of eight years eight months, comprised of the low term of two years for assault with a firearm plus one year for the firearm enhancement, plus eight months for the unlawful taking of a vehicle, plus five years for the gang enhancement. Sentence for making a criminal threat was impos ed and stayed pursuant to section 654.
CONTENTIONS
Cuevas contends the trial court committed prejudicial error by failing to instruct the jury on assault as a lesser included offense of assault with a firearm and the firearm
enhancement should be stri cken as unauthorized. Guzman contends there was
insufficient evidence the crimes were committed for the be nefit of a criminal street gang.8 DISCUSSION
1. The Decision Not To Instru ct on Simple Assault Wa s Not Prejudicial Error The trial court in a criminal case has a dut y to instruct on general principles of law applicable to the case ( People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those principles closely and openly connected with the facts be fore the court, and which are necessary for the jury’s unders tanding of the case.’”’” ( People v. Valdez (2004) 32 Cal.4th 73, 115.) This oblig ation includes the duty to instruct on a lesser included offense if the evidence raises a question whether the elements of the lesser included offense, but not the greater offense, are present. ( Ibid. ; Breverman , supra , 19 Cal.4th at p. 154.) The duty “arises even against the de fendant’s wishes, and regardless of the trial
theories or tactics the defend ant has actually pursued.” ( Breverman , at p. 162.) However, the existence of “‘ any evidence, no matter how weak’” will not justify
instructions on a lesser included offense. Ther e must be “‘evidence th at a reasonable jury could find persuasive.’” ( Ibid. ; see Blair , at p. 745 [“[t]o justif y a lesser included offense instruction, the evidence supporting the instru ction must be substant ial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist” ].) In addition, the failure to instruct on a lesser included offense in noncapital cases is “at most, an error of California law alone” requiring reversal only when “an examina tion of the entire record establishes a reasonable probability the error affected the outcome.” ( Breverman , at p. 165.) Cuevas contends the trial court had a duty to instruct on simple assault as a lesser
included offense of assault with a firearm because Mancillas’s tes timony presented “two materially divergent stories”: First, Manc illas testified he never saw a gun, but only heard about it from Estrada. Later, Mancilla s testified he saw Guzman make motions consistent with the raising of a firear m and assumed he ha d one, which Estrada subsequently confirmed. Cuevas argues Mancillas’s inconsistent testimony constituted sufficient evidence to support a jury finding Guzman assaulted Estrada without using a firearm. Thus, Cuevas aided an d abetted only a simple assault.9 No simple assault instru ction was warranted. The ev idence was overwhelming a gun was used in the assault: Guzman admitt ed he brought a gun to the party; Estrada
testified Guzman and Cuevas th reatened to shoot him and he felt a cold, metallic object pressed against his stomach. Mancillas only brie fly maintained at trial he did not see a gun and readily explained when confronted with his contrary testimony at the preliminary hearing, he was afraid to testify at trial. He then admitted he believed Guzman had a gun
because he saw motions consiste nt with the raising of a gun. Mancillas’s initial statement he only heard about the gun from Estrada, standing alone, is simply not sufficient evidence from which a reasonable jury could conclude an assault occurred without the
use of a firearm. Even if an instructi on on simple assault was arguably justified, moreover, on the record here there is no reasonable probability Cuevas would have benefitted from it. (See Breverman , supra , 19 Cal.4th at p. 165.)
2. Sufficient Evidence Supports the True Finding on the Gang Enhancement To obtain a true finding on a gang enha ncement allegation, the People must prove the underlying offense was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186 .22, subd. (b)(1).) This, in turn, requires proof of two rela ted elements: First, there must be evidence the underlying felony was “committed for the benefit of, at th e direction of, or in association with any criminal street gang.” Second, there must be evidence the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members .” ( People
v. Albillar (2010) 51 Cal.4th 47, 51 ( Albillar ); People v. Gardeley (1996) 14 Cal.4th 605, 615-616.) 8 Emphasizing that Estrada and Mancillas testified someone id entified South Side Watts, not Florencia 13, and no one displayed a gang sign or indicated in any way a gang motive, Guzman contends there was insuffici ent evidence to suppor t the jury’s true

8 Guzman does not challenge the sufficien cy of the evidence to establish Florencia 13 was a criminal street gang.10 finding because the crimes co mmitted did nothing to enhan ce his own reputation within the gang or otherwise benefit Florencia 13. 9 Guzman correctly observes not every crime committed by a gang member is a gang-related crime for pu rposes of section 186.22, subdivision (b)(1 ) (see, e.g., Albillar, supra, 51 Cal.4th at p. 60; People v. Morales (2003) 112 Cal.App.4th 1176, 1198) and “something more than an expert witness’s unsubstantiated opinion that a crime was committ ed for the benefit of, at the direction of, or in association with any criminal street ga ng is required to justify a true finding on a gang enhancement.” ( People v. Ochoa (2009) 179 Cal.A pp.4th 650, 660.) 10 Viewing the evidence in the light most favorable to the judgment, as we must, it is sufficient to support the gang enhancement. The first element may be established by
substantial evidence the crime was committed “in association with” a criminal street gang, that is, that two or more gang member s committed the crime together, unless there is evidence that they were “on a frolic and detour unrelated to the gang.” ( People v. Morales, supra, 112 Cal.App.4th at p. 1198 [absent evidence of frolic and detour, “jury could reasonably infer the requisite associ ation from the very fact that defendant committed the charged crimes in association with fello w gang members]; accord, People

v. Leon (2008) 161 Cal.App. 4th 149, 162; see Albillar
, supra , 51 Cal.4th at p. 62 [when

9 “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. [Citations.] 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, 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 reevaluate s a witness’s cr edibility.’” ( Albillar, supra, 51 Cal.4th at pp. 59-60.)
10 Guzman also argues Estrada weighed a mere 95 pounds, so it is difficult to understand how Guzman or the gang could benefit from the assault of such a small man; and, although Estrada and Mancillas testified they though t Guzman and his confederates were gang members, they did not kn ow to which gang they belonged.11 evidence establishes defendants came together as gang members to atta ck the victim, jury properly found they committed the crime in association with the gang].) The evidence is
unassailable Guzman committed th e crimes with other Flor encia 13 gang members: Lima admitted his membership in the gang , and there was strong evidence Lozano and
Cuevas were members of Florencia 13 as well. As for the frolic-and-detour contention, the jury, as it was permitted to do, rejected Guzman’s testimony he simply went to the party to have fun and Cuevas and Lima’s te stimony they went to the party to pick up Cuevas’s girlfriend—the only ev idence offered of activity that might be unrelated to the gang. In addition, Deputy Mezzano explai ned how the crimes benefitted Florencia 13’s reputation in the community—and the ga ng members status in the gang— notwithstanding they did not announce the name of the gang. It was within the province of the jury to credit Mezzano’s explanatio n, which was not inhe rently improbable, notwithstanding Guzman’s and Cuev as’s arguments to the contrary. The second element—specific intent to prom ote, further or assist in any criminal conduct by gang members—is al so satisfied here from the evidence the crimes were committed jointly by several gang members. “[I]f substantial evidence establishes that
the defendant intended to and did commit the charged fe lony with known members of a gang, the jury may fairly infer that the defe ndant had the specific intent to promote, further, or assist criminal conduct by those gang members.” ( Albillar
, supra , 51 Cal.4th at p. 68; accord, People v. Livingston (2012) 53 Cal.4th 1145, 1171; see People v.
Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommi ssion of a crime in concert with known gang members is substa ntial evidence which suppor ts the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”].)
3. The Matter Must Be Remanded for Resent encing of Cuevas As the Attorney General concedes, the trial court’s imposition of the one-yearfirearm enhancement pursuant to section 12 022, subdivision (a)(1 ), with respect to
Cuevas’s conviction for assau lt with a firearm was unauthorized because use of a firearm is an element of the offenses. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 855-12 856.) Although Cuevas contends the enhanc ement should simply be struck, the proper action is to remand for resentencing. (See People v. Woods (2010) 191 Cal.App.4th 269, 273 [“[w]hen an unlawful sentencing decision is made . . . , the proper course of action is
to allow the trial court to lawf ully exercise its discretion and impose a lawful sentence”].) The trial court may have selected the middl e term of three year s for the aggravated assault conviction, instead of the low term of two years, if it realized it could not impose a one-year enhancement under section 12022, subdivision (a )(1). It is within the province of the trial court to co nsider this issue on remand.
DISPOSITION The judgment is reversed as to Cuev as and remanded for further sentencing proceedings. The minute order entered followi ng Guzman’s and Cuevas’s convictions is modified to state the statutory basis for the five-year gang enhancement is section 186.22, subdivision (b)(1)(B). In all other re spects the judgments are affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

JACKSON, J.