Filed 5/8/14 P. v. Navarrete CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
DANNY NAVARRETE et al.,
Defendants and Appellants. B247600
(Los Angeles County Super. Ct. No. BA386978)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed with modifications. John A. Colucci, under ap pointment by the Court of Appeal, for Defendant and Appellant, Danny Navarrete. Orly Ahrony, under appointment for by the Court of Appeal, for Defendant and Appellant, Juan Carlos Guardaro. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, Mary Sanchez and Louis W. Karlin, Deputy Attorn eys General, for Plaintiff and Respondent.2 Appellants Danny Navarrete a nd Juan Carlos Guardado we re convicted, following a jury trial, of the first de gree murder of Rodolfo Melend ez in violation of Penal Code 1 section 187, subdivision (a). The jury fo und true the allegations that appellants
committed the murder for the be nefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). The ju ry also found true the allegations that appellant Navarrete personally used and discharged a fire arm causing death within the meaning of section 12022.53. The jury fo und true the allegation as to appellant Guardado that a principal personally used an d discharged a firearm in the commission of the murder within the meaning of section 12 022.53. The trial cour t sentenced appellants to 25 years to life in prison fo r the murder conviction, plus 25 years to life for the firearm
enhancement. Appellants appeal from the judgment of conviction, contending the trial court erred in admitting an out-of-court statem ent by appellant Guar dado and im posing and staying a ten-year enhancement term for the gang allegation. Appellant Guardado
contends his counsel was ineffective for failing to request a limiting instruction for evidence of his prior bad acts. He further contends there is insufficient evidence to support his conviction for firs t degree murder. We order the ten-year enhancement term stricken and replaced with a mi nimum parole eligibility term. We affirm the judgment of conviction in all other respects.

Facts In the evening of August 14, 2010, Ange l Medina drove his family and Rodolpho Melendez to a party near 84th Place and Main Street. Melendez was a member of the 18th Street gang. The party was in territory claimed by a rival gang, Sur Trece. From the party, Medina drove Melendez to pick up his car so that Melendez could leave the party
when he wished. The two drov e back to the party separately. As Medina turned onto 84th Place, he saw Melendez parked in front of a tire shop near Main Street. This

1 All further statutory references are to the Penal Code unless otherwise specified.3 location was across the street from a Sur Trec e hang-out. Medina drove past Melendez’s car and noticed two Hispanic men walking across the street toward Melendez’s car. Medina pulled over and sa w the men go up to Melendez’ s car. One man wore a dark shirt and a baseball cap and the other was bald and wore a striped shirt. The man in the striped shirt knocked on the car window. They then appeared to be talking with Melendez. One of the men made a gang sign. Medina then heard a gunshot.
The two men ran back across the street . The man wearing the cap handed an object to the man wearing the striped shirt. The man in the striped shirt ran past Medina’s vehicle and made a gang sign. Medi na was afraid. He went back to the party and told his family what had happened. The Medina family returned to Melende z’s car. Melendez was barely alive, and was bleeding from a gunshot wound to his he ad. He soon died from the injury. A few weeks after the shooting, police showed Medina some photographic lineups. Medina identified appellant Guardado’s photograph in one line-up (Exhibit 5) and
said he was the shooter. He identified a ppellant Navarrete’s photograph in another lineup (Exhibit 6) and said he was the accomplice. Medina told officers he was sure of his identification. At the preliminary hearing and at trial, Medina professed to be less sure of
his identification. 2 He gave differing accounts of wh ich man was the shooter. At the preliminary hearing, Medina testified that the person he identif ied in Exhibit 5 was appellant Guardado, who was wearing the stri ped shirt and was the shooter. At trial, Medina testified that appellant Navarrete was the person in the Exhibit 5 line-up, was the one wearing a baseball cap at the time of the shooting and was the shooter. Medina acknowledged that he was afraid of retribution for testifying. The shooting was captured on video by su rveillance cameras ac ross the street. The prosecutor played the video at trial, but none of the camer as recorded the faces of the shooter and his accompli ce with enough clarity to identity them.

2 At the preliminary hearing, Medina sa id he was 30 to 40 percent sure of his identifications in the photo line-ups. At trial, Medina said he was only 40 percent sure of his identifications.4 The prosecution also offered the tes timony of Ernie Arellano, who was a Sur Trece associate or member. In 2010, Arella no had known appe llant Guardado for about a year. Appellant Guardado was a Sur Trec e gang member. Arellano had also known appellant Navarrete for about a year. Appe llant Navarrete was a member of the W2K gang. The W2K gang got along with the Sur Trece gang. Before trial, Arellano told Detective Fe rreria that appellant Guardado warned him that he and appellant Navarrete had caught an 18th Streeter “slippin’” (unprepared) and to lay low until everything calm ed down. At the preliminar y hearing and at trial, he denied making this statement. At trial, th e prosecution played the audio-recording of Arellano’s July 24, 2011 and November 9, 2012 interviews with Detective Ferreria. In these recordings, Arellano can be heard telling detectives about appellant Guardado’s statement about catching the 18th Streeter “slippin.’” 3 After the prosecution played the recordings, Arellano testifie d that he was telling the tr uth in the interviews.
Arellano testified at trial that he was a fraid of appellants. He feared that his testimony would result in violen t retribution against himself a nd his family. At one point,
he refused to return to court after a break because he was afraid of being seen by appellants’ family members. He was arrested and ordered to return to court. When he returned to court, he ack nowledged that police had relo cated him in October 2011 and were assisting him with re nt and meal payments. The prosecution also presented the test imony of Luis Canales, who was a Sur
Trece associate or member. He was arrested for a probation viol ation on January 21, 2012, for possession of body armor. At that time, he described himself as “a taxi for the
homies.” Canales knew both appellants. Appella nt Guardado and appellant Navarrete appeared to be good friends. The appearance of both men was different at the time of
trial than it had been at th e time of the Melendez shooting in 2010. At that time, appellant Navarrete had a shaved head. Appe llant Guardado’s hair looked different.

3 There are a number of inconsistencies in Arellano’s account of the “slippin’” statements in the interview.5 At the time of the shooting, Canales was across the street at the home of a Sur
Trece member. Other Sur Trece members were there, including appellant Guardado. Arellano was also present. Canales and the others saw Melendez park his car. Appellant
Guardado walked acro ss the street. Canales heard a gunshot from that direction, and everyone scattered. When Canales was show n a video of the shooting, he stated that appellant Navarrete was the one wearing th e hat and appellant Guardado was the one wearing the striped shirt. A recording of Canales’s November 14, 20 12 interview was play ed for the jury. In it, he stated that appellant Guardado and appellant Navarrete went across the street and “banged” on the person in the car. Canales then testified that this statement was true. He saw both appellants walk across the street and heard the gunshot. His statements were based on seeing the shooting, not on viewing the video.
Canales was afraid of retribution for tes tifying. Like Arella no, Canales had been
relocated and was receivin g payments from the police for food and lodging. The prosecution also presented the test imony of Los Angeles Police Department Officer Guillermo de la Riva, who testified as a gang expert. According to the officer,
Sur Trece had about 25 members at the time of the Melendez killing. WTK (or W2K) was a smaller associated gang or clique. The main activities of Sur Trece were drive-by shootings, murders, assaults, robberies, extortions and narcotics sales. Committing a
serious crime such as murder would allow a person to gain respect within the gang and move up in the gang hierarchy.
Sur Trece’s main rival was the 18th Street gang. In late 2009, Sur Trece had taken over territory controlled by 18th Street. At the time of the Melendez killing, the 18th Street gang was actively trying to regain co ntrol of its lost terr itory. Sur Trece was resisting. There were multiple incidents in which members of the two gangs shot at each
other. If a Sur Trece member encountered a ri val gang member in Su r Trece territory, he
would have to confr ont the rival or face penalties from his fellow gang members.
Melendez was killed in the hear t of Sur Trece territory.6 According to Officer de la Riva, Arella no and Canales were members of Sur Trece at the time of the Melendez killing, as was a ppellant Guardado. Appellant Navarrete was
a member of WTK. Melendez was a member of the 18th Street gang with numerous gang tattoos on his arms and face. Officer de la Riva opined that if a shooting occurred in the manner described by the prosecution witnesses, it would have been for the benefit of the Sur Trece gang. The Sur Trece gang members would ha ve to confront the strange r to find out if he was planning an attack. By shooting the stra nger, the gang members instilled fear in the community and would cause rival gang memb ers to think twice about going into Sur Trece territory. According to Officer De La Riva, the shooting was carried out in a typical gang manner, with one gunman and one person acting as a lookout. Appellant Navarrete presented no evidence in his defense. Appellant Guardado called Detective Ferreri a, who testified that although Canales did not identify appellant Gu ardado from the su rveillance video during the recorded portion of the police intervie w on July 24, 2011, Canales did identify him at the detective’s desk during an unrecorded period. Arella no also identified appellant Navarrete from the video on that date, but this identification al so was not recorded because the detective forgot to turn the r ecorder on.

Discussion 1. Arellano’s statements to police Appellants contend the trial court erre d in admitting Arellano’s statements to police concerning appellant Guardado’s admi ssions about catching an 18th Streeter “slippin.’” They claim the statements were coerced and involuntary and their admission violated appellants’ federal constitutional righ ts to due process and a fair trial.

a. Applicable law
It is the burden of a defendant seekin g to exclude testimony of a third-party witness as being coerced to establish th at the statement was involuntary. ( People v.7 Douglas (1990) 50 Cal.3d 468, 500, ov erruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) A defe ndant may only challenge the admission of a third party witness’s statemen t when the evidence would violate the defendant’s own right to due process of the law and a fair trial. ( People v. Jenkins (2000) 22 Cal.4th 900, 966; People v. Badgett (1995) 10 Cal.4th 330, 347.) This is so because “the primary purpose of excluding coerced te stimony of third parties is to assure the reliability of the trial proceedings.” ( People v. Badgett, supra , 10 Cal.4th at p. 347.) No single factor is dispositive in evalua ting the voluntariness of a statement. ( People v. Williams (1997) 16 Cal.4th 635, 661.) “In deciding the question of voluntariness, the United States Supreme Cour t has directed courts to consider ‘the totality of circumstances.’” ( Id. at p. 660, quoting Withrow v. Williams (1993) 507 U.S. 680, 693-694.) Relevant considerations include “‘the crucial element’” of police coercion; the length, location and continuity of the interview; and the interviewee’s defendant’s maturity, education, phys ical condition and mental health. ( People v. Williams, supra , 16 Cal.4th at p. 661.) Coercive conduct alone is not sufficient for reversal. “A confession is not involuntary unless the coercive police conduct and the defendant’s statement are casually related.” ( People v. Williams (2010) 49 Cal.4th 405, 437.) Ultimately, the question is whether the stat ement is the product of an “‘essentially
free and unconstrained choice’” or whether th e defendant’s “‘will ha s been overborne and his capacity for self-determination cr itically impaired’” by coercion. ( Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 225.) Appellate courts “independently review the entire record to determine whether a witness’s testimony was coerced, so as to re nder the defendant’s trial unfair,” while “defer[ing] to the trial court’ s credibility determinations, and to its findings of physical and chronological fact, insofar as they ar e supported by substantial evidence.” ( People v. Boyer (2006) 38 Cal.4th 412, 444.) To the ex tent there is conflicting evidence regarding the alleged coercion, the reviewing court mu st accept the version most favorable to the People, to the extent supported by the record; however, if th e facts are not in dispute, it8 will review the record de novo. (See, e.g., People v. Badgett, supra , 10 Cal.4th at pp. 352-354; People v. Anderson (1990) 52 Cal.3d 453, 470.)

b. Proceedings below The court held a hearing to determine th e admissibility of Arellano’s statements. The court found Arellano’s statements to poli ce were not coerced and were admissible.
The court also found that Arellano was not a “suggestible” witness, was “trying his best to answer the questions,” and was “pretty smart actually.” The court based its ruling on Arellano’s testimony at the hearing and the transc ript of the police interview of Arellano.

c. Analysis
An examination of the factors listed in People v. Williams, supra, 16 Cal.4th at p. 661 does not show coercion. Arellano was advised of his Miranda 4 rights before the police interview began. The interview was not lengthy. There is nothing about the location of the interview which suggests th at it impaired Arellano’s ability to give voluntary answers. Arellano was only 19, but he was mature for his age. He was taking care of his daughter and working. The co urt found that Arellano was “pretty smart actually.” Arellano’s answers to questions during the interview and at the hearing support this conclusion. Arellano was not in jured, and gave no indication that he was hungry or thirsty. In add ition, the detectives repeatedly told Arellano that they only
wanted the truth. When Arella no provided information, the detectives tested him, asking how he knew. They did not provide their ow n version of events for Arellano to adopt. Appellants claim the police used coercion in the form of threats of criminal charges and implied promises of leniency. Appellant Guardado’s argument focuses on Arellano’s testimony at the hearing while appe llant Navarrete’s focuses on the interview itself. Each joins th e other’s contentions.

4 Miranda v. Arizona (1966) 384 U.S. 436.9 Appellant Guardado first points to the pres ence of Detective Ferreria at the hearing as coercive. Trial counsel objected to the detective’s presence at the hearing on the ground that it was coercive to have him ther e when the purpose of the hearing was to
determine whether he coerced Ar ellano. The trial court overru led the objection. Counsel offered no authority to suppor t his contention in the trial c ourt and offers none on appeal. Any witness who considers chan ging a previous statement can expect to be impeached on this point, and the impeachment will freque ntly come from a person who heard the previous statements. In this case, Detective Ferreria was the prosecution’s investigating officer, and so there was nothing unusual or im proper in his presence. His mere presence
was not coercive. Appellant Guardado next points to a seri es of questions and answers during crossexamination of Arellano at the hearing to s how that the detectives were threatening Arellano with criminal charges in order to get him to cooper ate. Defense counsel: “So you felt very strongly motivat ed to cooperate with the po lice; correct?” Arellano: “Yeah.” Defense counsel: “In fact didn’t the detective tell you many, many, many, many times that you were gonna get thrown under the bus for this very crime?”
Arellano: “Yes.” Defense counsel: “And you believed him, didn’t you?” Arellano: “Yes.” The transcript of the interview show s that the detective was telling Arellano that other people were trying to throw him under the bus. Appellant Guardado claims, in accurately, that Arellano testified “that he talked to the police because he believed the Detective would make sure that he [would] go down for the murder.” In fact, de fense counsel asked, “You’ve al ready said how your – your reason for talking to the detectives, despite havi ng a lot of fear when talking to the police about this, your reason was you thought that , in your mind, you could go down for the murder yourself; correct?” Arellano agreed. As Arella no subsequently explained, however, he believed he might be convicted of the murder “[ b]ecause in the video, you couldn’t tell who it was” and “[b]ecause other pe ople were trying to say it was me in that video.” Thus, the testimony q uoted by appellant Guardado do es not show that Arellano10 spoke with the detectives b ecause he believed they would “make sure” he was convicted of the murder. Arellano’s fear, if any, wa s of other people incriminating him. As appellants point out, the detective’s stat ements during the interview that others
had thrown Arellano under the bu s were apparently a ruse. Appellant Navarrete contends the ruse qualified as coercion. Ruses are permissible, as long as the ruse is not likely to produce an untrue statement. ( People v. Chutan (1999) 72 Cal.App. 4th 1276, 1280, citing inter alia Frazier v. Cupp (1969) 394 U.S. 731, 7 39 [officer falsely told the suspect his accomplice had been captured and had confessed].) Appellant Navarrete relies primarily on People v.
Lee (2002) 95 Cal.App.4th 772 to show that the ruse in th is case was coercive. In Lee , the police told the witn ess that he had been incriminat ed by a polygraph test, then “threatened him with a murder charge unless he named the defendant.” ( People v. Quiroz (2013) 215 Cal.App.4th 65 , 79.) “The vice in Lee was that the interrogation was ‘not designed to produce the truth as [the witness] knew it but to support a version of events the police had already decided upon.’” ( Ibid .) 5 Here, the detectives did not tell Arellano that they believed he was guilty of the murd er and did not tell him whom they wanted
him to incriminate or what th ey wanted him to say. Thus , their ruse was permissible. Appellant Guardado also points to ques tions by defense coun sel about Arellano’s daughter to show that the detectives threaten ed to separate appellant from his daughter if he did not cooperate. Defense counsel as ked, “And thinking about your daughter, you felt almost desperate to tell th e policeman what he wanted to hear; correct?” Arellano agreed. Defense counsel continued, asking “Did he not even me ntion on many, many, many times the detective brought up your da ughter, your family?” Arellano agreed. Defense counsel asked, “And that made you ve ry, very, very scared; correct?” Arellano agreed. Appellant Guardado contends Arella no was “horrified that he may not see his

5 Similarly, in People v. McClary (1977) 20 Cal.3d 218, also relied upon by appellant Navarrete, the police promised the de fendant leniency if she changed her story to match the facts represented by the police, and threatened to charge her with murder if she did not. ( Id . at pp. 224, 229.) That was not the situation here.11 young daughter again if he did not testify to Detective Ferreri a’s liking.” Nothing in the quoted questions or any othe r testimony shows Arellano believe d he had to testify to the detective’s liking or believed he woul d “never” see his daughter again. The transcript of the interview does re veal numerous mentions of Arellano’s daughter. Generally, these references were made during a discussion about whether Arellano wanted to get out of the gang life. Appellant Navarrete is correct that at one point the detectives told Arellano he woul d be watched twenty-four hours a day seven days a week and “when you end up buying d ope somewhere, when you least expect it, you’re going to get arrested and you’re never going to see your daughter again.” Even if this is construed as a threat, it is a hollo w one. Arellano would ha ve nothing to worry about as long as he followed the law, and it is extremely unlikely that such intensive surveillance would last very long, assuming it ever started to begin with. Further, as Arellano was no doubt aware, a convictio n for drug possession does not carry a life sentence, and would not result in Are llano never seeing his daughter again. Appellants’ reliance on two federal cases to show coercion in the detective’s mention of Arellano’s daugh ter is misplaced. In United States v. Tingle (9th Cir. 1981) 658 F.2d 1332, the police officer ’s statement to the suspect was similar to the one in this case, but the suspect’s response was sh aking and crying for ten minutes. ( Id . at p. 1334.) Thus, the suspect clearly took the threat as a real one, and her will was overborne. Nothing similar occurred during Arellano’s in terview. As the trial court found, the statement was not “the kind of pressure where okay, just - - I’ll tell you anything you want to know, just let me go home to my daughter.” In Lynumn v. Illinois (1963) 372 U.S. 528, the suspect “had no previous experience with th e criminal law, and had no reason not to believe that the police had am ple power to carry out their threats.” ( Id . at p. 534.) That was not Arellano’s situation. He had every reason to disbelieve the
detectives. Appellant Guardado also claims that sin ce the interview took place after Arellano
was arrested for a crime comm itted with his brother, it “is highly probable that Detective
Ferreria offered favorable treatment if he were to testify against appellant.” It is not clear12 when the arrest with Arellano’s brother took place, but it does not appear to have been
the arrest that occurred on the same date as the interview. There is no evidence in the record to suggest that detectives offered favorable treatment to Arellano on the arrest with his brother. To the contrary, Arellano wa s asked if the detectives told him that he would get “some sort of legal benefit in any criminal cases or any criminal actions that you might be doing in exchange for this – in exchange for working with them?” Arellano replied, “No.” When asked if he received an y benefits at all from the police, he replied, “I didn’t gain nothing. And I didn’t - - well basically, all I got was just a relocation. That’s all I got. I didn’t get nothing out of it, or I didn’t get something to benefit out of
it.” Appellant Navarrete makes a similar clai m to appellant Guardado’s, arguing that
the interview was coercive because Arellano wa s arrested just before the interview on a drug charge, but the detectives told him during the interview that they were not interested in the drug activity. Appellant claims that “implicit in this statement is a promise of leniency” that Arellano would not be prosecuted for the drug offense if he cooperated.
The detectives’ statements show the opposite. Detective Ferre ria said “[W]e’re not here for dope.” Detective Kellum stated, “We don’t do dope” a nd “We’re not here for dope” and “If he had a pound of dope , I – I could care less.” De tective Kellum also stated, “If he’s selling, dealing, more power to him” and “Unless he’s dead or about to die, I don’t care about what he’s doing.” Detective Kellu m also told Arellano that if he was not honest in his answers, he would “be [there] for four or five hours.” These statements cannot reasonably be understood as promising to forgo drug charges only if appellant agreed to cooperate. 6 Appellants have not met thei r burden of showing that Arellano’s statements to police were coerced or involuntary. Arellano’ s statements were prop erly admitted and did not violate appellant’s federal constitutional rights to due process and a fair trial.

6 Further, the detectives’ statement to Are llano that he would be watched 24/7 and arrested the next time he bought drugs shows th at they were not holding his current drug arrest over his head.13 2. Trial testimony Appellant Navarrete contends Arellano’ s trial testimony was coerced and should not have been admitted. In part, he conten ds the testimony was coerced because parts of his coerced pre-trial statements were played in court. Since his claim that the pre-trial statements were coerced has failed, this re lated contention fails as well. Appellant Navarrete also contends Arellano’s testimony was coerced because he was “challenged” at trial with his interview statements and pl aced in the “untenable position of having to admit lying to the police or sa ying it was the truth” and be cause he was arrested as a
material witness when he refused to testify. 7 He contends the admission of the testimony violated his federal constitutional rights to due process and a fair trial.
“A claim that a witness’s [trial] testimony is coerced . . . cannot prevail simply on grounds that the testimony is the ‘fruit’ of some constitutional transgression against the witness. Instead, the defendant must dem onstrate how such misconduct, if any, has directly impaired the free and voluntary natu re of the anticipated testimony in the trial itself.” ( People v. Boyer, supra , 38 Cal.4th at p. 444.) “‘[D]efendant can prevail on his suppression claim only if he can show that th e trial testimony given by [the third party] was involuntary at the time it was given.’ [Citation.]” ( People v. Badgett, supra , 10 Cal.4th at p. 347.) Appellant Navarrete has cited no cases hol ding that arresting a reluctant witness results in coerced testimony. We see no basi s for holding that the lawful compulsion to testify as a material witness can amount to unconstitutional coercion. 8

7 To the extent that appellant Guardado contends Arellano’s trial testimony was coerced because he was receiving relocatio n payments, we do not agree. Appellant Guardado contends that if Arellano failed to testify against appella nts he would not get any money. In fact, Arellano did attempt to avoid testifying, going so far as to leave during a lunch break. He had to be arrested a nd ordered to return to court to complete his testimony, demonstrating that he was not testifying to get money.

8 We note that Arellano initially refused to testify out of fear of gang retaliation, not fear of the police.14 Appellant Navarrete has also failed to c ite any cases holding that impeachment of a witness with his or her prior statements resu lts in coerced testimony. There is no basis for holding, in effect, that requi ring a witness to take an oath to tell the truth is coercive in situations where the oath requires the witness to admit that he was not truthful in earlier
out of court statements. Importantly, Arellano’s trial testimony was subject to cross-examination and impeachment. These tools, together with ap pellants’ knowledge of the circumstances of Arellano’s police interview, enabled appellant s to challenge the reliability of Arellano’s testimony. (See People v. Douglas, supra , 50 Cal.3d at p. 503.) The jury was then able to assess Arellano’s credibility and reliability. Appellant Navarrete’s claim fails. His federal constitutional rights to due proce ss and a fair trial were not violated.

3. Evidence Code section 1230 The trial court admitted appellant Guardado’s statement to Arellano that appellant Guardado and appellant Navarrete “caught an F-18 slippin’” as a statement against penal interest. (Evid. Code § 1230.) Appellant Navarrete contends the court erred, because that portion of the statement which referred to appellant Navarrete’s involvement was not “specifically disserving” to appellant Guarda do’s penal interest, as required by Evidence
Code section 1230. He further contends the admission of the statement violated his federal constitutional right to due process.

a. Applicable law
“Evidence Code section 1230 provides that the out-o f-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest.” ( People v. Lucas (1995) 12 Cal.4th 415, 462.) The proponent of such evidence “must show th at the declarant is unavailable, that the declaration was against the declarant’s penal in terest when made and that the declaration was sufficiently reliable to warrant admi ssion despite its hearsay character.” ( People v.
Duarte (2000) 24 Cal.4th 603, 610-611.)15 The trial court’s ruling under Evidence Co de section 1230 is reviewed for an abuse of discretion. ( People v. Lawley (2002) 27 Cal.4th 102, 154; People v. Gordon (1990) 50 Cal.3d 1 223, 1250-1253; People v. Arauz (2012) 210 Cal.App.4th 1394, 1400.) The court’s ruling “will not be di sturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ( People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) In considering whether the declaration wa s sufficiently trustworthy, the court may
take into account the words us ed, the circumstances under wh ich they were written, and the declarant’s possible motivation and relationship to the defendant. ( People v. Cudjo (1993) 6 Cal.4th 585, 607.) In this context, the least reliable circumstance is one in
which the declarant has been arrested and tr ies to improve his situation by deflecting responsibility onto others, while the most re liable circumstance is one in which the
statement is made between friends in a non-coercive setting. ( People v. Greenberger (1997) 58 Cal.App.4th 298, 334-335.) Here, appellant Guardado’s statement abou t his own involvemen t in the shooting subjected him to the risk of criminal liability, as it amounted to an admission of murder. Appellant Guardado’s statemen t also implicated appellant Navarrete, but the mere fact that the hearsay declarant’s statement also implicated a nother does not automatically render it unreliable or inadmissible. ( People v. Tran (2013) 215 Cal.Ap p.4th 1207, 1220;

see Arauz, supra , 210 Cal.App.4th at p. 1397 [“Where, as here, an accomplice inculpates
himself and his codefendant to a fellow inmate /informant, his statemen ts, if trustworthy,
are admissible in the codefenda nt’s trial.”].) Howe ver, “[s]pecial attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement’s content is most reliable in that portion which incu lpates the declarant. It is least reliable in that portion which sh ifts responsibility.” ( People v. Greenberger, supra , 58 Cal.App.4th at p. 335.) “Under the rule of [ People v. Leach (1975) 15 Cal.3d 419]
, a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the majo r responsibility on others) doe s not meet the test of16 trustworthiness and is thus in admissible.’ [Citations.]” ( People v. Duarte, supra , 24 Cal.4th at p. 612.) 9 To be admissible as a statement against penal interest, the declarant’s statement must be “truly self-i nculpatory, rather than merely [an] attempt[ ] to shift blame or curry favor.” ( Williamson v. United States (1994) 512 U.S. 594, 603; see Duarte,

supra , at pp. 611-612.) Here, the circumstances all support th e trial court’s finding of reliability. Appellant Guardado made the statement to Arellano, who was either a gang member or an associate. ( People v. Tran, supra , 215 Cal.App.4th at p. 1220 [“the circumstance most indicative of reliability is wher e an incriminating conversati on occurs between friends in a noncoercive setting that fosters uninhibited disclosures”].) Appellant Guardado made
the statement soon after the mu rder, to explain his warning to Arellano that he should be on the alert for attacks by F- 18 gang members. (See People v. Tran, supra , 215 Cal.App.4th at p. 1220 [“the timing and urgenc y of [declarant’s] co nduct further support the reliability of his statement”].) Appellant Navarrete contends appellant Guardado’s statement was not reliable because it “spread the blame” to appellant Navarrete. The question is not whether the declarant “spreads” blame, but whether he attemp ts to “shift” blame, that is, attempts to make another look more guilty and the declaran t less guilty. That appellant Guardado did not do. Nothing in appellant Guardado’s me ntion of appellant Navarrete suggested that appellant Navarrete was more to blame for the murder. The statement suggests equal responsibility for the crime. Appellant Navarrete’s reliance on People v. Lawley
, supra , 27 Cal.4th at p. 102 is misplaced. In that case, the defense wished to offer the de clarant’s statement that he

9 In Leach , our Supreme Court stated that Ev idence Code section 1230 does not apply to “evidence of any stat ement or portion of a stat ement not itself specifically disserving to the interests of the declarant. [Fn.]” ( People v. Leach, supra, 15 Cal.3d at pp. 441-442.) It is from this case that appellant Navarrete derives the “specifically disserving” language that he uses throughout his argument. As th e above-quoted excerpt from Duarte shows, the Leach rule applies to statements in which the declarant attempts to place “major responsibility” on someone else.17 committed the murder and was hired to do so by the Arya n Brotherhood. The court found the identity of the entity which hired the declar ant did not increase his culpability and so was not disserving to the declarant. Here, the statement including appellant Navarrete did have a tendency to be disservi ng to appellant Guardado, as it supported the allegation that the killing was done for the be nefit of a criminal gang within the meaning of section 186.22. Appellant Guardado was a member of the Sur Trece gang and appellant Navarrete was a member of an associated gang or clique, and the victim was a member of a rival gang. Appellant Guardado ’s statement showed that he committed the crime with a fellow gang member, a fact whic h can satisfy one of the requirements of
section 186.22.
The trial court did not abus e its discretion in finding that the statements were admissible as a declaration ag ainst penal interest. (See People v. Arauz, supra , 210 Cal.App.4th at p. 1401.) There was no vi olation of appellant Navarrete’s federal constitutional right to due process.

4. Ineffective assistance of counsel In his interview with police, Canales stated that he was more afraid of appellant Guardado than appellant Navarrete because he had seen appellant Guardado fight with rivals. A recording of Canale s’s statement was played at trial. Appellant Guardado
contends his trial counsel was ineffective in failing to request an instruction telling the jury the evidence could not be considering as showing a bad character or criminal disposition.
Both the Sixth Amendment to the United States Constitutio n and article I, section
15 of the California Constitutio n guarantee defendant the ri ght to the assistance of counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 687.) Appellant has the burden of proving ine ffective assistance of counsel. ( People v. Pope (1979) 23 Cal.3d 412, 425.) In order to es tablish such a claim, appellant must show that his counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s error, a different resu lt would have been reasonably probable.18 ( Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” ( Strickland v. Washington
, supra , 466 U.S. at p. 694.) When an appellant makes an ineffective a ssistance claim on appeal, we look to see if the record contains any explanation for th e challenged aspects of the representation. If the record is silent, then the contention must be rejected “‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation].’” ( People v. Haskett (1990) 52 Cal.3d 210, 248.) Here, the evidence of appellant Guarda do’s fighting was introduced to explain Canales’s fear of appellant Guardado, whic h in turn explained why Canales delayed identifying appellant Guardado. Thus, the eviden ce was relevant. It was not particularly inflammatory. A reasonable attorney could have concluded, as a tactical matter, that the risk of a limiting instruction outweighed any benefit the inst ruction might provide. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1053-1054.)
Since there could be a satisfa ctory explanation for counsel’s failure to request the instruction, the ineffective assistance claim must be rejected on appeal. ( People v. Haskett, supra , 52 Cal.3d at p. 248; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Generally, ineffective assi stance of counsel claims are more appropriately raised in a habeas corpus proceeding. ( People v. Mendoza Tello, supra , 15 Cal.4th at p. 267.)

5. Sufficiency of the evidence Appellant Guardado contends there is insu fficient evidence to show that he aided and abetted the murder, and so insuffici ent evidence to su pport the conviction. 10 He also

10 Appellant Guardado points out the jury found appellant Navarrete personally used a weapon in the commission of th e murder but found as to appellant Guardado only that a principal was armed in the commission of the mu rder. He concludes, reasonably, that the jury convicted him as an aider and abettor.19 contends there is insufficien t evidence to support the finding that he premeditated and deliberated. We do not agree. “In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the wh ole record in the light most favorable to the judgment to determine whether it disclo ses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reas onable doubt. [Citations.] We presume in support of the judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of revi ew applies to cases in which the prosecution relies primarily on circumstantial evidence a nd to special circumstance allegations. [Citation.] [I]f the circumstan ces reasonably justify the ju ry’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility . [Citations.]” ( People v. Nelson (2011) 51 Cal.4th 198, 210 [internal quotation marks omitted].)

a. Aiding and abetting “‘All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.’” ( People v. McCoy (2001) 25 Cal.4th 1111, 1116- 1117, quoting § 31.) Under a direct theory of aiding and abetting, the defendant must know and share the perpetrator’s intent to be found liable. ( Ibid .) “Whether a person has aided and abette d in the commission of a crime is a question of fact, and on appeal all conflicts in the eviden ce and attendant reasonable
inferences are resolved in favor of the judgment. Among the factors which may be considered in determining aiding and abe tting are: presence at the crime scene, companionship, and conduct befo re and after the offense.” ( In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Mere presence at a cr ime scene does not suffice to establish aiding and abetting. ( Ibid .)20 Here, there was ample evidence that appe llant Guardado acted in concert with appellant Navarrete before, during and after the murder. Canales testified that the victim parked across the street from a Sur Trece hangout, at a time when appellants and other Sur Trec e members were present. He saw appellants walk up to the victim’s car together and make a gang challenge just before the fatal gunshot was fired. Medina saw two Hispanic males matching appellants’ descriptions approach the victim’s car. The one wearing a striped shirt—identified by Canales as appellant
Guardado—knocked on the car’s window and made a Sur Trece gang sign at Melendez. After the shooting, Medina saw the man in th e striped shirt receiv e an object from the other’s hand as they ran away. Gang expert de la Riva testified that the shooting was committed in typical gang
fashion because there was one gunman who was su pported by a lookout. His testimony also showed a gang-related motive for the shoot ing on the part of both defendants. The victim was a member of a rival gang and wa s in Sur Trece’s territory. If a Sur Trece member encountered such a situation, he would face penalties from his fellow gang
members if he failed to co nfront the rival. This evidence supports a reasonable infere nce that appellant Guardado assisted in the murder by identifying himself and appellant Navarrete as Sur Trece, serving as a lookout, and taking some object related to the murder, possibly th e murder weapon, from appellant Navarrete after the shooting. Fu rther, in appellant Guardado’s statement to Arellano, appellant Guardado took joint resp onsibility for the killing: “‘We caught a F18 [Fake-18] slipping’”; “we had um, just caught an 18th Streeter slippin’ and yo and what was gonna happen”; “me and Danny caught so me enemy slippin’ a nd you already know what’s gonna happen, so la y low until everythings [sic ] calms down” Appellant Guardado’s statement supports an inference of shared intent to kill. In contrast, there is
no evidence in the record wh ich supports a reasonable infere nce that appellant Guardado was surprised or shocked by appellant Na varrete’s action in shooting Melendez.21 b. Premeditation and deliberation First degree murder requires a finding that the defendant acted willfully, deliberately and with premeditation. (§ 189 .) “Deliberation” refers to the careful weighing of considerations in forming a course of action and “premeditation” means thought over in advance. ( People v. Solomon (2010) 49 Cal.4th 792, 812; People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Prem editation and deliberation can occur in a brief interval. “The test is not time, but reflection. ‘Thoughts may follow each other with great rapidity and cold , calculated judgment may be arrived at quickly.’”’ [Citation.]” ( People v. Solomon, supra , 49 Cal.4th at p. 812.) Deliberation and premeditation may occur within a ve ry short time period, however. ( Ibid .) “The test is not time, but reflection.” ( People v. Bloyd (1987) 43 Cal.3d 333, 348.) There are three common categories of ev idence bearing on the existence of the premeditation and deliberation in the contex t of murder—planning activity, motive, and the manner of killing. ( People v. Perez (1992) 2 Cal. 4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 25–27.) These “factors, while helpful for purposes of review, are not a sine qua non to finding first degree pr emeditated murder, nor are they exclusive.” ( People v. Perez, supra , 2 Cal.4th at p. 1125.) Their purpose “‘was to aid reviewing courts in assessing whether the evidence is s upportive of an inference that the killing was the result of preexisting reflection and weighi ng of considerations rather than mere unconsidered or rash impulse.’” ( People v. Solomon, supra , 49 Cal.4th at p. 812.) Here, appellants were at a gang hang- out with fellow gang members when the victim parked his car across the street from them. They noticed that the victim was unprepared (“slippin’”). They walked up to the victim with a loaded gun and made a gang challenge before shooting. This supports a reasonable inference of planning. The gang expert’s testimony provided evidence of a strong motive for the shooting. The manner of shooting, a close range gunshot to the head of the unarmed victim, shows preexisting reflection. Thus, there is more th an sufficient evidence to support the jury’s finding of premeditation and deliberation.22 6. Cumulative error Appellants contend that even if the errors in this case were not prejudicial when considered individually, they were prejudicial when considered cumulatively. We have found no error, so there is no cumulative effect.

7. Gang enhancement Appellants contend the trial court erre d in imposing a ten year enhancement pursuant to section 186.22, subdivision (b)(1)(C ), then staying it pursuant to section 654. They contend, correctly, that this enhan cement does not apply when a defendant is sentenced to an indeterminate term. Appella nts further contend the enhancement should
be stricken. “Where, as here, a defendant is senten ced to an indeterminate life term for attempted murder, the 15 year-p arole eligibility provision of section 186.22, subdivision (b)(5) applies rather than the 10-year gang enhancement.” ( People v. Arauz, supra , 210 Cal.App.4th at pp. 1404-1405 .) We will order the abstract of judgment corrected accordingly.23 Disposition The ten year enhancement term imposed pursuant to section 186.22, subdivision (b)(1)(C) and then stayed pursuant to section 654 is ordered st ricken. It is to be replaced with a minimum parole elig ibility period of 15 years pursuant to section 186.22, subdivision (b)(5). The judgment of convic tion is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MINK, J. *

We concur:

MOSK, ACTING P. J.

KRIEGLER, J.

* Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.