1

Filed 6/3/14 P. v. Mendoza 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

EMMANUEL MATHEW MENDOZA et al.,

Defendants and Appellants.

C071775

(Super. Ct. Nos. 

SF115887A, SF115887B)

A jury found codefendants Emmanuel Mathew Mendoza and Edgar Jose Canseco 

guilty of first degree murder and attempted second degree robbery. With respect to both 

defendants, the jury also sustained firearm and gang enhancement allegations as to each 

offense, and special circumstance allegations that the murder occurred during the 

commission of an attempted robbery. 

The trial court sentenced both defendants to state prison for an indeterminate life 

term without the possibility of parole, consecutive to an eight-year determinate term for 
2

the attempted robbery, one firearm enhancement, and one gang enhancement. (The court 

imposed and stayed the second firearm and gang enhancements.) 

Defendant Canseco asserts that the first degree murder verdict is flawed because 

the instructions allowed for an amalgam of first degree and second degree theories; the 

felony-murder rule and the felony-murder special circumstance should not apply to the 

derivative liability theory of conspiracy; and he cannot be sentenced both for a felony 

murder and the underlying felony. (His codefendant does not join in these claims.) 

Defendant Mendoza (joined by his codefendant) contends the trial court erred in allowing 

an expert to offer the opinions that defendants intended their crimes to benefit a gang and 

committed them with an intent to promote or assist the criminal conduct of members of a 

gang; and there is otherwise insufficient evidence to support either this enhancement or 

the special circumstance finding. We shall affirm the judgments. 

FACTUAL AND PROCEDURAL BACKGROUND

The murder victim, Kevin Prater, his girlfriend, and defendant Canseco had been 

friends since attending a high school in Tracy.1 In September 2010, the girlfriend (who 

had moved out of state) was visiting her local family and the victim. She was the primary 

eyewitness to the crimes. 

A few days before the events underlying the convictions, the three had gone out 

for fast food. During the hour or so that they spent together, the girlfriend did not sense 

anything out of the ordinary about defendant Canseco’s behavior. In the early evening on 

September 15, the girlfriend and the victim were watching television at his mother’s 

home. Defendant Canseco kept trying to call the victim, who at first was ignoring the 

calls. The victim eventually answered and spoke with defendant Canseco, then told the 

 

1 As a gang expert noted off the record, investigators were never able to locate anyone 

who could establish a connection between defendants. 
3

girlfriend that they were going to go pick him up (a courtesy they often offered each 

other).2 

The victim was wearing a large amount of expensive jewelry, including a gold 

watch, diamond earrings, a gold chain, a three-diamond ring, a diamond tennis bracelet, 

and a detachable gold crown cap over his top front teeth. The total estimated value was 

about $3,000. In the car’s console were an imitation Rolex and his mother’s broken gold

nugget tennis bracelet (the estimated value of the latter was $3,495), which she had given 

to him a couple of weeks earlier to get fixed. 

The victim drove to a cul-de-sac west of Tracy Boulevard bordered on the south 

side by train tracks, which were fenced off (although there was an opening cut in the 

fencing), and on the north side by houses. Oleanders grew along the fence. The location 

was not well illuminated. Defendant Canseco was standing in the road near the 

shrubbery. The girlfriend testified that she and the victim had remarked “it looked like he 

on something.” As defendant Canseco was wearing a black hooded sweatshirt over his 

red hat and shirt, getting picked up in the middle of nowhere and looking ill at ease, she 

thought he also looked like he was up to something and being sneaky. 

Defendant Canseco got into the back seat and started texting. The girlfriend 

wanted to go to the grocery store to get a snack, but defendant Canseco asked them first 

to drive to a house on Beechnut Street, which was on the south side of the train tracks 

near Alden Park. This was near the other side of the opening in the fence. Defendant 

Canseco briefly went inside while the others waited. 

 

2 Although not the subject of testimony at trial, the probation report notes that texts 

between the two (contained in an admitted exhibit of defendant Canseco’s cell phone log) 

indicate defendant Canseco was offering to get marijuana for the victim, who could not 

afford it. (Defendant Canseco’s texts automatically concluded with a nickname, “Pelon” 

(meaning “Baldy”). 
4

On his return, they drove to the store, which was less than five minutes away. 

Defendant Canseco continued texting on his phone. The girlfriend went in to get her 

snack. When she came back, defendant Canseco asked them to return to the cul-de-sac 

to get “something” from a friend. When they arrived, defendant Mendoza was standing 

about where defendant Canseco had been. He got in the back seat behind the girlfriend. 

The girlfriend testified that he had looked familiar to her when he got into the car, and 

she thought he may have attended high school with them.3 

Less than a minute later a tall and slender man dressed in dark clothing and 

wearing a mask, suddenly appeared at the driver’s window with a long gun and 

demanded the victim’s property. He was loud and aggressive. The victim turned to 

defendant Canseco and asked angrily if this was “what you on” (the girlfriend 

interpreting his remark for the jury as meaning that he could not believe defendant 

Canseco had set him up). Defendant Canseco did not respond. The victim began tussling 

with the stranger for control of the weapon. Both defendants started trying to restrain 

him from the back seat. The girlfriend was in the process of escaping from the car when 

she heard a single shot, and ducked into some nearby oleander bushes. Both defendants 

and the shooter ran off through the opening in the fence. 

The victim hit the gas pedal with his foot and the car drove off down the cul-desac to Tracy Boulevard, where it crashed. He died from a gunshot wound that appeared 

unremarkable on the surface but resulted in “explosive” internal injuries, indicating it was 

likely a high-velocity bullet fired from a rifle. 

The girlfriend, who had hidden to make sure the other men were gone, ran down 

the street to the car. A police officer who had been patrolling nearby was already there, 

 

3 Other than a couple of communications earlier in the day on September 15, phone 

records for the period from late July to late September 2010 did not list any contacts 

between the two defendants before that day. 
5

arriving a minute after a 911 call at 9:01 p.m. Within minutes, other police officers 

arrived at the scene. The girlfriend told them about the attempted robbery and gave them 

defendant Canseco’s name. She later identified defendant Mendoza in a photographic 

lineup. 

Two residents of the cul-de-sac also testified about their observations that night. 

The details vary somewhat from the girlfriend’s. As the girlfriend’s testimony otherwise 

is substantial evidence of the circumstances of the offenses, we omit a summary of these 

other witnesses because they do not add anything material. 

Defendant Canseco was arrested the following evening when the police stopped a 

car in which he was travelling.4 The police obtained a warrant for defendant Mendoza’s 

arrest a few days later after his identification. He was eventually captured in Cuidad 

Juarez, Mexico, in October 2011. 

As noted above, there was an exhibit of texts to and from defendant Canseco on 

the evening of September 15, 2010. Between 8:00 and 9:00 p.m., in addition to texts 

between the victim and Canseco, there were a number sent between Canseco (area code 

510) and Mendoza (area code 209), and Canseco and a person nicknamed Taz5 (area 

 

4 Although the evidence was not admitted at trial for obvious reasons, the probation 

report notes that during his interrogation after his arrest, defendant Canseco identified 

defendant Mendoza as his accomplice and another person (James Stancampiano) as the 

shooter. The latter was still at large as of the date of the report (July 2012). 

5 Taz apparently obtained the 925 phone from a friend in July 2010. Taz’s mother knew 

defendant Mendoza because he “did music” with Taz on recording equipment in Taz’s 

bedroom; another music-making friend was James Stancampiano. She did not know 

defendant Canseco. A note with Taz’s name and phone number was in defendant 

Canseco’s dresser drawer. Some of the communications from defendant Canseco to his 

brother on the night of the murder were sent from the 925 phone, as well as his 510 

phone. The gang expert was familiar with Taz from previous contacts. The record 

indicates Taz was in custody in an Alameda County jail facility at the time of trial, but 

did not testify. 
6

code 925). In response to Taz’s query, Canseco said he was at a park (Alden) on Palm 

Circle at 8:10 p.m., a street running south from Beechnut Street near the fence opening. 

Taz said he would walk there. At 8:35 p.m., defendant Canseco told Mendoza to start 

walking and told Taz at 8:38 p.m. to act as a lookout. At 8:40 p.m., Canseco told 

Mendoza “he” (i.e., the victim) was trying to leave and that they would be heading to 

Beechnut Street. At 8:43 p.m., Canseco told Mendoza to go down Beechnut away from 

Tracy, and then a minute later told him to go back to the cul-de-sac. Mendoza told 

Canseco to act as if he was picking up a “bag” (presumably of marijuana) from him. At 

8:47 p.m. and 8:48 p.m., Canseco told Mendoza that he would be right back after they 

stopped at the grocery store. (At the same time, the victim sent his final text, asking 

where defendant Canseco was.) At 8:51 p.m., Taz asked if “he” was armed; Canseco 

assured Taz “he” was not, and let Taz know that “he” was wearing a gold crown front 

cap. At 8:54 p.m. and 8:55 p.m., Canseco said they were on the way and told Mendoza to 

be ready. Mendoza asked if Canseco had said he was getting marijuana; Canseco 

answered in the affirmative. Canseco asked Mendoza if he should stay in the car when 

picking up the marijuana or get out. At 8:58 p.m., Mendoza told him to stay in the car, 

and said he was going to be at the corner. As noted, the 911 call occurred at 9:01 p.m.

Defendant Canseco had called his brother later that evening and told him to move 

ammunition from defendant Canseco’s room to the brother’s room, and to leave the front 

door unlocked. The brother knew that the ammunition was for a sawed-off rifle that 

defendant Canseco owned. Defendant Canseco had sent pictures to his girlfriend of 

himself and his brother showing Canseco holding a rifle. In a search of the Canseco 

home on the morning after the shooting, police retrieved the ammunition from the 

brother’s room and a scope in defendant Canseco’s room. These were compatible with 

the model of the rifle he appeared to be holding in the photographs, and a fragment 
7

retrieved from the victim was a base of a bullet of the same size as the ammunition. This 

ammunition usually inflicted wounds similar to the victim’s. 

DISCUSSION

I. Defendant Canseco’s Contentions

A. The Possibility of a Nonunanimous Murder Verdict Was Not Present

The trial court instructed the jury after closing arguments. In the segment of the 

instructions devoted to the charge of murder, the trial court informed the jury that “[t]he 

Defendants have been prosecuted for murder under three theories. And these were 

discussed yesterday. One is malice aforethought. Two, felony murder of the first degree. 

And, three, murder of the second degree. Each theory of murder has different [elements], 

and I will instruct you on all of them . . . . You may not find the Defendants guilty of 

murder unless all of you agree that the People have proved that the Defendants committed 

murder under at least one of these theories. You do not all have to agree on the same 

theory.”6 (Italics added.) Taking up the element of malice necessary to establish murder, 

the trial court instructed that it could be either express or implied, defining both types. 

The court next explained that “[i]f you decide that the Defendants committed murder, you 

must then decide whether it is murder of the first or second degree.” (Italics added.) The 

court continued with the pattern instructions defining the element of premeditation 

necessary for first degree murder. In connection with the lesser offense, the trial court 

instructed that “The requirements for second degree murder based on express or implied 

malice are explained in CALCRIM [No.] 520. . . . The People have the burden of 

proving beyond a reasonable doubt that the killing was first degree murder rather than a 

lesser crime. If the People have not met this burden, you must find the Defendants not 

 

6 Both the prosecutor and defendant Canseco’s trial counsel had made the same point in 

their earlier arguments. 
8

guilty of first degree murder.” The court thereafter instructed on the alternative theory of 

first degree felony murder without malice. 

The court turned to the process of reaching a verdict: “[W]e had everyone here 

talk about first degree murder, and also the lesser offense of second degree murder. . . . 

[Y]ou’ve got verdict forms for first degree murder, verdict forms for second degree 

murder. If you are not satisfied beyond a reasonable doubt that the Defendants are guilty 

of . . . first degree murder and you unanimously so find, you may nevertheless convict 

[them] of the lesser crime of second degree murder, provided you are unanimously 

satisfied beyond a reasonable doubt that [they are] guilty of that crime. Thus, you are to 

determine whether the Defendants are guilty or not guilty of the crime of first degree 

murder or the lesser crime of second degree murder. . . . [T]he Court cannot accept a 

guilty verdict on the lesser crime of second degree murder unless you have unanimously 

found the Defendants not guilty of first degree murder.” (Italics added.) It reiterated, “if 

you find the Defendants guilty of first degree murder, you should not complete the 

verdict form on the corresponding lesser offense of second degree murder . . . . [¶] If 

you find the Defendants not guilty of first degree murder . . . you then need to complete 

the verdict on the . . . included offense[] of second degree murder by determining whether 

the Defendants are guilty or not guilty of that crime.” (Italics added.) 

Defendant Canseco contends the jury could reasonably interpret the trial court’s 

instruction at the outset (“You do not all have to agree on the same theory”), after the 

court had listed three theories that included murder of the second degree, as allowing the 

jury to return a verdict of first degree murder even though some jurors believed him 

guilty only of second degree murder. We reject this strained logic. 

In the first place, defendant Canseco has forfeited this claim because it is based on 

what he perceives as an imprecision in an instruction that is otherwise a correct statement 

of the law, for which he was required to request modification or amplification in the trial 
9

court. (People v. Lee (2011) 51 Cal.4th 620, 638.) We also reject his assertion that trial 

counsel was ineffective for failing to make such a request because trial counsel could 

reasonably have concluded that any modification of the instruction was unnecessary, as 

we will explain. 

Under federal and state law, a defendant must establish the reasonable likelihood

that a reasonable juror would have interpreted an instruction in the claimed erroneous 

manner. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316]; People v. 

Williams (2013) 56 Cal.4th 630, 688.) While it is theoretically possible that the court’s 

remark at the outset of the discussion of the theories of murder may have suggested of itself 

that the three theories are interchangeable, the subsequent instructions defining the theories 

and the process of returning a verdict (and the separate verdict forms for first and second 

degree murder) made it abundantly clear to the jury that the elements of second degree 

murder were not relevant to its deliberations over premeditated first degree murder, because 

it could not return a verdict under a theory of second degree murder until it was 

unanimously convinced that defendants were not guilty of premeditated first degree murder 

(or felony murder, for which malice was not even relevant and no decision was necessary 

on degree). Moreover, even if the instruction has any ambiguity, nothing in the arguments 

of counsel suggested that a verdict of first degree murder could rest on a theory of implied 

malice without premeditation. (Middleton v. McNeil (2004) 541 U.S. 433, 438 

[158 L.Ed.2d 701]; People v. Kelly (1992) 1 Cal.4th 495, 526-527.) Rather, counsel 

referred to the principle of nonunanimous theories to explain why they were discussing both 

of the theories of felony murder and premeditated murder. As a result, we reject this 

argument.7 

 

7 Alternately, defendant Canseco does not give any clear explanation of how he could 

possibly be prejudiced from any ambiguity in this respect, because the jury otherwise 

found unanimously that he was guilty of attempted robbery, during the course of which a 
10

B. Felony-murder Derivative Liability Applies to Conspirators

The trial court instructed the jury that it could find defendant Canseco guilty of 

felony murder either as an aider/abettor or as a conspirator. He now contends conspiracy 

should not be considered a proper basis for derivative liability for felony murder. Based 

on People v. Washington (1965) 62 Cal.2d 777, which declared that the purpose of the 

felony-murder rule is to deter negligent or accidental deaths during a felony, and that the 

rule should be strictly construed (id. at pp. 781, 783), defendant Canseco asserts “pure” 

conspirators—presumably those who otherwise neither aid nor abet the commission of 

the felony—would not have any power to control the manner in which the felony was 

committed, and therefore no purpose is served extending the rule to them.8 

The problem with his argument is the Supreme Court’s unqualified declarations 

that conspiracy, even where not prosecuted as an independent offense, is a proper basis 

for criminal liability for the acts of a coconspirator. (In re Hardy (2007) 41 Cal.4th 977, 

1025 (Hardy); People v. Belmontes (1988) 45 Cal.3d 744, 788.) If there is to be any limit 

on this principle, that court must establish it, not this one. We therefore reject his claim.

C. The Felony-murder Special Circumstance Also Applies to Conspirators

A sentence of life without parole can apply to any person other than the actual 

killer who, with the intent to kill (or as a major participant with reckless indifference to 

 

killing occurred. In light of these findings, the option of second degree murder was not 

rationally open to any juror. His metaphoric rhetoric notwithstanding, we do not discern 

how any error in instructions relating to theories of murder could have had any effect on 

deliberations for the attempted robbery verdict and the special circumstance finding. 

8 The People raise their oft-repeated claim that the failure to object to the instructions on 

this basis in the trial court forfeits the argument. We have endlessly explained that this 

contention ignores Penal Code section 1259 (undesignated statutory references are to this 

code) and controlling Supreme Court precedent, all to no avail. As defendant Canseco 

accurately explains, “the [People] fail[] to discuss . . . section 1259 . . . , which has been 

part of California law . . . for more than a century, [because it] is an irritant the [People] 

prefer[] not to acknowledge.” We therefore will disregard this argument in the present 

case without any further elaboration.
11

life), aids, abets, counsels, commands, induces, solicits, requests, or assists in committing 

a felony murder. (§ 190.2, subds. (c) & (d).) The trial court instructed the jury that this 

special circumstance applied both to those guilty of first degree murder as an aider/abettor 

or as a member of a conspiracy. 

Defendant Canseco asserts that “conspire” is not explicitly included among the 

other terms in these subdivisions, and therefore its inclusion in the pattern jury instruction 

for a special circumstance is unwarranted.9 He points out that one may conspire without 

aiding/abetting, which requires “actual participation in the . . . offense” (People v. 

Malotte (1956) 46 Cal.2d 59, 65-66), and one can aid or abet a crime without having 

conspired to do so (People v. Morante (1999) 20 Cal.4th 403, 433). He also claims that 

section 31, which applies “criminal liability as a principal to those who are not present at 

the commission of an offense” if (with the requisite mental state) they assisted the actual 

perpetrator (Morante, at p. 433), is limited to aiders and abettors, not coconspirators. 

His arguments are untenable. Defendant Canseco does not explain how in general 

a conspirator who is a major participant acting at least with reckless disregard of life 

would not also be aiding and abetting the felony murder even if the statute did not 

contemplate the inclusion of pure conspirators within its reach. He also does not explain 

how his own conduct in particular would present a situation of a pure conspirator. 

Further, his interpretation of section 31was rejected in People v. Mohamed (2011) 

201 Cal.App.4th 515, 523-524, both as a matter of its own independent interpretation of 

the statute (which has not garnered any criticism in the interim) and in reliance on the 

unequivocal statement in Hardy that “[o]ne who conspires with others to commit a felony 

is guilty as a principal,” citing the statute in support. (Hardy, supra, 41 Cal.4th at 

 

9 Again, we simply disregard the People’s claim that defendant Canseco has forfeited 

this argument because he failed to object to the instruction in the trial court.
12

p. 1025.) If unconvinced, defendant Canseco may now address his arguments to the 

Supreme Court; we are neither willing nor able to endorse them.

D. Defendant Canseco Is Properly Punished for Both Offenses

Defendant Canseco contends section 654 precluded the trial court from imposing 

sentence on both offenses. We disagree.

Where a defendant is prosecuted solely on a theory of first degree felony murder, 

section 654 precludes punishment both for the murder and for the underlying felony. 

(E.g., People v. Mulqueen (1970) 9 Cal.App.3d 532, 547.) However, if the prosecution 

rests on the alternative theories of premeditation and felony murder, and there is evidence 

supporting an implicit finding that the murder was premeditated, then the trial court may 

properly impose additional punishment for the felony as well. (People v. Osband (1996) 

13 Cal.4th 622, 730-731.)

Defendant notes that the prosecutor argued felony murder was “just so applicable 

. . . that you really don’t even have to get into those other [theories].”10 However, the 

prosecutor also argued that the killing could have been premeditated based on the fact 

that a rifle was superfluous where the shooter and defendants outnumbered the victim. 

(The prosecutor also argued that if for some reason the jury did not find that there was an 

attempted robbery, the conduct was still sufficient to establish implied malice for a 

verdict of second degree murder.) In any event, it is not the prosecutor’s arguments or 

what the jury found that is controlling. As we emphasized in People v. McCoy (2012) 

208 Cal.App.4th 1333, our focus is on the trial court’s explicit or implicit finding that has 

substantial evidence in support (McCoy, at p. 1338), which can be independent of the 

facts or theories underlying the jury’s verdict in the absence of some circumstance 

 

10 Defendant Canseco’s trial counsel, by comparison, ridiculed the presence of any 

premeditation as speculation or an intent to rob a longtime friend, and instead argued that 

“the most just verdict” would be second degree murder premised on implied malice. 
13

foreclosing its sentencing discretion (id. at p. 1340). It may be that the shooting was an 

accident in the midst of an intended robbery, but the trial court could also properly infer 

that the shooter’s intent to kill arose out of the frustration of being confronted with a 

resisting victim who was seeking to gain control of the rifle, or out of a desire to send a 

message to future victims of the gang’s willingness to kill a resisting robbery victim. 

Therefore, the trial court could properly impose additional punishment for the attempted 

robbery. 

II. Joint Contentions

A. Sufficient Evidence Supports the Gang Enhancement

In another challenge defendants argue the evidence is insufficient to support the 

gang enhancements of their determinate sentences in two respects. They claim it does not 

establish that the offenses are gang related because it does not demonstrate any benefit to 

a gang. They also assert the trial court improperly allowed the gang expert to express an 

opinion that they (as opposed to a hypothetical person) committed the crimes for the 

benefit of or in association with a gang and possessed the necessary specific intent to 

promote or assist the criminal conduct of gang members. 

1. Pertinent evidence.

Defendant Canseco had told his brother that he was a member of a particular gang 

(identifying the umbrella entity under which various subsets operated). The brother had 

seen defendant Canseco customarily wearing the color associated with the umbrella 

entity, and authenticated photographs in which he and his brother were displaying the 

entity’s insignia. 

On his arrest, defendant Canseco asserted his affiliation with the umbrella gang 

entity. Defendant Mendoza had the entity’s insignia tattooed on his elbow and chest. 

Defendant Canseco had an insignia of the entity tattooed on his hand. 
14

The gang expert reviewed pictures from defendant Canseco’s camera. In his 

opinion, these showed defendant Canseco and others displaying insignia of the umbrella 

entity and particular subsets based in Oakland and Tracy. Based on these photographs, 

self-admittance, his attire, his hand tattoo, and field contacts and reports, the expert 

believed defendant Canseco was a member of the Oakland subset. Based on tattoos on 

defendant Mendoza and personal contacts with him dating back several years, the expert 

believed defendant Mendoza was a member of a Tracy subset of the umbrella entity 

associated with the Alden Park area. The expert also offered the opinion that the shooter 

was a member of the same Tracy subset, although he did not provide the jury with the 

basis for this opinion11 beyond the fact that the offenses were committed in a coordinated 

fashion—which indicated the offense was for gang purposes12—with two other gang 

members. Gang members also make heavy use of text messaging. The Tracy gang 

subsets are known to shoot people for their jewelry and removable gold crown caps. As 

far as the expert was aware, the victim did not have any local gang associations. The 

expert did not make any investigation of whether the victim had any gang associations in 

Oakland where he lived part-time with his father (and had a tattoo referencing that area). 

The expert believed the robbery and shooting were committed for the benefit of 

a gang. He based this opinion on defendant Canseco’s commission of the crimes while 

attired in the color of the umbrella gang entity, which would contribute to the fearsome 

 

11 This was pursuant to an agreement to exclude evidence that the expert was aware 

defendant Canseco had identified James Stancampiano as the shooter, who was otherwise 

associated with defendant Mendoza (and therefore defendant Canseco’s statement could 

incriminate defendant Mendoza “because of guilt by association”). We thus reject 

defendant Mendoza’s argument that this opinion should be disregarded for want of a 

factual basis. 

12 He believed the robbery was for gang purposes even without any announcement of 

gang affiliation during the commission, because “more and more these days . . . they are 

trying to conceal their identity.” 
15

reputation of the local subset. In addition, even under the isolated circumstances of these 

offenses, “word of mouth spreads like fire” through the gang demimonde “and they know 

who is who.” He admitted that not every crime a gang member commits is for the benefit 

of the gang. 

At the conclusion of the expert’s direct examination, the prosecutor asked, “So is 

your opinion that . . . Edgar Canseco committed . . . this crime for the benefit of . . . or in 

association with a criminal street gang?” The expert answered, “Yes, I do” and gave the 

same answer with respect to defendant Mendoza. The prosecutor then asked, “And is it 

your opinion that Edgar Canseco intended to assist . . . or promote criminal conduct by 

gang members?” The expert again answered in the affirmative, with the same answer 

regarding defendant Mendoza.13 

2. Sufficiency of evidence.

As is pertinent here, the first element of a gang enhancement requires proof that a 

defendant committed an offense for the “benefit” of a street gang or “in association with” 

a street gang. (§ 186.22, subd. (b)(1).) “Not every crime committed by gang members is 

related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) However, 

proof of benefit to a gang can be in the form of expert opinion that the commission of an 

offense enhances the gang’s reputation for viciousness, which is sufficient to raise the 

inference of benefit. (Albillar, at p. 63.) If there is substantial evidence that multiple 

defendants “came together as gang members” in the commission of an offense, rather 

than “ ‘on a frolic and detour unrelated to the gang,’ ” this is proof “that they committed 

these crimes in association with the gang.” (Id. at p. 62.) The joint commission of an 

offense is sufficient to infer that the gang members are acting together qua gang members 

 

13 The court and the parties were under the impression that an unspecified recent case 

(the trial took place in June 2012) permitted the prosecutor to frame the questions in this 

manner. 
16

in the absence of evidence to the contrary. (People v. Morales (2003) 112 Cal.App.4th 

1176, 1198 (Morales).) Proof of such association is sufficient to support the gang 

enhancement even in the absence of proof of tangible or reputational benefit to a gang. 

(Ibid.)

Defendants assert the prosecutor relied solely on proof of benefit to a street gang, 

without any citation to the record identifying where the prosecutor supposedly made any 

such election. However, the instructions refer to both criteria; accordingly, our review of 

the evidence is not confined in the manner defendants suggest. 

Defendants argue the prosecution did not establish that there would have been any 

financial benefit to the gang from the commission of a robbery. They acknowledge that 

the expert indeed testified that the commission of the crimes would nonetheless benefit 

the gang because this would enhance its vicious reputation. They contend, however, that 

the robbery as planned would not have communicated the gang’s involvement (or their 

status as gang members involved in the crime), because bystanders were not present14

and none of the participants communicated any gang involvement during the crimes. 

They ignore the expert’s opinion that word of mouth would nonetheless have quickly and 

effectively communicated the gang’s involvement to the gang and its rivals, even if the 

general population or police might not have known.

Furthermore, they ignore (until defendant Mendoza’s reply brief) the evidence of 

the alternate criterion of committing the crime in association with gang members. This 

forfeits the argument. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, 

fn. 7.) It is thus sufficient for us to note that the extensive coordination of the attempted 

robbery with other identified members of the umbrella entity is sufficient to establish this 

 

14 There was at least one bystander—the victim’s girlfriend. 
17

criterion.15 It is untrue, as defendants argue, this would result in the imposition of the 

enhancement as a matter of law whenever gang members jointly commit a crime. A jury 

must first be convinced to draw this inference (as opposed to the alternative inference that 

the gang members were acting on a lark) before sustaining the enhancement.

3. The opinion testimony.

Also at issue here is another element of the gang enhancement, which requires 

proof of a specific intent to promote or assist the criminal conduct of gang members, as 

opposed to the gang itself. (Albillar, supra, 51 Cal.4th at p. 67; Morales, supra, 

112 Cal.App.4th at p. 1198; § 186.22, subd. (b)(1).) Again, substantial evidence of the 

joint commission of an offense with other known gang members is sufficient of itself to 

supply an inference of specific intent to promote or assist other gang members, in the 

absence of evidence to the contrary. (Albillar, at p. 68; People v. Villalobos (2006) 

145 Cal.App.4th 310, 322 [cited with approval in Albillar, at pp. 65-66].)

Defendants contend the prosecutor was not permitted to ask the expert whether 

they (as opposed to a hypothetical person based on the facts of the case) satisfied the two 

criteria for the gang enhancement. They recognize that their trial counsel failed to object 

either to the prosecutor’s questions or to the answers of the expert witness. Defendant 

Canseco asserts (with the concurrence of defendant Mendoza) that this lapse was an 

instance of prejudicial ineffective assistance of counsel. 

 

15 In his reply brief, defendant Mendoza mentions in passing that defendant Canseco 

was a member of a different subgroup of the umbrella entity than defendant Mendoza or 

the shooter without further developing the point. As this argument is forfeited, we simply 

observe that we have previously noted it is sufficient for a prosecutor to prove the goals 

and identifying characteristics of an umbrella entity without further identifying the 

particular subsets where there is an absence of any evidence that the subgroups have 

divergent goals or activities. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1357.) 
18

We agree that the prosecutor improperly framed the question. The People do not 

attempt to defend the propriety of the questions. People v. Vang (2011) 52 Cal.4th 1038, 

1047-1048, specifically held that an opinion premised on hypothetical questions based 

closely on the particular evidence at trial are permissible, whereas questioning whether a 

particular defendant satisfied the criteria for the gang enhancement is prohibited because 

it does not assist the jury on the question of guilt. (Accord, People v. Gonzalez (2006) 

38 Cal.4th 932, 946-947 & fn. 3.) We cannot determine on what other controlling 

authority to the contrary the trial court and the parties apparently relied. 

However, we also agree with the People that the error was harmless. Defendants 

argue the evidence was otherwise insufficient to support the enhancement. However, we 

have already identified the substantial evidence in support of the first criterion other than 

the opinion. The commission of the offense in concert with other gang members is also 

sufficient evidence of itself to establish an inference of the intent to promote or assist 

criminal conduct of gang members. Defendant Canseco also suggests (in a scant couple 

of sentences) that the improper expert opinion could have affected the jury’s evaluation 

of his status as an aider/abettor of the underlying offenses. He does not explain, however, 

how the verdicts might have been any different in the absence of the expert opinion, or 

establish that the opinion essentially directed a verdict on the enhancement, given that the 

jury received the customary instruction that it was not bound to accept expert opinions. 

(People v. Prince (2007) 40 Cal.4th 1179, 1227.) We thus reject his claim of prejudice. 

(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) 

B. Sufficient Evidence Supports the Special Circumstance Finding

Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140] analyzed whether the 

Eighth Amendment’s proscription against a punishment disproportionate to the crime 

committed (id. at p. 788) prevented “imposition of the death penalty on one . . . who aids 

and abets a felony in the course of which a murder is committed by others but who does 
19

not . . . kill, attempt to kill, or intend that a killing take place or [that there will be the use 

of] lethal force . . . .” (Enmund, at p. 797.) It concluded a death sentence for felony 

murder simpliciter without any proof of a culpable mental state was unconstitutional. 

(Id. at p. 788; see Tison v. Arizona (1987) 481 U.S. 137, 147 [95 L.Ed.2d 127] (Tison).) 

Tison later limited the rule in Enmund to the status of constitutional subflooring. Tison

held that an actual intent to kill is unnecessary; a death sentence is proportionate in a 

felony murder if there is proof of the overlapping criteria that a defendant substantially 

participated in the crime resulting in the death, and had a reckless indifference to human 

life that is “implicit in knowingly engaging in criminal activities known to carry a grave 

risk of death” as a “natural, though also not inevitable . . . result.” (Tison, supra, 

481 U.S. at pp. 157-158 & fn. 12.) Tison explicitly eschewed any “attempt to precisely 

delineate the particular types of conduct” that constitute a reckless indifference to human 

life. (Id. at p. 158.) This reasoning in connection with the penalty of death is equally 

applicable to a sentence of life without parole. (People v. Estrada (1995) 11 Cal.4th 568, 

575-576.) 

Asserting that as planned the robbery presented little likelihood that the victim

would resist or that bystanders would interfere or summon the police, and thus there was 

a “minimum risk of the situation escalating,” defendants argue there is consequently 

insufficient evidence that they should have been subjectively aware of a grave risk of 

death. They also contend the evidence does not establish an actual intent to kill on their 

part. (They do not dispute the sufficiency of the evidence of their major participation in 

the attempted robbery.) We conclude a reasonable trier of fact could find on the present 

record that defendants were recklessly indifferent to human life (People v. Johnson

(1980) 26 Cal.3d 557, 575-578) even if that is not the only finding possible on the 

evidence. As a result, we do not need to consider the scant evidence that the People 
20

marshal in support of an implied finding that defendants themselves intended to kill the 

victim while leaving the girlfriend alive. 

We have previously rejected the suggestion that staging a robbery in a secluded 

area decreases the risk of violence. (People v. Lopez (2011) 198 Cal.App.4th 1106, 

1118.) Whether or not defendant Mendoza was aware that the shooter would be using a 

rifle in the robbery, he participated in the robbery and fled the scene after the victim was 

shot without any attempt at coming to the victim’s aid. This is sufficient of itself to 

establish reckless indifference to human life, because a grave risk of death arose during 

the commission of the robbery despite any purported planning to the contrary. (People v. 

Smith (2005) 135 Cal.App.4th 914, 927-928; People v. Hodgson (2003) 111 Cal.App.4th 

566, 580 & fn. 34, citing Tison.) As for defendant Canseco, the claim of insufficient 

evidence is ludicrous. Not only did he participate in planning the robbery, the evidence 

supports an inference that he supplied the rifle to the shooter, he lured the victim to the 

isolated location, he participated in the robbery, and he also fled the scene without 

offering any aid to the victim. That he may not have intended the shooting of the victim 

is irrelevant. (Lopez, supra, 198 Cal.App.4th at p. 1117; People v. Proby (1998) 

60 Cal.App.4th 922, 930; People v. Mora (1995) 39 Cal.App.4th 607, 612, 617.) We 

therefore reject this argument. 

DISPOSITION

The judgments are affirmed.

 BUTZ , J.

We concur:

 BLEASE , Acting P. J.

 MURRAY , J.