Does the phrase "the identity of the person who committed the crimes" in Section 10(1) of the California Criminal Code apply to directing a verdict "on the sole basis that appellant's membership in a gang established his identity"?

Herrera contends that the inclusion of the phrase, "[t]he identity of the person who committed the crimes" was tantamount to directing a verdict "on the sole basis that appellant's membership in a gang established his identity in the offenses." There is no reasonable likelihood that the jury improperly applied the instruction as Herrera suggests. (People v. Smithey (1999) 20 Cal.4th 936, 963 ["If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction"].) This limiting instruction informed the jury that it could consider the gang evidence when it determined the question of identity; it did not compel a conclusion of identity if the jury found Herrera to be a gang member. Particularly when read in conjunction with CALCRIM No. 315, which instructed the jury on all the

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