Filed 12/17/14 P. v. Machuca CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

GREGORIO MACHUCA and DONTAY PRICE,
Defendants and Appellants. B249032
(Los Angeles County Super. Ct. No. BA384881)

APPEAL from a judgment of the Superior Court of Los Angeles County. Craig J. Mitchell, Judge. Affirmed as modified. Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant Gregorio Machuca. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant Dontay Price. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ __________2 Appellants Gregorio Machu ca and Dontay Price were eac h convicted of one count of attempted premeditate d murder (Pen. Code, 1 §§ 664, 187, subd. (a)) with true findings on gang enhancement allegations (§ 186. 22, subd. (b)) and firearm enhancement allegations (§ 12022.53, subds. (c), (e)). Ma chuca also was convicted of one count of possession of a firearm by a felon (§ 12021, su bd. (a)), with a separate true finding on a gang enhancement allegation. On appeal from their judgments of conviction, Machuca and Price argue the evidence was insufficient to support th e gang enhancements, and the trial court erred in allowing improper gang ex pert testimony. Price further contends there
was insufficient evidence to support his attempted murder conviction, and the trial court erred in failing to instruct the jury on the lesser included o ffense of attempted voluntary manslaughter. Machuca also asserts the trial court committed certain errors in sentencing him. We affirm the judgments of convictio n for both Machuca and Price, but order the
modification of the trial court’s written sent encing orders for Machuca to correct the sentencing errors.

FACTUAL BACKGROUND A ND PROCEDURAL HISTORY
I. The Charges The Los Angeles County Dist rict Attorney charged Ma chuca and Price with one count of attempted willful, deliberate, and premeditated murder ( §§ 664, 187, subd. (a)) [count one], and Machuca with one count of possession of a firearm by a felon (§ 12021, subd. (a)) [count two]. As to the attempted murder count, it was alleged that a principal personally and intentionally discharged a fi rearm during the commission of the crime (§ 12022.53, subds. (c), (e)). As to both counts, it was allege d that the crime was committed for the benefit of, at the direction of, or in association with a crim inal street gang, and with the specific intent to promote, furthe r, or assist in criminal conduct by gang members (§ 186.22, subd. (b)). Machuca a nd Price each pleade d not guilty to the charges and denied the sentence enhancement allegations.

1 Unless otherwise stated, all further stat utory references are to the Penal Code.3 II. The Evidence at Trial
A. The Shooting On May 25, 2011, at about 2:40 p.m., Los Angeles Police Detectives Alex Jacinto and Timothy Stack were riding in an unmarked po lice vehicle in the area of Venice and Rimpau Boulevards. As their car was stopped at an intersection, Detective Jacinto saw Machuca and Price, whom he knew from prio r police contacts, leaving a shopping center parking lot in a silver Ford Focus. Price, who is Black, was the driver, and Machuca, who is Hispanic, was the passenger. Price wa s wearing a red hat. Approximately 10 to 15 minutes later, a shooting occurred on Wa shington Boulevard about two miles from
where Detective Jacinto had s een Machuca and Price. At about 2:50 p.m., Leon White was driv ing on Washington Boulevard when he heard two to four gunshots. White saw a h eavyset Hispanic man standing about 25 yards from White’s car and holding a dark-colored gu n in his right hand. The shooter had his arm raised to shoulder height and was pointing the gun in the direction of a man riding a bicycle. The man abandoned th e bicycle and fled on foot. The shooter then got into a gray vehicle that headed at a normal rate of speed in the same direction as the man who dropped the bicycle. White tr ied to follow the vehicle as he called 911. While speaking with operator, White heard a second round of gunshots coming from a block away. In his 911 call, White described the suspect vehicle as a gray Ford Focus and the shooter as a Hispanic man weighing 230 pounds and weari ng blue jeans and a dark shirt. In an interview with the police shor tly after the shooting, White described the shooter as a heavyset Hispanic male and the driver of the vehicle as a Black male. At a field show-up held later that day, White iden tified Machuca as the shooter. At the time of the shooting, Laura Dampf and a friend were sitt ing inside Dampf’s parked car on Washington Boulevard. Damp f heard multiple gunshots in close proximity
to her vehicle and crouched down in the driver’s seat, but oc casionally peered up through her car window. Dampf saw a heavyset Hispan ic man in a black charcoal shirt chasing another Hispanic man on a bicycle. The man being chased abandoned the bicycle and ran away, and the other man got into a grey ca r that was stopped near Dampf’s vehicle.4 Dampf could see the silhouette of the dr iver, who was a smaller, possibly AfricanAmerican man. As the gray car sped aw ay, Dampf wrote down its license plate number and then called 911. Dampf told the 911 oper ator that she heard approximately five shots and described both the suspect and the victim as Hispanic men wearing dark clothing. She also said that the suspect got into a small silver or gr ay car and recited the license plate number. In an interview with the polic e at the scene, Dampf described the shooter as a heavyset Hispanic man and the driver as a Black male. She was unable to positively identify Machuca at a field show-up held later that day, but felt that he could have been
either the shooter or the vic tim based on his physique.
Three unidentified individuals also called 911 to report the shooting. One caller reported hearing five to eight gunshots down the street from his home. Another caller heard six rapid-fire shots and saw two Hispan ic men running on Wash ington Boulevard. He then heard additional guns hots from further down the str eet. The third caller reported seeing a heavyset Hispanic man trying to shoo t another Hispanic man on a bicycle as the
shooter chased him do wn the street.

B. The Police Investigation Approximately 15 minutes after seeing Machuca and Price leave the shopping center parking lot in a Ford Focus, Detectiv es Jacinto and Stack received a police radio broadcast of the shooting, including a descriptio n of the suspect vehicle. As they were driving toward the scene, Detective Jacinto s potted a Ford Focus parked in the driveway of Machuca’s residence, which was less than 100 feet from where the second round of shots was fired. The detectives decided to stop at the residence to in vestigate. As they approached the driveway, Detective Jacinto saw a Black man running from the back of the residence. The man jump ed over a wall and was able to flee on foot. Detective Jacinto did not see the man’s face, but observed that he was similar to Price in height and built and was wearing a red hat. Detective Ja cinto placed his hand on the hood of the Ford Focus, which was warm.5 All of the occupants of the residence, in cluding Machuca, were ordered outside. After obtaining consent to search the residen ce, the police recovered a long-sleeved black
shirt and a short-sleeved black shirt from Machuca’s bedroom, and two bullets from a
dresser drawer. Machuca was arrested and ta ken into custody. Later that day, the investigating officers returned to the reside nce with Machuca, who told them to look inside the air filter compartmen t of a pick-up truck parked in the driveway. The officers
recovered a Smith & Wesson nine-millimeter semi-automatic handgun with an empty magazine from the air filter compartment, and a gun holster from the garage. Dampf later identified the Ford Focus found at Machuca’s residence as the car that she had seen during the shooti ng. The police ran the license plate number on the vehicle in the Department of Motor Vehicles (DMV) database, which showed that the registered
owner of the Ford Focu s was Price’s mother. 2 In a subsequent search of the vehicle, the police recovered a DMV registration card in Price’s name. Shortly after the shooting, the police found six spent nine-millimeter casings on the ground near the corner of Washington Boulevard and Thurman Avenue. Another six casings and two bullet fragments were found ab out four blocks away near the corner of Washington Boulevard and Carmona Avenue. Th e casings were dented due to traffic in the area. Approximately 10 feet from the lo cation of the second set of casings, the police observed bullet impact marks on a pole and wr ought iron gate, and recovered a bullet from a parked car with a sha ttered window. The spent casi ngs and bullet fragments were
later matched to the firearm th at was seized from the truck at Machuca’s residence. The police were not able to identif y the victim of the shooting, nor did they find any evidence of injury at the scene. The day after the shooting, the police co llected video surveillance footage from a business in the area. The video footage showed a Hispanic man believ ed to be the victim riding a bicycle on Washington Boulevard wh ile looking over his shoulder. The man

2 The license plate number that Dampf re ported to the police was 4GDZ756. The license plate number of the Fo rd Focus found at Machuca’s residence was 4JDZ756.6 then turned and rode his bicycle in the oppos ite direction as he continued to look to the rear. After veering into the street and almo st colliding with a vehi cle, the man dropped the bicycle and fled on foot. The video foot age also showed another Hispanic man whom the police believed to be Machuca walking in the same direction as the victim while holding an object in his hand. A short tim e later, a car resembli ng a Ford Focus drove into an alley near Washington Boulevard, and then drove back out of the alley as soon as
Machuca crossed the street.

C. The Gang Evidence Los Angeles Police Officer Sean Stablewski testified as an expert on the 18th Street Gang. He had been a sworn police o fficer for eight years and a gang officer for four years. In 2008, after two years on pa trol, Officer Stablewski was assigned to the gang enforcement detail for the Southwest Division where his primary duties were to monitor and suppress criminal activity by the 18th Street Ga ng. The following year, he transferred to the gang enforcement detail fo r the Wilshire Division where he continued
to focus on the criminal activ ities of the 18th Street Gang . As a gang officer, Officer Stablewski interacted with ga ng members on a daily basis, investigated gang-related crimes, and studied gang culture. He estimated that he had over a thousand contacts with gang members, including both cr iminal arrests and consensual encounters in the field. Officer Stablewski testified that gangs are highly territorial and fight to claim certain geographic areas as their own. Ga ngs members mark thei r territory by writing graffiti that identifies their gang or moniker, and they disrespect ri val gangs by defacing their rivals’ graffiti. Fear, respect, and repu tation are important aspects of gang culture. A gang that commands respect is able to conduct illegal activities without interference from rival gangs or the surrounding community . A gang builds its reputation and gains respect by committing crimes and instilling fear in its rivals and community residents. Gangs typically operate under a hierarchical st ructure that is comprised of “soldiers” who commit crimes, “shot callers” who direct the gang’s activities, and “original gangsters” who resolve disputes with rival gangs.7 According to Officer Stablews ki, the 18th Street Gang is one of the largest gangs in the world and has 8,000 to 12,000 members in Los Angeles. It is a predominantly Hispanic gang, but includes some Black an d other non-Hispanic members. While the gang does not identify with a specific color, its me mbers use the number “18” in various combinations as a common symbol in their tatt oos, clothing, graffiti, and hand gestures. The gang claims an approximat ely five-square-mile area in Los Angeles as its territory, and its main rivals are gangs that border that geographic area. The shooting in this case took place in the territory cl aimed by the 18th Street Gang. Officer Stablewski opined that 18th Street gang members, both individua lly and collectively, have engaged in a pattern of criminal activity, and that the primary activities of the gang include murder, attempted murder, robbery, and assault. Specific crimes committe d by 18th St reet gang members in the past included grand theft and unlawful taking of a vehicle in September 2008 and felony vanda lism in July 2008. Officer Stablewski was personally familia r with Machuca based on their prior
contacts in the field. Machuca had been a member of the 18th Street Gang for about 10 years and went by the moniker “Al Capone.” He had a number of gang-related tattoos on his arms, hands, legs, chest, back, and head, and had admitted his me mbership in the 18th Street Gang to Officer Stablewski during a st op in 2009 or 2010. Officer Stablewski was
familiar with Price based on information obt ained from other officers. Price had been a member of the 18th Street Gang for over 15 years and went by the moniker “Demon.” He had prominent gang-related tattoos on hi s head, neck, chest, abdomen, and forearm,
and had admitted to other officers that he wa s a member of the 18th Street Gang. In photographs presented at trial, both Machuca and Price had 18th St reet Gang tattoos on their backs that were in the process of bein g completed, which Officer Stablewski opined
showed their active memb ership in the gang. 3

3 Three other police officers testified about their prior contacts with Machuca or Price. Detective Marla Kiley stated that, wh ile working as a gang officer in June 2005, she had contact with Price at a jail facility, and she knew both Price and Machuca to be members of the 18th Street Gang. Officer He ctor Marquez testified that, in August 2009,8 When presented with a hypothetical que stion based on the facts of the case, Officer Stablewski opined that the shooting wa s committed for the be nefit of a criminal street gang, and with the specific intent to pr omote, further, or assist in criminal conduct by gang members. Officer Stablewski testif ied that the shooting would benefit the gang by allowing it to protect its claimed territory while instilling fear an d intimidation within the community. The crime also would bene fit the perpetrators by enhancing their reputation in the gang and earning the respect of their fellow gang members. Officer Stablewski noted that the shooting occurred in broad daylight in gang territory, and after the first shots were fired, the perpetrators continued pursuing the victim in their car and
then fired a second round of shots at him. On cross-examination, Offi cer Stablewski was presen ted with an alternative hypothetical in which both the shooter and th e victim were young Hispanic men in dark clothing, but their membership in a gang was unknown and there were no gang signs, colors, or names used during the shooting. Offi cer Stablewski testified that if neither the shooter nor the victim was a known gang member and there were no other indicia of gang involvement, he could not conclude that the shooting was for the benefit of a gang. On the other hand, if the shooter was a known gang member and the crime occurred in gang territory, then the shooting would have been for the benefit of the gang even if the victim’s gang membership was unknown. While acknowledging that not every crime committed by a gang member was intended to benefit his or her gang, Officer Stablewski explained that he based his opinion that the shooting in the prosecution’s hypothetical was gang-related on the totality of circumstances presented.

he observed Price and another known 18th St reet Gang member in a gray Ford Focus in the gang’s territory. Officer Timothy Esteve z recounted that, based on his experience as a gang officer, he was familiar with Machuc a’s residence, which was a place where gang members were known to congregate.9 III. The Verdict and Sentencing The jury found both Machuca and Price guilty of attempte d willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a )), and found Machuca guilty of possession of a firearm by a felon (§ 12021, subd. (a)). As to the attempted murd er count, the jury made true findings on the firearm enhancemen t allegations (§ 12022.53, subds. (c), (e)), and as to both counts, the jury made true findings on the gang enhancement allegations (§ 186.22, subd. (b)). In a bi furcated proceeding, Price adm itted to one prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Price was sentenced to state prison for an aggregate term of 30 years to life. Machuca was sentenced to state prison for an indeterminat e term of 15 years to life and a determinate term of 23 years and four months. Both Mac huca and Price thereafter filed timely notices of appeal.

DISCUSSION
I. Sufficiency of the Evidence Supp orting the Gang Enhancements On appeal, Price and Machuca join in ch allenging the sufficiency of the evidence supporting the jury’s true findi ngs on the gang enhancements a lleged as to each count. They specifically contend that the prosecutio n failed to meet its burden of proving that the 18th Street Gang was a criminal street gang within the meaning of section 186.22, subdivision (b) because the testimony of the prosecutio n’s gang expert was insufficient to establish the primary activitie s element of the statute. We conclude that the jury’s gang enhancement findings were su pported by substantial evidence.

A. Relevant Law
The California Street Terrorism Enforcem ent and Prevention Act was enacted by the Legislature with the express purpose “to se ek the eradication of criminal activity by street gangs.” (§ 186.21.) One component of the statute is a sentence enhancement provision for felonies 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).) A “criminal street gang”10 is defined as “any ongoing organization, associ ation, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one
or more of the criminal acts enumerated in [§ 186.22, subd. (e)], having a common name or common identifying sign or symbol, and wh ose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) To prove a gang is a “crimi nal street gang,” the prosecution must establish that the gang has as one of its “primary activities” the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and has engaged in a “pattern of criminal gang activity” by committing two or more such “predicate offe nses.” (§ 186.22, subds. (e), (f); see also People v. Gardeley (1996) 14 Cal.4th 605, 617 ( Gardeley ).) “The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes comm itted by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s prim ary activities. [Citations.]” ( People v. Duran (2002) 97 Cal.App.4th 1448, 1465; see also Gardeley , supra , at pp. 619-620 [expert testimony “provided much of the evidence necessary to establish that the [defendant’s gang] met the [gang statute’s] definition of a “criminal street gang’”].) A ju ry’s true finding on a gang enhancement is generally reviewed on appeal for substantial evidence. ( People v.
Albillar (2010) 51 Cal.4t h 47, 59-60.)

B. The Gang Enhancements Were Suppor ted by Substantial Evidence At the trial of Machuca and Price, the pr osecution offered the expert testimony of Officer Stablewski to prove the primary activities element of the gang enhancement allegations. The prosecutor initially asked Of ficer Stablewski what “kind of crimes” were committed by members of the 18th Street Gang, to which he re sponded: “Murder, attempt[ed] murder, robbery, assault, other fe lony crimes. They’re not picky about what they do. If it’s illegal, they have . . . probably done it onc e.” Later in the testimony, the prosecutor and Officer Stablewski e ngaged in the following exchange:11 [Prosecutor]: In your opinion, have members of 18th Street individually or collectively engaged in a pattern of criminal gang activity? [Officer Stablewski]: Yes. [Prosecutor]: And in your opinion, what are those primary activities? [Officer Stablewski]: Primary activity of a gang member, again, is the commission of crimes, murder, attempt[ed] murder, robbery, assault, and other felony crimes. [Prosecutor]: And y ou’re specifically refe rring to 18th Street? [Officer Stablewski]: Yes. [Prosecutor]: What are yo u basing that opinion on? [Officer Stablewski]: My personal duties as a police officer and handling the gang for four years. Appellants argue the evidence was insuffici ent to establish the primary activities of the 18th Street Gang because Officer Stablewski did not de scribe any specific offenses that 18th Street gang members c onsistently and repeatedly co mmitted, but rather testified in conclusory terms that any gang membe r’s primary activity was the commission of crimes. In making this argument, however, Appellants are focusing on an isolated and incomplete portion of Officer Stablewski ’s testimony. The question posed by the prosecutor specifically asked about the prim ary activities of the 18 th Street Gang. Although Officer Stablewski initially respon ded that the “primary activity of a gang
member . . . is the commission of crimes,” he then immedi ately identified those crimes as including “murder, attempt[ed] murder, robbe ry, [and] assault.” In response to the prosecutor’s next question, Officer Stablewski further clarified that his testimony about the primary activities was “specifically referri ng” to the 18th Street Gang, and not simply to any gang member. He al so explained that his opini on about the gang’s primary activities was based on his years of experien ce as a gang officer dealing with the 18th Street Gang. As this Court observed in People v. Margarejo (2008) 162 Cal.App.4th 102, 107, “[o]rdinary human communication of ten is flowing and contextual. Jurors know this. Repetitive and stilted responses make up one kind of dire ct examination, but not the only kind.” When Officer Stablewski’s testimony is considered as a whole, it is12 sufficient to establish that members of the 18 th Street Gang consistently and repeatedly
committed one or more of the crimes enumerated in section 186.22, subdivision (e). Appellants also assert that Officer Stab lewski’s testimony lacked an adequate
foundation because he did not connect his knowledge as a gang enforcement officer to the primary activities of the 18th Street Gang. Appellants note that Officer Stablewski did not identify any specific instances of th e gang’s primary activities, nor did he describe when, where, or how he obtained the information about those particular crimes. Contrary to Appellants’ claim, however, th e foundation for Officer Stablewski’s opinion on the 18th Street Gang’s primary activities was well-established. As described by Officer Stablewski, he had been a sworn police officer for eight years and a gang enforcement officer for four years. His pr imary job duty as a gang enforcement officer was to monitor and suppress criminal activ ity by the 18th Street Gang. His work experience included numerous custodial and non-custodial interviews with gang members, probation and parole compliance ch ecks of residences occupied by gang members, and investiga tions of gang-related cr imes. He also gathered gang intelligence on a daily basis in the field through his pers onal contacts with gang members, many of whom spoke to Officer Stablewski about their gang’s culture, rivalrie s, and activities.
Officer Stablewski thus testified to havi ng extensive training and experience in gang crime and culture, there by demonstrating the special knowledge, skill, experience and training sufficient to qualify him as an expert. ( People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [gang expert’s “eight years de aling with the gang, including investigations and personal conversations with members, and reviews of reports
suffices to establish the foundation for his testimony” about the gang’s primary activities]; People v. Duran , supra , 97 Cal.App.4th at p. 1465 [gang expert's “personal experience in the field gathering gang in telligence, contacting gang members, and investigating gang-related crimes” provided adequate foundation for his testimony about the gang’s primary activities].) The mere fact that Officer Stablewski failed to provide a specific example of a murder, robbery, or assault committed by a particular 18th Street gang member in describing the gang’s pr imary activities did not render his testimony13 conclusory or beyond the scope of his expe rtise. “‘“‘Where a witness has disclosed sufficient knowledge of the subject to entitle hi s opinion to go to th e jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.’” [Citati on.]’ [Citation.]” ( People v. Eubanks (2011) 53 Cal.4th 110, 140.) Under these circumstances, Appellants’ reliance on In re Alexander L. (2007) 149 Cal.App.4th 605, is misplaced. In that case, the Court of Appeal reversed a true finding on a gang enhancement on the grou nd that the gang expert’s testimony was insufficient to establish the primary activities element. Wh en asked about the primary activities of the defendant’s gang, the expert testified, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I kno w they’ve been involved in mu rders. [¶] I know they’ve been involved w ith auto thefts, au to/vehicle burglaries, felony graffiti, narcotic violations.’” ( Id . at p. 611.) However, the expert did not explain the basis for his knowledge and conceded on cross-examination that the vast majority of crimes involving the gang were graffiti-related. ( Id . at pp. 611-612.) As this Court explained
in People v. Margarejo , supra , 162 Cal.App.4th at p. 107- 108, the expert testimony in
Alexander L. was insufficient to support a gang e nhancement finding because the witness did not identify the gang’s prim ary activities, equivocated on direct examination, and
contradicted himself on cross-examination. Officer Stablewski’s testimony, in contrast, did not suffer from these deficiencies, and when considered as a whole, was sufficient to prove the primary activities element of the gang enhancement allegations . The jury’s true findings on the gang enhancements were th erefore supported by substantial evidence.

II. Admission of Gang Expert Testimony Price and Machuca also argue that the tria l court violated their constitutional right to due process by admitting improper expert testimony that usurped the function of the jury. In particular, they asse rt that the trial court erred in allowing Officer Stablewski to testify on the ultimate issue of Appellants’ subjective intent in committing the charged crimes. This argument, however, is not supported by the record.14 A. Relevant Law Gang expert testimony may properly be admitted to prove motive and intent. ( People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549-1551; People v. Valdez (1997) 58 Cal. App.4th 494, 507- 509.) Indeed, expert testimony repeatedly has been deemed admissible to prove the motivation for a particular crime and whet her the crime was committed to benefit, promote, or assist a gang. ( People v. Garcia , supra , at p. 1513; People v. Gonzalez , supra , 126 at p. 1550; People v. Valdez , supra , at p. 509.) Although a gang expert may not offer an opinion on a specifi c individual’s subjective know ledge or intent, the culture and habits of criminal street gangs are a ppropriate subjects for expert testimony and therefore admissible. ( People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 ( Gonzalez ); Gardeley , supra , 14 Cal.4th at pp. 617-618.) In addition, a gang expert generally is allowed to provide opinion te stimony on the basis of facts presented in hypothetical questions that ask the expert to assume their truth. ( People v. Vang (2011) 52 Cal.4th 1038, 1045 ( Vang ); Gonzalez , supra , at pp. 946-947; Gardeley , supra , at pp. 617-618.) “‘Testimony in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate i ssue to be decided by the trier of fact.’ [Citations.]” ( Vang , supra , at p. 1048.)
In Vang , the California Supreme Court reaffirm ed its prior holdings that a gang expert may properly testify that a particular crime was committed for the benefit of a gang even though such testim ony embraces an ultimate issue to be decided by the jury. ( Vang , supra , 52 Cal.4th at p. 1048.) As the Supreme Court explained, while a gang expert may not testify whether the defenda nt committed a particular crime for gang purposes, the expert “properly could . . . express an opinion, based on hypothetical questions that tracked the evid ence, whether the [crime], if the jury found it in fact occurred, would have been for a gang purpose. ‘Expert opinion that particular criminal conduct benefited a gang’ is not only permis sible but can be sufficient to support the Penal Code section 186.22, subdivision (b )(1), gang enhancement. [Citation.]” ( Ibid .) The Supreme Court acknowledged that the expe rt’s opinion, if found to be credible,15 could “cause the jury to find the [crime] was gang relate d,” but reasoned that “‘this circumstance makes the testimony pr obative, not inadmissible.’” ( Id . at pp. 1048-1049.) 4

B. The Gang Expert Testim ony Was Properly Admitted Over Appellants’ objection at trial, the prosecutor posed the following question
to Officer Stablewski: “Assu me that two 18th Street gang members are in 18th Street Gang territory. And this is back on May 25th, 2011. And one of the 18th Street Gang
members is the driver of a car. And the other 18th Street Gang member is a passenger, the front passenger in the same car. There’s no one else in that car being just the two of
them. Assume it’s around 10 until 3:00 in the afternoon. Furthe r assume that the defendant who’s driving

― or, I’m sorry, the individual, 18th Street member who’s driving the car, pulls up to a co rner in the 18th Street Gang territory. He pulls up, he stops the car, and the passenger gets out, opens the door and pulls out a nine-millimeter handgun. And then he fires th at handgun six times at a male Hispanic who’s on a bike. That male Hispanic takes off. The shooter gets back in the same car and shuts the door. That car then takes off, and it follows the male Hispanic who is on the bike. . . . I want you to assume further that the same car [tha t] is then being driv en by the same person stops and the same shooter gets out, pulls out a gun, and fires six more times at the same male Hispanic. The shooter then gets back inside of the same car and the same driver drives away. Do you have an opinion as to whether or not that crime was committed at

4 In Vang , the Supreme Court disapproved of the case primarily relied on by Appellants

― People v. Killebrew (2002) 103 Cal.4th 644 ( Killebrew )

― to the extent that Killebrew could be read “as barring, or even limiti ng, the use of hypothetical questions.” ( Vang , supra , 52 Cal.4th at p. 1047, fn. 3.) As the Supreme Court explained, Killebrew “overlooked the critical difference between an ex pert’s expressing an opinion in response to a hypothetical question and the expert’s expressing an opinion about the defendants themselves. Killebrew stated that the expert in that ca se ‘simply informed the jury of his belief of the suspects’ knowledg e and intent on the night in question, issues properly reserved to the trier of fact .’ [Citation.] But to the ex tent the testimony responds to hypothetical questions, as in th is case (and, it appears, in Killebrew itself), such testimony does no such thing.” ( Id . at p. 1049.)16 the benefit of, at the direction of, or in asso ciation with a criminal street gang with the specific intent to promote, or further, or a ssist criminal conduct by gang members?” In response to the prosecutor’s question, Officer Stablewski testified as follows:
“I would believe that that situation would benefit the gang because of not knowing the day of the week, but I believe it was a weekday, and using the time of day, that would definitely cover the fear, intim idation part. That’s when tw o people in a car are driving around at 3:00 in the afternoon, and they’re going to approach a male Hispanic and attempt to shoot at him, get back in the car and continue to shooting, that to me it definitely puts both people wanting to be th ere. Nobody would c ontinue driving and, hey, let’s try and get him again, if that driv er of the car and that shooter inside the car, they don’t want to be there. That goes back to protecting the territory, it happened within a gang area, the time of day, and pretty much the no fear factor to shoot somebody at 3:00 in the afternoon, right before ru sh hour traffic, it definitely would be in benefit of the gang due to the fear and intimidation factor within the community. And then what also you have, is you have respect of your peers. You’re going to show your loyalty to the gang and you’re going to get new respect th at you never had because they would talk about it like I’m talking about it, that, a, it’s crazy to shoot someone at 3:00 in the afternoon, they’re going to look up to them, like, wow, these guys are pretty down for our cause here. They’re definitely defending, doing their job, and it’s going to be an example to newer members that this happened and this happened, and these guys are setting the bar pretty high for younger members. So I go to the fear and intimidation, the respect and the loyalty, and protecting territory, and th is person possibly coul d have been a rival
member.” Appellants contend that the trial court e rred in admitting this testimony. The record reflects, however, that the prosecutor asked Officer Stablewski a permissible factbased hypothetical question that was designed to elicit his expert opinion as to whether
the crimes at issue were comm itted for the benefit of the 18t h Street Gang, and with the specific intent to promote, furt her, or assist in criminal condu ct of the gang. In presenting this hypothetical scenario, the prosecutor di d not pose any questions about the particular17 state of mind of Machuca or Price, or whet her either of them had any specific knowledge or intent. In response to th e prosecutor’s inquiry, Officer St ablewski testified that, based on the facts posed in the hypothetical, it was his opinion that the crime described would
have been committed for the be nefit of the gang a nd with the specific intent to promote criminal gang conduct. Officer Stablewski did not express an opinion as to whether Machuca or Price actually commi tted the crime, or took any action for the benefit of their gang. Rather, Officer Stablewski op ined that a shooting committed in the manner described by the prosecutor’s hypothetical would have been done for gang purposes. Appellants claim that the prosecutor’s h ypothetical question wa s designed to elicit an improper opinion on their subjective intent because it included a specific reference to the date of the shooting and the name of thei r gang. However, as the Supreme Court held
in Vang , “[i]t is required, not prohibited, that hypothetical questions be based on the evidence,” and “[t]he questioner is not requir ed to disguise the f act the questions are based on that evidence.” ( Vang , supra , 52 Cal.4th at p. 1041.) Thus, hypothetical questions are not improper because “they trac ked the evidence in an manner that was only ‘thinly disguised,’” and “it is not a legitimate objec tion that the questioner failed to disguise the fact the question wa s based on the evidence.” ( Id . at pp. 1045, 10 51.) In this case, there is no dispute that the hypothetical question pos ed by the prosecution which Officer Stablewski was permitted to answer was rooted in the evidence presented at trial. 5 Appellants also argue that the prosecu tor’s hypothetical question was improper because the prosecutor “asked whether appellant[s ] had the specific intent to benefit the gang and Officer Stablewski te stified they did.” This asse rtion is not supported by the

5 Appellants point out that, after Officer St ablewski responded to the hypothetical question by opining that the s hooting would have been comm itted for the benefit of the gang, the prosecutor asked how it would affect his opinion if he assumed that the victim was a rival gang member. While Appellants are correct that ther e was no evidence that the victim was a gang member, they erroneousl y state that the trial court overruled their objection to this follow-up ques tion. The record reflects th e trial court actually sustained the objection and Officer Stablewski never answered the question.18 record. It is true that the prosecutor made on e indirect reference to Price when she stated: “Further, assume that th e defendant who’s driving

― or, I’m sorry, the individual, 18th Street member who’s driving the car, pulls up to a corner in 18th St reet Gang territory.” However, the prosecutor immediately apologiz ed for the misstatement and made no further reference to Price or Machuca in posi ng the hypothetical. Officer Stablewski also did not refer to Price or Machuca in resp onding to the question. Therefore, when considered in its entirety, this line of inqui ry does not reflect an attempt by either the prosecutor to elicit, or by Officer Stablews ki to provide, an op inion on Appellants’ subjective knowledge or intent. Nor was Of ficer Stablewski’s testimony on the subject tantamount to expressing an opinion as to Ap pellants’ guilt. Under these circumstances,
Officer Stablewski did not inva de the province of the jury in proffering his opinion, and
the trial court did not err in ad mitting his expert testimony.

III. Failure to Instruct on Attemp ted Voluntary Manslaughter
Price asserts that the trial court erred in failing to instruct the jury sua sponte on attempted voluntary manslaughter as a lesser included offense of attempted murder. He argues that an attempted voluntary manslaugh ter instruction was warranted in this case because there was evidence that the shooting was committed in a heat of passion or in imperfect self-defense. This claim fails, however, because the evid ence was insufficient to support a voluntary manslaughter instruction under either theory.

A. Relevant Law “[I]t is the [trial] ‘court’s duty to instru ct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committe d.’ [Citation.]” ( People v. Gutierrez (2009) 45 Cal.4th 789, 826.) “C onversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction’ [Citation.]” ( People v. Cole (2004) 33 Cal.4th 1158, 1215.) Substantial evidence “is not merely ‘ any evidence ... no matter how weak’ [citation],
but rather ‘“evidence from wh ich a jury composed of reasonable [persons] could ...19 conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” ( People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Burney (2009) 47 Cal.4th 203, 250 [“‘[t]o justify a lesser included offe nse instruction, the ev idence supporting the
instruction must be substantial — that is, it must be evidence from which a jury . . . could
conclude that the facts underl ying the particular instruction exist’”].) “On appeal, we review independently whether the trial cour t erred in failing to instruct on a lesser included offense. [Citation.]” ( People v. Booker (2011) 51 Cal.4th 141, 181.) Voluntary manslaughter is “the unlawful killing of a human being without malice . . . upon a sudden quarrel or h eat of passion.” (§ 192, subd. (a).) “Heat of passion arises if, ‘“at the time of the killing, the reason of the accused was obs cured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliber ation and reflection, and from such passion rather than from judgmen t.”’ [Citation.]” ( People v. Beltran (2013) 56 Cal.4th 935, 942.) “‘The heat of passion requirement fo r manslaughter has both an objective and a subjective component. [Citation.] The defe ndant must actually, subjectively, kill under the heat of passion,’” and the “‘heat of passion must be due to “sufficient provocation.”’” ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) Voluntary manslaughter, based on imperfect self-defen se, is committed when the defe ndant kills in “‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury.’” ( People v. Rogers (2006) 39 Cal.4th 826, 883.)

B. The Evidence Did Not Support a Vo luntary Manslaughter Instruction
Price contends that there was sufficient evidence to support an instruction on attempted voluntary manslaughter because on e of the eyewitnesses to the crime reported that the victim was also firing a weapon. The record reflects that the prosecution introduced the tape recordings and transcripts of five 911 ca lls made during the incident. In one of the three anonymous calls, the calle r told the 911 operator that she saw a man running down the street, chasing another man on bicycle, and shooting a gun at him. She described the shooter as a heavyset Hispanic man in his twenties wearing a black shirt20 and blue jeans. She stated that the shooter “was running” and “it seemed like he was going to shoot a guy on a bike.” When asked by the 911 operator to describe the man on the bike, the caller stated as follows: “The guy on the bike? He looked like he could have been Hispanic too. I – his back was to me, but he was shooting, and he had on a
black shirt too.”
Price claims that this statement from the anonymous caller reasonably could have supported a finding by the jury that the victim was also armed and shooting at Machuca. We disagree. The transcript of the 911 call, read in its entirety, describes a single
shooter

― the man who was on foot chasing th e man on the bicycle. The caller repeatedly told the 911 operator that the man on f oot was the person committing the shooting. She initially described that man as “going down the stre et chasing somebody, shooting ‘em,” and then clarified that the sh ooter “was running” and “it seemed like he was going to shoot a guy on a bike.” She la ter reiterated that the man who had the gun was “running down the street” and “trying to shoot” the ma n on the bike. Although the caller made one statement that “he was shooting” as she gave a description of the man on the bicycle, she also said th at “his back was to [her].” She did not make any other
reference in the call to the victim carrying or shooting a gun. In addition, none of the other witnesses who saw the man on the bicycle indicated that he was armed with a gun or shooting at the man who was chasing him. Instead, the witnesses similarly reported that the man be ing chased abandoned his bicycle after the
first round of shots was fired and ran from th e shooter. The video surveillance footage also did not show the victim holding or firi ng a weapon. It me rely showed him on a bicycle heading in one direction as he look ed back and forth over his shoulder, suddenly reversing direction as he conti nued to look to the rear, and then dropping his bicycle and fleeing on foot. While Price argues that the vi deo footage supports an inference that the shooting happened suddenly, it does nothing to demonstrate that the victim provoked Machuca into firing his weapon or caused Machuc a to fear for his life. Furthermore, all of the casings and bullet fragments that were recovered from the scene of the shooting were matched to the gun found at Machuca’s re sidence. None of the evidence pointed to21 the presence of a second firearm at the scene, or to any act of provocation or threat of violence by the victim. Because there was no substantial evidence to support a finding that Machuca fired his weapon in a heat of pa ssion or in self-defense , the trial court did not err in failing to give an attempte d voluntary manslaughter instruction.

IV. Sufficiency of the Evidence Supporting Price’s Attempted Murder Conviction Price also challenges the sufficiency of the evidence supportin g his conviction for attempted murder. He specifical ly claims that the evidence was insuffi cient to support a finding that he aided and abetted the shooting by serving as the driver of the getaway car.
We conclude that there was substantial evidence to support Price’s conviction.

A. Relevant Law
To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact coul d have found the essential elements of the crime or special circumstan ces beyond a reasonable doubt. [Citation.]
The record must disclose substa ntial evidence to suppo rt the verdict - i.e., evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecuti on and presume in support of the judgment the existence of ev ery fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judg ment, for it is the excl usive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determina tion depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for s ubstantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is ther e sufficient substantial eviden ce to support”’ the jury’s verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Penal Code section 31, which governs aider and abettor liability, provides in relevant part, ‘[a]ll persons concerned in th e commission of a crime, whether it be felony22 or misdemeanor, and whether th ey directly commit the act c onstituting the offense, or aid and abet in its commission ... are principals in any crime so committed.’ An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offens e.’ [Citation.]” ( People v. Chiu (2014) 59 Cal.4t h 155, 161, fn. omitted.) Accordingly, “‘[a] pe rson aids and abets the commiss ion of a crime when he or she, (i) with knowledge of the unlawful purpos e of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or en couraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commi ssion of the crime.’ [Citation.]” ( People v. Delgado (2013) 56 Cal.4th 480, 486, fn. omitted.)

B. Price’s Conviction Was Suppor ted by Substantial Evidence Price argues that his conviction for attempte d murder must be reversed because the evidence merely established that his car wa s used during the commission of the crime, but failed to prove that he was the driving the car or was otherwise present at the scene of the shooting. In support of th is claim, Price asserts that neither of the eyewitnesses who
testified at trial identified him as the driv er of the getaway car, and the only other evidence linking him to the sc ene of the shooting came from law enforcement officers, whose testimony was unreliable and inconsistent in certain respects. It is wellestablished, however, that conflicts and inco nsistencies in testimony, even those within the testimony of the same witness, are to be resolved by the trier of fact. ( People v. Young (2005) 34 Cal.4th 1149, 1181 [“[r]esolutio n of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact”].) Moreover, “unless the testimony is physically impossible or inhe rently improbable, testimony of a single
witness is sufficient to support a conviction.” ( Ibid .; see also People v. Richardson (2008) 43 Cal.4th 959, 1030-10 31 [“testimony of a single witness is sufficient for the proof of any fact”].) In this case, there was ample evidence to support a finding that
Price aided and abetted Machuca in the shooting by driving the getaway car.23 First, the prosecution presented substan tial evidence linking Price and Machuca to the area of the crime shortly before the shoot ing occurred. Detec tive Jacinto, who had prior contacts with both men, observed them together in Price’s Fo rd Focus less than 15 minutes before the shooting began and about tw o miles from where the crime took place. At that time, Price was driving the car and Machuca was the passenger. While Price challenges Detective Jacinto’s identification of him as lacking in credibility, he has not demonstrated that such testimony was physica lly impossible or inherently improbable. Second, there was strong circumstantial ev idence showing that Price was present at the scene during the commission of the crim e. The two eyewitnesses who testified at trial, White and Dempf, each recounted that a gray Ford Focus was used as the getaway
car after the first set of shots was fired. Wh ile neither witness could identify Price as the driver of the car, there was testimony that th ey similarly described the driver as a Black
male in their interviews with the police shortly after the shooting. Dempf also wrote down the license plate number of the car as the shooting was in progress, and it was
almost an exact match to the license plate number of Price’s Ford Focus. Based on this evidence, the jury reasonabl y could have inferred that Price a nd Machuca were still together in Price’s car 10 minutes after Det ective Jacinto first observed them, and that Price was acting as the getaway driver when Machuca attempted to shoot the victim. Third, the prosecution offered substantia l evidence connecting Price and Machuca to the shooting after it occurred. Machuca’s house was le ss than 100 feet from where the second set of shots was fired. When the po lice arrived at the house a few minutes after the shooting was first reported, Detective Jaci nto observed Price’s Fo rd Focus parked in the driveway, still warm to the touch, an d a person resembling Price fleeing from the residence. During a search of the residence that same day, the police recovered the gun that was used in the shooting. Although Dete ctive Jacinto could not identify Price as the person fleeing, there was solid circumstantial evidence from which the jury could infer that Price parked his car at Machuca’s home immediately after the shooting and fled on foot when the police arrived at the home.24 V. Sentencing Errors as to Machuca On appeal, Machuca argues that his abstra cts of judgment must be modified to correct two sentencing errors. First, he c ontends that the sentence imposed on count two (possession of a firearm by a felon) must be deemed concurrent to the sentence imposed on count one (attempted murder) because the trial court’s oral pronouncement failed to
indicate whether the term on count two was to be concurrent or consecutive. Second, he claims that the abstracts of ju dgment must be corrected to re flect that the two-year gang enhancement imposed by the trial court applied to count two rather th an count one. We agree the trial court’s written se ntencing orders must be modified to correct these errors.

A. Relevant Background Machuca was convicted as charged of two co unts. As to count one, the jury found him guilty of attempted willful , deliberate, and premeditated murder (§§ 664, 187, subd. (a)), with true findings on both a firearm enhancement allegation (§ 12022.53, subds. (c), (e)) and a gang enha ncement allegation (§ 186.22, subd. (b)). As to count two, the jury found him guilty of possession of a firearm by a felon (§ 12021, subd. (a)), with a true finding on a gang enhancement alle gation (§ 186.22, subd. (b)). At the May 21, 2013 sentencing hearing, the trial court orally pronounced the
sentence for Machuca as follows : “With respect to Mr. Machuca, probation is denied in this matter. Mr. Machuca is to be imprisoned in the state prison for a period of life. As to count 1, that term will be a minimum of 15 years. As to count 2, the court imposes a determinate sentence of 23 years and 4 months. 6 I am imposing the low term to give Mr. Machuca some inducement to program well in state prison so that he may once again enjoy his liberty if he makes prudent choices. He is a young man, I don’t believe the die is necessarily cast permanently .” The trial court did not state whether the sentence on

6 The sentence pronounced by the trial cour t on count two consisted of the low term of 16 months on the underlying count, two years on the gang enhancement, and 20 years on the firearm enhancement. However, the 20-year term on the firearm enhancement should have been im posed on count one.25 count two was to be served co ncurrently or consecutively. The trial court also did not set forth any reasons for impos ing a consecutive sentence. In the clerk’s May 21, 2013 minute orde r for the sentencing hearing, Machuca’s sentence was stated differently. As to count one, the sentence was 15 years to life with an additional 20-year term on the firearm en hancement and an additional two-year term on the gang enhancement. 7 As to count two, the sentence was the low term of 16 months.
The minute order indicated that the senten ce on count two was to “run consecutive” to
the sentence on count one. On May 23, 2013, two abstracts of judgme nt were filed for Machuca. The first abstract of judgment stated that, as to co unt one, the sentence was the indeterminate term of 15 years to life, plus an additiona l determinate term of 20 years on the firearm enhancement and two years on the gang enhancem ent. The second abstract of judgment stated that, as to coun t two, the sentence was the low term of 16 months. Neither abstract of judgment indicated whether the sentence on count two was consecutive or concurrent.

B. The Count Two Sentence Is Deemed Concurrent by Op eration of Law Machuca asserts that the abstracts of judg ment must be modified to reflect that
the sentence on count two is to be served concurrently w ith the sentence on count one because the trial court failed to orally pron ounce whether the term imposed on count two
would be concurrent or consec utive, or to state any reasons on the record for imposing a consecutive term. The Attorney General argues that the record estab lishes that the trial court intended to impose a c onsecutive term on count two and that any error in failing to
state the reasons for a consecutive sentence was harmless. Section 669 provides, in rele vant part: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, . . . the second or other subsequent judgment upon which sentence is ordered to be

7 Although the 20-year firearm enhancement was proper ly applied to count one in the clerk’s minute order, the two-year gang enhancement was not.26 executed shall direct whether the terms of im prisonment or any of them to which he or she is sentenced shall run concurrently or co nsecutively. . . . [¶] . . . Upon the failure of
the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.” (§ 666, subds. (a), (b).) Section 669 thus imposes an affirmative duty
on the trial court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutiv ely. If the trial court fails to determine
whether a sentence is concurrent or consecutiv e, it is deemed concurrent by operation of law. ( People v. Downey (2000) 82 Cal.App.4th 899, 913-915; People v. Caudillo (1980) 101 Cal.App.3d 122, 126-127.) Additionally, the trial court must state the reasons for its sentencing choices, including the impos ition of a consecutive sentence. ( People v.
Sandoval (2007) 41 Cal.4th 825, 850; Cal. Rules of Court, rule 4.406, subd. (b)(5).) In this case, the record reflects that the trial court did not indi cate at the sentencing hearing whether the term imposed on count two was to be served concurrently or consecutively. The court also did not stat e on the record any reasons for selecting a consecutive term. Instead, the court simply stated that it was imposing a “minimum [sentence] of 15 years” on count one, and “a determinate sentence of 23 years and 4
months” on count two. While the abstracts of judgment were also silent on the matter, the clerk’s minute order affirmatively statedthat the sentence on count two was to run consecutively to the sentence on count one. However, “[a]ny discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sent ence prevails in cases where it deviates from that recorded in the minutes.” ( People v. Price (2004) 120 Cal.App.4th 224, 242; see People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“ record of the or al pronouncement
of the court controls over the clerk’s minute order”].) Because the trial court’s oral pronouncement of Machuca’s sentence does not demonstrate an intent to impose a consecutive term, the sentence on count two must be deemed concurrent under section 669. ( People v. Downey , supra , 82 Cal.App.4th at p. 915 [where trial court failed to designate whether terms were consecutive or concurrent, they were deemed concurrent27 under section 669]; People v. Caudillo , supra , 101 Cal.App.3d 122 at pp. 126-127 [where oral pronouncement was silent on whethe r sentence was consecutive or concurrent, abstract of judgment provision for consecu tive term did not satisfy section 669].) The Attorney General acknowl edges that the trial court failed to give any reasons for imposing a consecutive sentence, but argues that the court must ha ve intended for the term on count two to run consecutively to th e term on count one based on its statements on the record. The Attorney Ge neral notes that the trial c ourt decided to impose the low term on count two to incentivize Machuca to pe rform well in prison, and claims that it would have been pointless for th e court to discuss its reasons for selecting a low term if it
intended for count two to be se rved concurrently. However, the trial court’s statements
about the low term on count two were in dire ct response to defense counsel’s request for leniency as to that count given Machuca’s cooperation with the police in recovering the firearm. On this record, we cannot concl ude that the trial c ourt intended to impose consecutive terms. Accordingly, because the trial court failed to orally pronounce
whether the sentence on count two was to be concurrent or consecutive, it is deemed
concurrent under sec tion 669 and the minute order and ab stracts of judgment must be modified accordingly. ( People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [“[w]hen an abstract of judgment does not accurately re flect the trial judge’s oral pronouncement of sentence, [the appellate] court has the inherent power to correct such an error, either on [its] own motion or at the parties’ behest”].)

C. The Two-Year Gang Enhancement Must Be Applied to Count Two Machuca also contends, and the Attorney General concedes, that the abstracts of judgment must be modified to reflect that the two-year gang enhancement imposed by the trial court at the sentencing hearing applie d to count two rather than count one. We agree. Section 186.22, subdiv ision (b)(1)(A) provides for an additional term of two, three, or four years where the defendant is convicted of a felony committed for the benefit of a gang. Alternatively, if the de fendant is convicted of a felony punishable by life imprisonment, section 186.22, subdivisio n (b)(5) requires that he or she serve a28 minimum term of 15 years before being parole d. At the sentencing hearing, the trial court correctly applied a 15-year parole e ligibility gang enhancemen t to count one and a two-year gang enhancement to count two. However, both the minute order and abstracts of judgment erroneously indicated that the tw o-year gang enhancement applied to count one, and not to count two. The written sentenci ng orders must therefore be modified to strike the two-year gang enhancement from th e sentence imposed on count one and to
add that enhancement to the senten ce imposed on count two.

DISPOSITION As to Machuca, the trial court’s May 21, 2013 sentencing minute order is modified to strike the two-year gang enhancement fro m the sentence imposed on count one and to add that two-year gang enhancement to the sentence imposed on coun t two. The minute
order is further modified to reflect that the sentence imposed on count two is to be served concurrently with the sentence imposed on co unt one. The superior court is directed to prepare corrected abstracts of judgment re flecting these modifications and to forward them to the Department of Corrections and Rehabilitation. In all other respects, the judgments as to both Machuca and Price are affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.