1 Filed 11/12/13 P. v. Riggins CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, Plaintiff and Respondent,

v. JAMES LAMAR RIGGINS et al., Defendants and Appellants. C069494 (Super. Ct. No. 08F00290)

In a story that is becoming all too familiar, rival gang member s clashed over their perceived territory, words quickly escalated to gunfire, two young men are now dead, and a third was seriously wounded. Isidro Cedillo and Rigobert o Aguirre were killed, and Isidro’s twin brother, Victor Cedillo, was shot multiple tim es. The confr ontation began when the aggressor gang memb ers hurled verbal threats out side the Cedillos’ home. When the three young men came out of their home to confront the aggressors, one of the aggressors began shooting with a semiauto matic handgun, hitting all three of their perceived rivals, and killing two of them in front of their home. The gunman, James Lamar Riggins, was fou nd guilty of two counts of first degree murder with a multiple murder special circumstance, and one count of attempted murder.2 As to each count, the jury found true allegations that he personally a nd intentionally discharged a firearm causing great bodily injury or death, and that the crime was committed for the benefit of a criminal street gang. As to the attempted murder count, the jury also found true the allegation that he personally inflicted great bodily injury. The trial court sentenced Riggins to life in pris on without the po ssibility of parole plus 145 years to life in prison. The jury found the other two defenda nts, Christopher Anthony Hernandez and Orlando Gabino Camacho, not guilty of the two first degree murder charges, but guilty of the lesser offenses of voluntary manslaught er. The jury found Hernandez and Camacho not guilty of attempte d murder, but guilty of the lesse r offense of a ttempted voluntary manslaughter. The jury found the arming e nhancements untrue as to Hernandez and Camacho, but found true the allegations that the crimes were committed for the benefit of their gang. The trial court sentenced each of them to 30 years and 8 months in prison. Defendants argue the trial court committed various evidentiary, instructional, and sentencing errors, and erred in imposing certain fees. They also argue they should have had access to juror information for the purpose of developing a motion for new trial. We shall remand for correction of the sentencing errors, but otherwise affirm the judgment. FACTUAL AND PROCEDUR AL BACKGROUND The crimes at issue in this case were motivated by gang an imus. Aside from the fact that the victims and defendants associat ed with rival gangs, defendants blamed the victims for putting a fellow gang member behind bars. 1 That prior incident occurred in 2007. Twin brothers Victor and Isidro Cedi llo were standing outsid e a liquor store when

1 Police believed Victor Cedillo was asso ciated with the Sureño street gang, and observed that Isidro Cedillo wore typical Su reño attire. Isidro had not had any contact with law enforcement. Police had no prior contact with Rigobert o Aguirre, and had no indication he was a gang member.3 they saw Frank Camacho, a Varrio Diamond Sacra (VDS or Diamonds) gang member. Victor and Isidro knew Frank Camacho fro m high school. Frank Camacho called the brothers Scraps, which is a de rogatory term for Sureño gang members. Victor and Isidro called Frank Camacho names as well. The brot hers returned home, and shortly thereafter saw Frank Camacho in the front passenger seat of a car that was driving by, holding a gun and pointing it toward the Cedillos’ house. Victor picked up a rock and threw it at the passing vehicle. Frank Camacho fired two shots and the car sped away. Frank Camacho was convicted of this crime. In December 2007, Victor Cedillo heard rumors that Frank Camacho was going to get out of jail and come kill him. On January 11, 2008, Victor and Isidro we re living in a house on 73rd Street with their mother Carmen Rivas, her boyfriend Ad olfo Blancarte, Rigoberto Aguirre, Jonathan Ramirez, and others. They had recently move d to 73rd Street beca use the house they had been living in was being shot at in drive- by shootings. Their mother thought the 73rd Street house was in a calmer neighborhood. On the night of the murders, January 11, 2008, defendants James “Stomps” Riggins and Christopher “Fat Boy” Hernandez were driving from one party to another in Riggins’s Crown Victoria. Also in the car were Noemi Perez and Crystal Picasso. Riggins and Hernandez were VDS gang members. They drove down 73rd Street and saw three guys (the victims) outside a house. He rnandez said that the three should not be in his “hood” and yelled at them and threw up hi s index and middle fingers in the sign of the Diamonds. Riggins drove on to a nearby hous e where they picked up defendant Orlando “Silent” Camacho. Camacho was also a VDS gang member, and was the cousin of Frank Camacho. After Camacho got in the car, defendants talked about wanting to fight the three guys that were outside the house on 73rd Street. They called them “Scraps.” Hernandez said he wanted to go fight them. Camacho sa id he did not, but that he would have their backs. They drove back and parked on the corner of 73rd Street and 14th Avenue.4 According to the females in the car, there was no talk about weapons, about ambushing, about killing, or about hurting anyone. Howeve r, the men did indicate they were going to fight the three guys outside the house on 73rdStreet. Defendants got out of the car and walked down 73rd Street. Picasso and Perez stayed in the car. Aguirre had just come home from work and was walking up to the house when one of the three defendants, later determined to be Riggins, stopped and talked to him. However, Aguirre did not speak English. Af ter speaking to Aguirre, Riggins continued on down the street with his hands in his pockets. Aguirre went inside. Isidro and Victor Cedillo were inside th e house eating when Aguirre came inside. Everyone else in the house had gone to be d. The Cedillos heard people yelling outside the house when Aguirre came in. Aguirre told the Cedillo brothers in Spanish that he did not understand what the people were saying to him. Victor heard people on the lawn yelling out “scrap killer” and “14th Avenue,” and “Diamonds. ” He looked outside and saw two guys (Camacho and Hernandez) on his front lawn. Isidro Cedillo became angry and went outside, telling the intruders (Camacho and Hernandez), “Fuck your hood. I don’t car e where you guys cl aim.” Camacho and Hernandez started throwing up gang signs and shouting gang nonsense. Aguirre went outside also, and Victor Cedillo followed them as soon as he put on hi s shoes. Victor did not see his brother or Aguirre pi ck up anything before they le ft the house, but he grabbed a folding chair to use to defe nd himself. Victor saw th e two men who had been yelling run to a car, which he recognized as the one that drove by earlier, the occupants of which had thrown out gang signs. One of them reac hed into the back seat. Victor panicked because he did not know whatthe person was reaching for, a nd screamed at the other two to go back to the house. They all turned around and ran back toward the house. Victor was still holding the chair. He did not see his brothe r or Aguirre throw anything at the other two men, or hit them with anything. As they ran toward their house, Victor saw a guy come out from behind a car and approach them from the opposite5 direction. The guy reached toward his wa ist and pulled out a gun. He immediately started shooting. The gunman sh ot both Isidro and Aguirre as they ran away. He shot at Isidro six or seven times before turning the gun on Aguirre. Victor ran and hid behind a car, but not before the gunman (Riggins) shot him in the hand, the leg, the thigh, the lower back and the buttocks, fo r a total of eight bullet wounds . Victor heard Riggins run back toward where his car was parked on 14th Avenue. Crystal Picasso, who was waiting in the front seat of Riggins’s car, testified that when Camacho and Hernandez ran back to the car she saw two or three men chasing them with chairs in their hands. Pica sso asked where Riggins was, and without answering, Camacho and Hernan dez turned around to go back. Then Picasso heard a lot of gunshots. She thought the shooter probably emptied the gun. She guessed there were 10 shots, and it sounded like it was from the same gun. All three guys then came running back. Riggins said, “I know I got one, I know I got one.” Hernan dez said, “You should have let me do it. I would’ve got all of them .” Then they laughed. Hernandez said he had “kept telling” Riggins to give the gun to him. A witness on 14th Ave nue, where Riggins’s car wa s parked, saw the three defendants running from 73rd Street. They ha d their hands in the ai r, appeared boastful, and shouted something ab out “stone killers.” Riggins drove away fast. They headed for West Sa cramento. At 12:15 a.m. a West Sacramento Police officer pulled Riggi ns over for speeding. Noemi Perez saw Riggins pass the gun to Camacho, who was in the back seat, and tell Camacho to run, but Camacho did not want to run. Because the o fficer was needed on another call, could not detect the odor of alcohol in the car, and did not see any signs of driver impairment, he let Riggins go at approximately 12:20 a.m. At approximately 12:30 a.m. he received a notification that the vehicle he had stopped was being sought in connection with a murder in Sacramento.6 After being stopped by the police, Riggin s drove the group to a house in West Sacramento, where a party was going on. Riggins took a shower. Noemi Perez saw Camacho and Hernandez passing th e gun around at the party. Stevie Ramirez testified that he was a former VDS gang member. Two days after the shooting, he told a detec tive investigating the case that Riggins told him that he (Riggins) had thrown his gun over the West Capitol Bridge. Ramirez told the detective that he did not want to talk because if he did, his life and his family’s lives would be in jeopardy. He told the detectiv e that he needed protection. On the stand, Ramirez claimed everything he told the detective was a lie. Several witnesses to the murders testif ied they heard multiple gunshots. Some thought the shots all came fro m one weapon, but others thou ght they heard two different weapons. A total of 16 shell casings were coll ected at the scene. They were found in a half-circle pattern. All casings contained the same marking -- 9mm Win Luger. Six expended bullets were recovere d, including one bullet frag ment. All of the bullets collected were the same color. Five of th e expended bullets were 9mm Luger jacketed soft-nosed bullets. The damaged bullet fragm ent could have been a 9mm Luger, but the fragment was too damaged to make a definite de termination. All of the cartridge casings came from the same gun -- a semiautomatic or fu lly automatic firearm. It was possible, though not definitively determ ined, that the firearm which fired all of the cartridge casings fired all the bullets as well. Only one chair, a metal folding chair, wa s found and collected from the scene. No guns were recovered from the scene, but a neighbor testified she saw a man take something from the vicinity of one of the victims. Isidro Cedillo was shot in the left thigh, right thigh, and right knee. The fatal gunshot was to his left back over the shoulder blade, which damaged his lungs and aorta, and exited his chest. Isidro was not facing his shooter when he was shot. Aguirre died of7 a single gunshot wound to his back that exited his front and damaged his pulmonary artery. Riggins testified at trial. He admittedto being a VDS gang member. He admitted he was angry at the Cedillo brothers for sending Frank Camacho to jail for shooting at their house, and for calling the police and setting Riggins up. He admitted that he agreed to go fight the Cedillos and that he had a gun with him, but claimed he did not intend to use it. His defense was that when the Ced illos and Aguirre noticed him, they started yelling aggressively, then one pul led out a gun and shot at him twice. He was scared for his life, so he pulled out his gun and started shooting. Hernandez also testified at trial. He ne ver saw anyone with a gun. When he heard the gunshots, he ducked down a nd ran back to the car. He ad mitted Riggins had said that he thought he got one, and that he respon ded Riggins sh ould have give n him the gun because he would have got themall, but that was only becaus e he did not want everyone to think he was a coward. He ha d not known anyone was going to shoot. DISCUSSION
I Exclusion of Perez’s Double Hearsay Statement Riggins and Hernandez argue their rights to present a defense, to confront the witnesses against them, and to due process we re violated when the trial court excluded the hearsay statements of Hernandez and Cam acho that the victims had thrown chairs at them. Camacho generally joins in the argument. A. Underlying Facts During cross-examination by Camacho’s defense counsel, Noemi Perez was asked about a statement she had made to a defense investigator. She was asked whether she told the investigator that wh en Camacho and Hernandez return ed to the car the first time, they said the other guys were throwing ch airs and had bats. She said she did not remember. Camacho’s defense counsel asked to approach.8 Later, during cross-examination by Hern andez’s counsel Perez was asked about the demeanor of Hernandez and Camacho when they first returned to the car. Counsel asked if they had appeared scar ed, to which Perez replied they had. Counsel then asked if they were excited or upset about what ha d happened. The trial court sustained the prosecutor’s objection that the question was leading. Then counsel asked Perez to describe the demeanor of Camacho and Herna ndez when they returned to the car. Perez replied that she did not remember. Counsel refreshed Perez’s memory of a prior statement she had made to the defense investigator. When asked the qu estion again, she indicated Camacho and Hernandez had appeared tired an d scared. Counsel asked if they had said anything, and she replied, “No.” Counsel then asked, “A t some point, did Christ opher or Orlando say to you that the other guys --[.]” The prosecutor objected on hearsay grounds, and the objection was sustained following an unreported discussion. B. Trial Court’s Ruling In a later discussion on the record, the trial court indi cated counsel for Hernandez had tried to use Perez’s earlier statement to investigators, that Camacho and Hernandez said the victims had thrown chairs at them and that th ey had bats, to impeach her statement that she could not no w remember them saying anything. The trial court stated: “There are two points of analysis. One was that because she doesn’t remember making that statement, it is hearsay inconsisten[cy] and therefore it comes in through the ru le on inconsistency. “But in this case the underlying statement itself is offered for the truth of the matter asserted and for that second leg they were offering excited utterance.” The trial court then noted that the evidence in support of the defense’s claim that the statement constituted an excited utteranc e was that the defendants were tired and scared when they retu rned to the car. The trial court agreed that Perez’s failure to remember on the stand was inconsistent with her earlier statement. However, as to the9 excited utterance, the court found that it coul d consider whether the declarants had a true suspension of their ab ility to filter their statements, or whether there was some motivation for the statement. The court concluded: “when I look at [the] quite candidly thin description of their excitement or fear when they entered the car, and also consider the motivation to provide a justification for subs equent conduct, it doesn ’t have the kind of suspension of filtering process such that it is appropriately an exception to the hearsay rule.” The request to admit the statement was renewed after some evidence was admitted that Victor Cedillo had been armed with a chair. Specifically, Victor testified he had taken a chair with him when he went outside and Crystal Picasso’s interview with police was admitted in which she stat ed “It looked like they had like a chair or bat or something like that.” During the renewe d request, it was asserted that Hernandez was the one who stated they had been chased with bats. The trial court confirmed its earlier ru ling, stating it had taken into account Hernandez’s gang involvement and prior involveme nt in a couple of confrontations when evaluating Hernandez’s state of mind when he made the statement. The court also considered Noemi Perez’s testimony that the th ree defendants went to the house to fight, and the evidence from which an inference could be made that Hernandez knew that Riggins had a gun. The court also noted th at Noemi Perez was as ked whether Hernandez made any statement while he was in a state of fright, and she answered, “no.” In confirming its earlier ruli ng, the trial court stated:
“This is a statement that woul d be exculpatory for subsequent conduct, indeed, virtually immediatel y thereafter, these two gentlemen, both of them Mr. Hernandez and Mr. Ca macho join in the effort again or rejoin the incident knowing of cour se that Mr. Riggins is armed and knowing that they we nt there to fight.
“Consistent with the cases I’ve ci ted, it’s a factor that you can consider in evaluating whether or not this is truly a spontaneous exclamation or something that is said to explain or justify past conduct or10 subsequent conduct, an exculpatory statement that a reasonable person would make. “When I look at the totality of thes e factors and the case law that I referenced, I don’t see the kind of spontaneous exclamation from unexpected, untoward, exciting event th at occurs that is made without reflection or without the reasonable like lihood or possibility certainly that’s being made for other purpose[s]. So I confirm my earlier ruling.” C. Analysis A spontaneous declaration or excited utterance is an exception to the hearsay rule. It is a statement that “(a) Purports to narra te, describe, or explain an act, condition, or event perceived by the declar ant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evi d. Code, § 1240.) The requirements for an admissible spontan eous declaration are: “(1) there must be some occurrence startling en ough to produce this nervous excitement and render the utterance spontaneous and unrefl ecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervou s excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumst ance of the occurrence preceding it.” ( Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468.) “The crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker.” ( People v. Gutierrez(2009) 45 Cal.4th 789, 811 .) The speaker’s mental stat e must be such that the speaker is dominated by nervou s excitement and speaks withou t reflecting, contriving, or misrepresenting. ( People v. Lynch (2010) 50 Cal.4th 693, 751-752, abrogated in part on other grounds as stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-638.) A defendant’s self-serving statements are inherently suspicious. ( People v. Frierson (1991) 53 Cal.3d 730, 745-746.) We review the trial court’s decision whether to admit a spontaneous statement for abuse of discretion. ( People v. Stanphill(2009) 170 Cal.App.4th 61, 73.) “[T]he11 discretion of the trial court is at its broade st” when it determines whether an utterance was made while the declarant was still in a state of nervous excitement. ( People v. Poggi (1988) 45 Cal.3d 306, 319.) The trial court focused on whether He rnandez’s statement was a spontaneous declaration because it agreed with the defe nse that Perez’s failu re to remember his comment was inconsistent with her prior stat ement. The trial court reasoned that while an incident involving chair throwing might cr eate some excitement, it was not of the same character as the nervous excitement that Hernandez might be expected to experience had the victims been shooting. The court found the evidence of any nervous excitement “thin.” Additiona lly, Hernandez was a gang me mber who had been involved in confrontations before, and understood that he and his codefendants were going to the house to fight. There was also evidence from which the trial court could reasonably conclude that Hernand ez knew Riggins had taken a weapon to the fight. All of these factors weighed against a determination that Hernandez was so excited by being chased by two people with chai rs or bats that his reflective powers were in abeyance when he made the statement. This coupled with the fact that the statement was exculpatory and self-serving was enough for the trial court to correctly determine that Hernandez did not have the mental state to make a spontaneous declaration. The trial court did not abuse its broad discretion in ex cluding Hernandez’s hearsay statement. Turning to the defendan ts’ constitutional arguments, they claim with little explanation that the exclusion of Perez’s st atement to an investigator violated their federal Fifth and Sixth Amendment rights to present a defense, their Sixth Amendment right to confront and cross-examine the w itnesses against them, and their Fourteenth Amendment right to due process. The argu ments have no merit because defendants forfeited the constitutional claims by failing to raise them below, because there was no error on which to base the constitutional clai ms, and because the exclusion of evidence pursuant to state law did not violate the defendants’ right to present a defense.12 The trial court specifically informed the parties that it would federalize all hearsay objections, but “[a]ny other obje ctions that raise constitutional issues, you’ll have to state it, what it is so I know if you are asserting some due process issue or something else.” The parties stated they had no objection to proceeding in that fashion. Defendants failed to raise below any obj ections on the federal constitutional grounds they now claim. The constitutional objections were not preserved for appeal. ( People v. Raley (1992) 2 Cal.4th 870, 892.) Hern andez’s reply brief argues People v. Partida (2005) 37 Cal.4th 428 does not preclude the argumen t on appeal. Had we determ ined the trial court’s ruling on the objection actually raised at trial was erroneous, we could consider the consequences of that error, in cluding whether the error was so serious as to violate due process. ( Id . at p. 437.) However, as we conclude that the trial court did not abuse its discretion in excluding Perez’s statement, ther e is no error on which to base defendants’ constitutional claims. ( People v. Roybal (1998) 19 Cal. 4th 481, 506, fn. 2.) Finally, the exclusion of Perez’s statem ent did not violate the defendants’ rights under the Fifth, Sixth, and Fo urteenth Amendments. “ ‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. . . .’ [Citation.] [¶] Itfollows, for the mostpart, that the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution.” ( People v. Cudjo (1993) 6 Cal.4th 585, 611.) Furthermore, evidence in support of defendants’ se lf-defense theory was not completely excluded. Victor Cedillo testified he armed hims elf with a chair before going outside. Crystal Picasso testified she saw two or three of the victims holding chairs and chasing the defendants. Her prior interv iew statement was adm itted into evidence, wherein she stated she thought the victims had ch airs or bats in their hands. She testified that Hernandez and Camacho ha d appeared scared when they came running back to the car. Hernandez testified that he saw Victor come rushing out with a chair and figured they were going to get hit, so he and Camacho ran away. A witness heard a folding chair13 hit the ground. Riggins testif ied the victims had “chairs and stuff” in their hands and were yelling at him. A chai r was found at the scene. Because evidence the victims were armed wi th at least one chair and possibly with bats was not completely excl uded, the exclusion of Perez’ s statement did not interfere with defendants’ right to present a defense. ( People v. Cunningham (2001) 25 Cal.4th 926, 999.) Defendants’ constitutional argume nts regarding the exclusion of Perez’s statement fail.
II Evidence of Unchar ged Act (Camacho) The prosecutor brought a motion in limine to admit evidence of defendants’ gang involvement. The prosecutor pr oposed to admit the evidence both in support of expert opinion and for the truth of the matter fo r purposes of motivation and for the gang enhancement (Pen. Code, § 186.22, subd. (b )). The particular incident to which Camacho’s argument is directed occurred in Ju ly 2007, approximately six months prior to the crimes at issue in this case. The prosecutor initially stat ed that she would call the officer who re sponded to a shooting, and who found defe ndant Camacho with his cousin Frank Camacho and two other validated gang members in a bedroom. Frank Camacho was hiding under the bed, defendant Camacho was sitting on the bed, and the gun was also found in the bed. Defendant Camacho’s hands were bleeding. The trial court initially ruled that it woul d preclude evidence of the shooting and of defendant Camacho’s hands bleeding. Howe ver, it overruled the objection to admission of the incident because it was recent in time, the probative value was significant for intent and motivation (both general moti vation and the intent to assist a criminal street gang), and because the prejudicial ef fect was comparatively minor. Camacho’s counsel requested the following instruction, which the trial court gave with respect to evidence of alle ged prior incidents of misconduct:14 “This evidence can be c onsidered by you consiste nt with instructions I’ll give you later in evaluating whethe r or not the defend ants intended to promote or further criminal street ga ng activity, or whether or not that intent serves as a motivation to engage in conduct that was engaged in as alleged by the People.
“You cannot consider this evidence to show that any one of these defendants have a propensity for viol ence or a character trait of criminal activity, that would be improper and [an] incorrect use of this evidence. “I’ll give more instructions on this issue. You can consider it as it goes to intent to participat e for motive in a criminal street gang, or as that intent relates to motivation to engage in conduct that was alleged, but you can’t consider it to show that [they have a] propensity for violence or character trait of being criminal in nature, that’s inappropriate.” Camacho then filed a motion in limine objecting to the admission of the incident pursuant to Evidence Code sections 352 and 1101. The trial court ruled on the matter after reviewing the police report of the prior incident. The court recounted the facts from the police report for the record. A group of Hispanic men had been “hanging out” on a car when another vehicle drove by. One of the Hispanic men s houted “gang war” and shooting commenced. Officers were nearby and responded almost immediately. Inside the vehicle located in front of the residenc e was a bloody handprint. Officers followed a trail of blood from the seat of the car to th e front door of the ho use. The homeowner consented to a search of the house. A number of people were found in a bedroom, including defendant Camacho wh o was bleeding profusely from a significant injury to his hand. He denied any knowledge of the sh ooting. Defendant’s cousin Frank Camacho was found hiding under the bed. In the be d was a firearm that had recently been discharged. No arrests were made and no prosecution was undertaken. The police could not determine what had occurred. The trial court expressed that the prejudic ial effect of admission would be that the jury might speculate that defe ndant Camacho was the instigator of the shooting, that he fired the gun unlawfully, or that he engage d in substantive criminal misconduct. The15 court expressed the opinion that a fuller versi on of the facts would actually mitigate any prejudice, because it would raise an infe rence that Camacho wa s not the aggressor. The court found that the evidence had pr obative value as to defendant Camacho’s cooperation and collaboration w ith members of a gang, and that any prejudicial effect because of speculation that he did something criminal in nature did not outweigh the probative value. The court ordered that the prosecution not argue or present to the jury any claim that Camacho had committed some illegal act relating to the prior shooting incident, and that the expert not give any such opinion. Thereafter, Detective Don Schumacher ga ve his expert opinion that defendant Camacho was a member of the Diamonds gang . The opinion was based in part on the incident in July 2007. Immediately afte r Detective Schumacher’s testimony regarding the July 2007 incident, the trial court gave the following limiting instruction:
“All of this evidence however cannotbe considered as evidence that these gentlemen have propensity for vi olence or a bad character such that they are more likely have committed the crimes which are charged here. “It can only be considered as to wh ether or not they have intent or motivation to engage in conduct on behalf of a criminal street gang.” Another responding officer also testified regarding the July 2007 incident, after the trial court ruled that any references to “mal e Hispanic subjects” be deleted. He also testified about the car with a bloody handprint , following the blood trail to the house, locating a bleeding defendant Camacho inside a bedroom of the house, finding a recently fired weapon in the bedroom, finding de fendant Camacho’s cousin Frank Camacho hiding under the bed, and hearing defendant Camacho claim to have hurt his hand when he punched a fence. Camacho argues the trial court erred in admitting evidence of the July 2007 incident because it was not relevant to the mu rder charge or to the gang enhancement, and even if it were relevant to the gang enha ncement, it was unnecessary in light of “the16 plethora of evidence presented on appellant’s gang affiliati on and association with other gang members.” Camacho further argues th at assuming the evidence was properly admitted under Evidence Code section 1101, subdivision (b), which permits the admission of prior acts evidence if it is relevant to prove a fact such as motive or intent, it should have been excl uded under Evidence Code section 352, which gives the trial court discretion to exclude evidence if its probativ e value is substantially outweighed by the danger of undue prejudice. Rulings regarding relevancy and the dete rmination whether the probative value of the evidence is substantially outweighed by the probability of undue prejudice are reviewed under an abuse of discretion standard. ( People v. Lee (2011) 51 Cal.4th 620, 643.) That standard requires this court to uphold the admission of evidence unless we find the trial court acted arbitrarily, capriciousl y, or in a patently absurd manner, and the admission of the evidence re sulted in a manifest miscarriage of justice. ( People v. Foss (2007) 155 Cal.App.4th 113, 125.) Evidence of the July 2007 incident was relevant both to the murder and attempted murder charges and the gang enhancements. The prosecution presented the case as a gang crime motivated by the desire to eliminate comp eting gang members from the neighborhood. Camacho’s attorney, on the other hand, defended him by claiming Camacho had not lived in the neighborhoodfor years, did not know the victims had moved into the neighborhood, was not aware until he got into Riggins’s car that Riggins and Hernandez intended to go fight with “some Mexicans over on 73rd Street,” and had no idea Riggins was armed, believing they were going to have a fistfight only. Evidence of Camacho’s gang affiliation as evidenced by his previous gang interactions was material to the prosecutio n’s case because it showed the nature of Camacho’s commitment to the gang, tended to refute Camacho’s claim that he did not know Riggins had a gun, and that he had no motive to fight the vic tims. The July 2007 incident was particularly probative because, like the present case, it in volved a territorial17 dispute between rival gangs. Because the pr ior act involved a shooting, and because after the shooting defendant Camacho was found in a room with other gang members and a recently fired gun, the incident was material to the prosecution’s position that Camacho participated in a gang territorial dis pute knowing that Riggins was armed. The prejudicial effect of the evidence was not significa nt. Evidence is considered unduly prejudicial “if it tends to evoke an emotional bias against the defendant as an individual and has a negligible bearing on the issues.” ( People v. Mendoza (2011) 52 Cal.4th 1056, 1091.) Prejudicial evidence is eviden ce that inflames th e emotions of the jury, motivating them to reward or punish one side because of the jury’s emotional reaction to the evidence, rather than evaluating the evidence for the point on which it was relevant. ( Ibid .) Evidence of the July 2007 incident was unlikely to inflame the passions of the jury because unlike the present case, the July 2007 case did not result in any deaths. Furthermore, as the trial court indi cated Camacho may have been the victim in the prior incident. The trial court repeatedly instructed the jury on the limited pu rpose for which it could use the evidence. We presume that the jury followed thes e instructions. ( People v. Delgado (1993) 5 Cal.4th 312, 331.) For all of these reasons, the trial court did not abuse its considerable discretion when it allowed admission of the July 2007 incident.
III CALCRIM No. 362 Riggins, joined by Hernan dez, claims the trial court erred when it gave the following instruction: “If defendant James Riggins or defendant Christopher Hernandez made a false or misleading statement befo re this trial relating to the charged crime, knowing the statement was fals e or intending to mislead, that conduct may show that th ey were aware of their guilt of the crime and you may consider it in determining their guilt. “You may not consider the st atement in deciding any other defendant’s guilt. If you conclude the defendant James Riggins or18 defendant Christopher Hernandez made the statement, it’s up to you to decide its meaning and importance. “However, evidence that the de fendant made such a statement cannot prove guilt by itself.” The substance of their argument is that the instruction established a “permissive presumption” of guilt. They claim that th e predecessor instructio n on consciousness of guilt, CALJIC No. 2.03, “contai ned judicially appr oved language that did not create a presumption of guilt as to ment al state, but CALCRIM No. 36 2 no longer contains that language.” CALJIC No. 2.03 stated: “ ‘If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider su ch statements as a circumstance tending to prove a consciousness of gu ilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.’ ” ( People v. Page (2008) 44 Cal.4th 1, 49, fn. 23.) The defendant in People v. Crandell (1988) 46 Cal.3d 833 ( Crandell ) (overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 34 6, 364-365), like the defendants here, argued that the instruction erroneously perm itted the jury to draw an impermissible inference w ithout foundation concerning his mental state. ( Crandell,

supra , at p. 871.) The defendant in Crandell argued that because a defendant’s guilt is the ultimate determination of th e truth or falsity of the crim inal charges, the jury might “view ‘consciousness of guilt’ as equivalent to a confession, es tablishing all elements of the charged murder offenses, including premeditation and de liberation, though defendant might be conscious only of having committed some form of unlawful homicide.” ( Id . at p. 871.) The Supreme Court’s response was that Cr andell’s “fear that the jury might have confused the psychological a nd legal meanings of ‘guilt’ is unwarranted. A reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some19 wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ ” ( Crandell, supra , 46 Cal.3d at p. 871.) Th e court concluded that the instruction did not address the defendant’s mental state at th e time of the offense and did not compel the jury to draw any impermissibl e inferences with regard to the defendant’s mental state. ( Ibid .) CALCRIM No. 362 has replaced the phra se, “consciousness of guilt” with the phrase, “aware[ness] of [their] guilt of the crim e . . . .” Defendants argue this means that under the new instruction the jury is effectively being to ld that it may consider the defendants’ awareness of their guilt of the crime as consciousne ss of their legal guilt as to the specific offense. We disagree. As we stated in People v. McGowan (2008) 160 Cal.App. 4th 1099, 1104, the differences between CALJIC No. 2.03 and CALCRIM No. 36 2 are “minor” and none of the differences “is sufficient to undermine our Supreme Court’s approval of the language of these instructions.” As with the instruction given in Crandall , supra , 46 Cal.3d at p. 871, the jury would not have confused the psychological and legal meanings of “guilt” of the crime. The jury would have understood th at false statements were not the equivalent of a confession, and were not themselves suff icient to prove guilt. No error appears in the giving of CALCRIM No. 362.
IV Natural and Probable C onsequences Instruction Hernandez and Camacho claim their c onvictions for voluntary manslaughter and attempted voluntary manslaughter must be reversed because the instruction on natural and probable consequences wa s not supported by sufficient evidence. We disagree. The trial court instructed the jury that it could find Camacho and Hernandez guilty of murder or manslaughter either because th ey aided and abetted the murder committed by Riggins with the intent th at Riggins commit murder or manslaughter, or because they intended to commit the offense of disturbing th e peace or simple assault, and under the20 circumstances murder or manslaughter was a natural and probable consequence of the intended offense. After the jury began deliberations, the ju rors sent several questions to the trial court regarding aiding and abetting liability. First, they asked whether, if they found Camacho and Hernandez guilty of aiding and abetting, they could find them guilty of a lesser charge. The trial court respond ed with the followi ng instruction: “Yes, an aider and abettor may be found guilty of a lesser included crime than that committe d by the perpetrator. “However, if you find that those aiding and abetting had the same intent as the perpetrato r when the greater crime was committed, then they are guilty of the same greater crime. “If, you find, however, that the cr ime committed by the perpetrator was not a reasonably foreseeable (natur al and probable) c onsequence of the criminal act originally ai ded and abetted, but that a lesser included offense, committed by the perpetrator during the commission of the greater included crime, was a reasonably foreseeable consequence, you may find the aider and abettor guilty of thatlesser included crime. “The Court cannot accept a verdict of guilty for any individual Defendant on a lesser included crime unless the jury has found that Defendant not guilty of the greater crime or crimes.” Later, in response to the above instructi on, the jury asked if manslaughter was a lesser included offense to first degree murd er. This question came after the jury had returned the verdict against Riggins. The tr ial court gave the following response: “Are you asking me, if an aider and abettor, under the natural and probable consequences theory, can be convic ted of a lesser offense such as manslaughter, when the perpetrato r commits 1st Degree Murder? “If so, the answer is yes, as long as the lesser included offense committed by the perpetrator, during the commission of the greater offense, was a reasonably foreseeable consequence.21 “Please refer to CALCRIM 403 and specifically the elements numbered 1, 2, and 3. Also, pleas e refer to CALCRI M 640 and 3517. [ 2 ] “If not, please re-ask your question.” The jury then asked, referencing their initial question, the following two questions: “If you go to a fight not knowing that a murder is going to occur [and] one does, can you be held accountable for the crime? “. . . Can you get to aiding [and] abetting by 40 1 and/or 403?” CALCRIM No. 401, referenced in the ju ry’s question, was the instruction on aiding and abetting based on the knowledge and intent to aid and abet the perpetrator. CALCRIM No. 403 was the in struction on natural and probable consequences. The trial court answered by telling the jury that it seemed to be confused as to the different theories of aiding and abetting. The court re-read portions of CALCRIM Nos. 401 and 403. The court then explained th at under CALCRIM No. 401 the perpetrator and aider and abettor share the same in tent, but under CALCRIM No. 403, the perpetrator and aider and abettor do not share th e same intent. The c ourt instructed that the jury could get to aiding and abetting by CALCRIM Nos. 401 and 403 because they set out different legal theories. The complained-of instruction is CALC RIM No. 403, the natu ral and probable consequences theory. Defenda nts claim the trial court sh ould not have given this

2 CALCRIM No. 403 is the instruction on na tural and probable consequences. Elements 1, 2, and 3 instructed that defendant must be guilty of disturbing the peace or simple assault, during the commission of which Riggins committed murder and attempted murder or a lesser included offence, and un der the circumstances, a reasonable person would have known that murder and attempted murder or any lesser included offense were a natural and probable consequence of disturbing the peace or simple assault. CALCRIM No. 640 informed the ju ry that it must find defendants no t guilty of first degree murder before determining their guilt of second degree murder, and must find them not guilty of second degree murder before determining their guilt of voluntary or involuntary manslaughter. CALCRIM No. 3517 instructed that the defendants could not be found guilty of both the greater charge d crime and the lesser crime.22 instruction because there was in sufficient evidence to support th is theory of guilt, as the shooting did not result directly from the intended crimes of di sturbing the peace or simple assault, but from the victims’ unanticipated conduct of rushing out of their house armed with chairs, and because there was no evidence to establish that defendants knew prior to the shooting that Riggins had a gun. “The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is subs tantial evidence to support a conviction we must view the re cord in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantia l evidence in support of conviction only if it can be said that on the evid ence presented no reasonabl e fact finder could find the defendant to be guilty on the theory presen ted. [Citation.]” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.) On this reco rd we find ample evid ence for defendants’ manslaughter conviction as a natural and probable consequence of the crimes of disturbing the peace or simple assault, motivatedas they were in th is case by a gang turf

war. Defendants’ claim that the shooting was the result of the victims’ own conduct, and that they could not have anticipated th e victims would rush out of their home armed with a chair or chairs when confronted by defendants is not worthy of serious consideration. As previously stated, ther e was evidence that the defendants were VDS gang members, and that the victims were asso ciated with a rival gang. There was expert testimony that in Sacramento the Diamonds are territorial and want to control the neighborhoods they live in. One of the pa st Diamond gang crimes occurred when Frank Camacho, defendant Camacho’s cousin, drove by the Cedillo brothers’ (the victims in this case) house and pointed a gun at them. Victor responded by throwing a rock at the passing car, and Frank Camacho fired two shots at him.23 Another past occurrence involved defe ndant Hernandez, who confronted the victim outside the house where the victim wa s staying, and demanded to know what gang the victim was from. The vi ctim responded by starting a fi stfight, and Hernandez flashed a gun at the victim. In the earlier referen ced incident involving defendant Camacho, there was an exchange of gunfire when a car carrying gang member s drove by a house. Past experience alone woul d have informed defendants that the likely result of confronting members of a rival gang at their home would result in an aggressive response by the rival gang members, and they should have anticipated such a response. Defendants’ argument that the evidence did not establish that th ey knew prior to the shooting that Riggins had a gun is contrary to the record. As stated, we draw all reasonable inferences in favor of conviction. In this case there was evidence Crystal Picasso told police she heard Hernandez say that he “kept telling” Riggins to give him the gun. It is reasonable to infer from this th at Hernandez knew about the gun at least during the incident. Hernandez’s statement, also re layed by Picasso to poli ce, that he “would’ve got all of them” is evidence from wh ich we may infer his intent. Furthermore, the gang expert testified that when members intended to confront rival gang members, a gang that had access to firearms would take a firearm to the confrontation. VDS had access to firearms. If one person had a gu n, the others were likely to know it. The issue is whether under all of the circumstances “a reasonable person in the defendant’s position would haveor should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.” ( People v. Nguyen, supra , 21 Cal.App.4th at p. 531.) Defendants’ position in this equation includes the fact that they are affilia ted with a street gang and steeped in gang culture. “When rival gangs clash . . . verbal taunting can quickly gi ve way to physical violence and gunfire. No one immersed in th e gang culture is unaware of these realities,24 and we see no reason the courts shou ld turn a blind ey e to them.” ( People v. Montes (1999) 74 Cal.App.4th 1050, 1056.) The trial court did not err in giving the natural and probable consequences instruction.
V Denial of Access to Juror Information All defendants argue the trial court abused its discretion in refusing a request to release juror information in an attempt to support a moti on for new trial based on juror misconduct. Camacho’s attorney made his closing ar gument on August 18, 2011. The jury returned its verdict on August 31, 2011. On October 3, 2011, approximately one and one-half months after the fact, and a full m onth after the verdict was rendered, one of Camacho’s cousins filed the declaration that wa s the basis of the request to release juror information. The declaration stated that on the day Camacho’s attorney delivered his closing argument, the cousin was having lunch at the same restaurant as three of the jurors in the case. The declar ation named the jurors by juro r number. The cousin stated that she overheard the jurors talking about Camacho’s lawyer’s closing argument. They said, “The look on number 1’s face was pr iceless.” They talked about Camacho’s lawyer’s speech, saying that it was “flowi ng nicely” but was “frustrating because he stuttered at times.” The cous in stated that she did not kno w to whom the jurors were referring as “number 1,” but she assumed it was her cousin. On the basis of this declaration, Camacho claimed the jurors were engaged in misconduct because they discussed the case outside the jury room. In denying the request, the trial court made the following comments: “[T]here was a period here of seve n weeks or more between the heard conversation and the signi ng of the declaration.25 “There was also a period of roughly two weeks after the conversation was heard before and during which the Court was in session. The jury was deliberating during whic h there was no disclosure of what was heard.
“And then the declara tion pops up three days before the time set for judgment and sentence. The timing sequence in the connection there of the declarant as a family me mber causes the Court pause with regard to accuracy and completeness. “But assuming that it is accurate, it’s just not the kind of conduct that constitutes a reasonable basis to proceed here. “It is arguably a technical violation not to talk about any subject matter or aspect of the trial, but that part which is clearly related to the trial concerns the manner of presentation. It is speaking style of the attorney, flowing nicely, stuttering at times w ithout any substantive reference to content or issues or subject matte r really about th e case itself. “That part of the statement, ‘t he look on number one’s face was priceless’, is extremely difficult, i ndeed, impossible to understand. The dominant inference because we refer to our jurors as juror number 1 and juror number 2 based on the seat of oc cupancy is that that’s a referenced juror, but it could refere nce anyone including me. “You just don’t know. But when yo u look at it as a whole, there is just not the kind of inference you ca n draw that there’s misconduct of a character that would improperly influe nce a jury verdict. [¶] . . . [¶] “I would note in this case because the Court has a balancing obligation under the Rhode’s case that this is th e type of case involving serious gang activity, gang tension, instances where th e witnesses were speaking in some instan ces with what would appear to be fear. “This is the type of case that the public policy of preserving the privacy and confidentiality of jurors and not exposi ng them to the possible future questioning or disturbance b ecomes a public policy matter that’s extremely important.” Defendants claim the trial court abused its discretion when it denied access to juror information, and that su ch abuse of discretion deprivedthem of their federal Sixth and Fourteenth Amendment right to trial by an impartial jury free of misconduct. The claim has no merit.26 Following the verdict in a criminal case, the defendant or hi s counsel may petition the court for access to sealed personal juro r identifying informati on, including names, addresses, and telephone numbers, for the pur pose of developing a motion for new trial or for any other lawful purpose. (Code Civ. Proc., §§ 206, subd. (g), 237, subd. (a)(2).) The petition must be supported by a declaration establishing good cause for the release of the information. (Code Civ. Proc ., § 237, subd. (b).) If the pe tition and declaration establish a prima facie showing of good cause and there is no compelling interest against disclosure, including protecting jurors from th reats or danger of physical harm, the trial court must set the matter for a hearing to determine whether to disclose the information. ( Ibid. ) A prima facie showing of good cause is “a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigati on is necessary to provide the court with adequate information to rule on a motion for new trial.” ( People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552, supersed ed by statute, but still setting forth the applicable test, as stated in People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) Even if the petition sets forth a prima facie showi ng of good cause, the trial court may not set the matter for a hearing if it finds a compelli ng interest against disclosure. (Code Civ. Proc., § 237, subd. (b).) We review the denial of a petition un der the deferential abuse of discretion standard. ( People v. Carrasco, supra , 163 Cal.App.4th 978, 991 .) We find no abuse of discretion in this case because we conclude the trial court reasonably fo und good cause had not been established. As the trial court noted, assuming Camacho’s cousin’s declaration was accurate and truthful, the viol ation was a technical one only. The jurors did not discuss anything subs tantive about the case. The jurors’ conduct was not “ ‘of such a character as is likely to have influenced the verdict improperly’ . . . .” ( People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322, citing Evid. Code, § 1150, subd. (a).)27 Defendants’ argument that if the jurors ta lked about something nonsubstantive, they might have had a more substan tive discussion that was not ove rheard, is mere speculation and does not rise to the level of pr ima facie evidence of good cause. Additionally, even if Camacho had made a prima facie showing of good cause, the court acted well within its discretion in dete rmining that there was a compelling interest against disclosure. Code of Civil Procedure, section 237, subdivision (b) provides that the trial court, “shall not set the matter for hear ing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting juro rs from threats or danger of physical harm.” As the trial court noted, the case involve d serious gang activity, and the witnesses appeared to be testifying with fear. There is evidence in the record regarding the violence of gang culture, how gang culture permeates the community, and how gangs intimidate non-gang members into defying the criminal ju stice system. In this particular case the gang defendants went to the home of their victims and sh ot and killed two members of the household. As this court stated in Rhodes , “Few would quarrel with the proposition that the willingness of people to serve on a jury would be chilled by the knowledge that, once deliberations are complete, a party to the action may have unlimited access to the home address and telephone number of each juror.” ( People v. Rhodes, supra , 212 Cal.App.3d at p. 548.) Thus, the release of ju ror information in cases such as this could jeopardize the ability of the crim inal justice system to prosec ute cases involving criminal
gangs.28 Because of the failure of defendants to establish good cause, and the compelling interest against disclosure of juror identifying information in this case, the trial court did not abuse its discretion in refusi ng to set the matter for hearing. 3
VI Sentencing Issues A. Riggins’s Sentence for Attempte d Deliberate and Premeditated Murder The trial court sentenced Riggins to 25 years to life on count three (attempted deliberate and premeditated murder). He argue s the trial court shoul d have imposed life in prison with the possib ility of parole. The Peopl e concede and we agree. Penal Code, section 664, subdivision (a) provides that the punishment for attempted willful, deliberate, and premeditate d murder is imprisonm ent for life with the possibility of parole. An unaut horized sentence is subject to correction on appeal, and we shall direct the trial court to modify the sentence on count th ree to life in prison with the possibility of parole. B. Riggins’s Sentence Under the Gang-Enhancement Statute The trial court sentenced Riggins to th ree 15-year-to-life terms pursuant to Penal Code, section 186.22, subdiv ision (b)(5). He argues the correct sentence for the enhancement where the substan tive offense carries a life se ntence is a minimum parole eligibility period of 15 years, not a separate indeterminate term. The People concede and
we agree. Penal Code section 186.22, subdivi sion (b)(5) provides that where the enhancement is to a felony “ punishable by imprisonment in the state prison for life [the defendant] shall not be parole d until a minimum of 15 calendar years have been served.”

3 We reject defendants’ argument that re versal is required because of cumulative prejudice from the collective errors because there is no predicate error relating to the determination of defendants’ guilt on which to base such a claim.29 People v. Ortiz(1997) 57 Cal.App.4th 480, 485-486, held that this language was “clear and unambiguous” and that the “enhancement is not an add itional determinate term, but an extended parole eligibility date.” We shall order the sentence modified accordingly. C. Sentence for Count Three Gang Enhancement Hernandez and Camacho argue the trial c ourt erred when it imposed a three-year four-month sentence on the gang enhancement to count three, attempted voluntary manslaughter. The People concede and we agr ee. The trial court imposed sentence on the gang enhancement for count three as if the underlying crime, attempted voluntary manslaughter, were a violent felony, but it is me rely a serious felony for purposes of the gang enhancement. Penal Code section 186.22, subdivisions (b)(1)(B) and (b)(1)(C ) provide that the additional term for a serious felony is five years and the additional term for a violent felony is 10 years. The trial court imposed an additional term of three years and four months (one-third of 10 years) on th e gang enhancement to count three. Attempted voluntary manslaughter is not a vi olent felony as defined in subdivision (c) of Penal Code section 667. 5. It is, however, a serious felony pursuant to subdivisions (c)(1) and (c)(39) of Penal Code section 1192. 7. The trial court should have imposed a one-year and eight-month sentence (one-third of 5 years). We shall order the sentence modified accordingly. D. Court Aware of Discretion to Strike Gang Enhancement Camacho, joined by Hernandez, ar gues the case must be remanded for resentencing because the trial court imposed punishment for the street gang enhancement based on the erroneous belief the e nhanced punishment was mandatory. Defendants’ argument is ba sed on language the trial c ourt used when it imposed sentence. In sentencing Camacho and He rnandez, the trial court began with the following comments regarding their gang involvement:30 “Fundamentally the weight of th e evidence here is it was stated understood they were going to beat up some Surenos. They went to this house in the middle of the night where Surenos lived. “. . . There’s ample evidence of extensive gang involvement and expert opinion rendered that in th at context gang members customarily know about the presence of a firear m and would have a firearm present when undertaking such tasks . . . . “Their juvenile record is surprisingly similar in a way. They both show not just a history of conduct and criminal conduct, but criminal conduct involving gangs. Both were on probation at the time that this incident occurred. Both had sustained juvenile petitions of crimes that were violent in form, particularly, as you lookat the evidence as it was adduced here.” As to the gang enhancement on count one, th e trial court ruled: “As to the 186.22 [subdivision] (b)(1) allegati on, which was found true, th e defendants’ sentence is enhanced by a separate c onsecutive term of ten years as mandated .” (Italics added.) As to the gang enhancement on count two, the tr ial court ruled: “As to the section 186.22 [subdivision] (b)(1) allegation, which was found true, the defenda nts, this is as to both defendants, is enhanced by a separate c onsecutive term of three years four months as mandated for a total as to this coun t of five years four months.” (Italics added.) As to the gang enhancement on count th ree (attempted murder) the tria l court ruled: “as to the 186.22 [subdivision] (b)(1) allegations whic h are true, found true, the defendants are sentenced to a separate consecutive term of three years four months for a total of four years four months.” The trial court may strike the add itional punishment for the street gang enhancement “in an unusual case where th e interests of justice would best be served . . . .” (Pen. Code, § 186.22, subd. (g ).) The trial court’s discretion to strike the gang enhancement is abused wh ere the court was not aware of its discretion, because an erroneous understanding of its discretionary power is not a true exercise of discretion. ( People v. Marquez(1983) 143 Cal.App.3d 797, 803.)31 However, we presume that the trial court was aware of and followed the applicable law, and this presumption extends to judici al exercises of discretion in sentencing. ( People v. Mosley (1997) 53 Cal.App.4th 489 , 496.) Error must be affirmatively shown. ( Ibid .) Defendants’ affirmative show ing of error is limited to the trial court’s use of the phrase “as mandated” when impo sing the sentence enhancement. In this context, we conclude the phrase “as mandated” referred to the length of the enhanced term, rather than the imposition of the enhanced term. The trial court’s language was taken verbatim from the probati on report, which stated: “As to the Section 186.22 [subdivision] (b)(1) [Penal Code] allegation, which was found true, it is recommended the defendant’s sentence be enha nced by a separate, consecutive term of ten (10) years as mandated.” Had the probati on report intended to convey that a term of enhancement was mandatory, it would not ha ve “recommended” the enhancement, but stated that the enhanced term was mandatory . Instead, the language of the probation report was intended to convey that if the trial court accepted its “recommendation” to impose the enhancement, the ma ndated term was 10 years. Our understanding of the tria l court’s phrasing is further reinforced by the fact that Camacho’s trial counsel filed a statement in mitigation, in which he requested that the gang enhancements be stayed. This would have alerted the trial court that it had a choice in imposing the sentence. It nevertheless imposed the gang enhancement. In so doing, the trial court stressed that the nature of the crime was a gang crime, and that both Camacho and Hernandez had a hist ory of criminal gang conduct. We conclude the trial court was aware of its discretion to strike the gang enhancement, and did not abuse its disc retion when it imposed the enhancement.
VII Challenge to Fees is Forfeited Riggins, joined by Camacho and Hernand ez, argue the trial court erred when it imposed jail booking and classification fees b ecause there was insuffi cient evidence of32 ability to pay and the administrative cost of the fees. Because no ne of the defendants raised this issue be low, it is forfeited. The trial court imposed a main jail bo oking fee and a main jail classification fee pursuant to Government Code section 29550 .2 on each defendant. Government Code section 29550.2 provides for payment of such fees in an amount not to exceed the actual administrative costs if the defe ndant has the ability to pay. Defendants claim the argument is cogni zable on appeal despite the failure to object to the fees below because the challenge is to the sufficiency of the evidence to support the judgment. Subseque nt to the completion of briefi ng in this case, the Supreme Court decided People v. McCullough (2013) 56 Cal.4th 589, which held “that a defendant who fails to contest the booking fee when the court imposes it forfeits the right to challenge it on appeal.” ( Id . at p. 591.) Accordingly, defendants forfeited the claim when they failed to object to the imposition of the fees below.
VIII Multiple Murder Special Circ umstance as to Riggins In counts one and two, Riggins was ch arged and found guilty of first degree murder with a multiple murder special circumstance fi nding pursuant to Penal Code section 190.2 subdivision (a)(3). Defendant is correct that only one murder special circumstance should have been alleged and found true. ( People v. Halvorsen (2007) 42 Cal.4th 379, 422.) The remedy is to strike the superfluous finding. ( Ibid .) DISPOSITION We remand the matter to the trial court w ith directions to: (1 ) modify Riggins’s sentence on count three (attempted willful, de liberate, and premeditated murder), to life in prison with the po ssibility of parole; (2) strike the terms imposed against Riggins pursuant to Penal Code section 186.22, su bdivision (b)(5) and note a 15-year minimum parole eligibility date for each of the Pe nal Code section 186.22, subdivision (b)(5) enhancements; (3) vacate one of Riggins’s two multiple-murder special-circumstance33 findings; (4) modify the count three gang enhancement as to Camacho and Hernandez from three years and four months to one year and eight months; and (5) forward copies of the amended abstracts to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

BLEASE , Acting P. J.

We concur:

HULL , J.

MAURO , J.