1

Filed 9/03/09 P. v. Amante CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

PETER JAMES AMANTE et al.,

Defendants and Appellants.

A113655

(Sonoma County

Super. Ct. No. SCR32760)

Defendants Peter James Amante, Rogelio Javier Cardenas, Patrick George

Higuera, Jr., and Rico Ricardo Lopez were tried together and convicted of first degree

murder in connection with the stabbing death of Ignacio Gomez. (Pen. Code, §§ 187,

subd. (a), 189.)1 The jury also found that each defendant intentionally killed the victim

while an active participant in a criminal street gang and that the murder was carried out to

further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), and that the murder

was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).

Defendants raise a variety of procedural and substantive issues on appeal. We

accept respondent‟s concession that the trial court imposed an unauthorized consecutive

10-year term on Cardenas for the gang enhancement, and we order that his abstract of

judgment be corrected accordingly. In all other respects, we affirm.

1 All statutory references are to the Penal Code unless otherwise specified.

2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

We summarize the underlying facts, viewing the evidence as a whole and in the

light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.)

On the night of June 26, 2002, defendants2 were hanging out at defendant Amante‟s

apartment on Stony Point Road in Santa Rosa, where he lived with his fiancée Kacee

Dragoman and their small child. Defendants were all members of the Norteño street

gang. Amante‟s mother, her boyfriend, Dragoman, Lindsey Ortiz (Amante‟s teenaged

cousin, who lived in a nearby apartment),3 and Amante‟s and Dragoman‟s young son also

were present at the apartment. Defendants were drinking beer, playing cards, and

watching television. Amante‟s mother and her boyfriend eventually went upstairs to bed.

Dragoman and defendant Ochoa were talking on a patio outside the living room

around midnight, when people heard whistles coming from outside the apartment.

According to various witnesses, including the prosecution‟s expert witness on criminal

street gangs, members of the Sureño gang and other Mexican nationals use a particular

whistle to identify themselves. Dragoman testified that when she heard the whistle, “It

was a bad sign. It‟s a rival gang whistle.” Ochoa reported that he heard the whistle

coming from the other side of a fence that separated the apartment from Santa Rosa

Creek and that there were “Scraps” (a derogatory term for a member of the rival Sureño

gang) in the area. At the time, members of the Norteño and Sureño gangs had rival

claims to the area by the creek near Stony Point Road. Ochoa also whistled. Defendants

2 Defendants were tried along with Mario Ochoa-Gonzales (Ochoa), who was acquitted

of murder but convicted of being an accessory after the fact (§ 32). Ochoa did not appeal

his conviction. All references to “defendants” are to all five men tried for murder (i.e.,

defendants and Ochoa).

3 Dragoman and Ortiz testified at trial under grants of immunity.

3

ran quickly to the kitchen, opened drawers,4 then left the apartment; Dragoman and Ortiz

followed.

On a nearby bridge on Stony Point Road in a parked car were Rebecca Sandoval

(Rebecca) and her small child and stepchild; her husband Miguel Sandoval (Miguel) was

outside the car speaking with his father. Miguel had seen his friend Ignacio Gomez (who

he knew only as “Jose,” another name Gomez went by) riding his bicycle on the bridge.

Gomez lived with his fiancée in a nearby homeless camp, where he bought and sold

methamphetamine and heroin. According to Gomez‟s fiancée, Gomez was not a gang

member, but his friends were associated with the Sureño gang, and he typically wore blue

clothing, which was associated with the Sureño gang. Jose, Miguel, and Miguel‟s father

whistled to each other on the bridge and greeted one another.

Rebecca testified that she “heard people jumping a fence,” and shortly thereafter

she saw Ochoa (who she recognized from a youth center) and someone else head toward

the bridge she was on. They were followed about a minute or a minute and a half later by

Higuera (an acquaintance of Rebecca‟s) and another man she did not recognize. As the

four men crossed the bridge, one of them said, “ „What‟s up‟ ” to Miguel, and another

said “ „Norte.‟ ” The four crossed the bridge, then three of them went down a bike path

under the bridge; Ochoa stayed back.

Dragoman and Ortiz, who were the last to leave Amante‟s apartment, walked

down a path and found Amante (who was wearing a red 49ers jersey) stuck by his pants

leg on the fence separating him from the creek. Ortiz described Amante as drunk. While

Dragoman and Ortiz were loosening Amante‟s pants from the fence so that he could get

down, a large butcher knife fell from Amante‟s pocket.

4 Ortiz heard drawers opening, silverware sliding, and metal banging when defendants

went to the kitchen; however, neither she nor Dragoman was in the room or saw what

defendants took from the kitchen. Amante was later seen with a butcher knife.

Dragoman saw Lopez after the murder with the handle of a knife from her knife set.

Field evidence technicians discovered two pieces of metal, apparently from a broken

knife blade, within 10 to 15 feet of the victim‟s body.

4

After Amante was freed from the fence, he picked up the knife he had dropped and

ran to the people near the car parked on the bridge on Stony Point Road; Amante was

holding the knife as if he were going to stab someone. Dragoman and Ortiz left the

apartment complex through another route and met up with Amante at the bridge. Amante

spoke to the people in the parked car, then dropped the knife he was holding. Dragoman

testified that she believed Amante picked up the knife and put it in his pants. Amante

crossed the bridge (which was illuminated by street lights), then ran down the path to the

creek where the three other defendants had gone. Ortiz followed him but at first could

not see anything because it was so dark. Dragoman testified that she saw Amante walk

down, meet up with Higuera, Cardenas, Ochoa, and Lopez, then walk back up to the

bridge 30 seconds later.

Miguel testified he saw five males and two females on the night of the murder.

One of the men asked Miguel if he “bang[ed] Norte,” and Miguel answered that he was

just talking to his father. Miguel interpreted the question about banging Norte as “he just

wanted problems. But at that time, I mean, I‟m not a gangster, so, you know, I just told

him I don‟t bang nothing.” Miguel saw a black handle in the pocket of the man who

asked if he banged Norte, but he did not know whether it was a knife.

Miguel testified that Gomez rode his bicycle down a path under the bridge.

Miguel testified that “that‟s when I heard they stop him, they stop Jose, and that‟s when

I—when that happened.” When the men stopped Jose, Miguel heard one of them ask

Jose whether he was a Sureño. He testified that he heard people hitting Gomez and

calling him “a lot of bad words,” and he heard Gomez yelling “help” and screaming.

Miguel saw three men (the person who asked if he “bang[ed] Norte” and two others)

hitting Gomez, and he saw one of the men stabbing Gomez with a knife. During the

attack, a man wearing a red 49ers jersey over a tank top approached Miguel, dropped a

knife on the ground in front of Miguel‟s car, then picked it up and ran toward the other

men. Miguel testified that the man “went all the way to with the other guys where Jose

was and the other guy, one of the girls was telling him to stop. And that‟s when my

friend Jose, I heard he was not screaming no more. That‟s when the other guy and the

5

other two girls came with him to see what happened.” He also testified that “the first

time I thought it was just fighting, but when the guy—the other guy came running and he

dropped a knife, I know something was happening because he was yelling, and after that

he just—he was so quiet.” After the man who dropped the knife started running to catch

the other guys, “[t]hey were all fighting. And that‟s when the other guy and the two girls

came all together. That‟s when—when there was no noise. And that‟s when I heard the

bike fall on the floor.”

Gomez suffered 38 to 40 stab wounds on his head, face, chest, back, and

shoulders; he died from multiple wounds to the torso after being stabbed in the heart and

lungs. It could not be determined whether one or more stabbing instrument was used. A

forensic pathologist opined that one person could have inflicted all of the stab wounds in

less than a minute, and that the victim lived only a couple of minutes after he was stabbed

in the heart.

Approximately five minutes after Ortiz had started down the path, Ortiz saw

Ochoa (who was not armed) coming up the path. He was followed by Cardenas and

Lopez, who ran up the path toward Ortiz. Lopez had blood on his black and white

Raiders jersey; Ortiz did not see a knife on him. Ortiz did not see blood on Cardenas, and

she never saw him with a knife. Ortiz continued down the path, and eventually saw

Amante and Higuera. Amante was running; Higuera‟s arm was cut, and he was acting as

if he were in pain.

After defendants came up from the creek, they returned to Amante‟s and

Dragoman‟s apartment. As they were walking back across the bridge, Ortiz and

defendants lifted their shirts up toward their heads after Ortiz saw a police car and

directed the others to hide their faces. Rebecca and Miguel drove to a nearby

convenience store so that Rebecca could call 911, because it was obvious to her that

“something happened.”5

5 In response to the 911 call, a Santa Rosa police officer went to the bridge and looked

down the bike path with a flashlight but did not see anyone under the bridge. Police did

not find the victim‟s body until later that morning.

6

When the group returned to Amante‟s apartment, five members of the Norteño

gang joined them. Lopez told Amante that “this was for Cinco de Mayo,”6 talked about

“eating people,” then put on a blue beanie hat with “Sur” written on it that he had not

been wearing when he left the apartment. Dragoman testified that Lopez “was kind of

like bragging like walking around with a little strut, stuff like that, kind of like a larger

than life moment for him or something.” Ortiz testified that after Lopez made the remark

about Cinco de Mayo, “Pete, he said—I think he said, „What the fuck are you talking

about?‟ And then Rico [Lopez] said something after that and then everyone just got

quiet.” Ochoa paced nervously, said he was concerned about police being at the creek,

and commented, “ „I don‟t think that guy was a Scrap.‟ ” Ochoa flushed a black handle

from Dragoman‟s knife set down the toilet. Higuera was on the telephone, had a t-shirt

wrapped around his right arm and was applying pressure to it, and appeared to be in a

rush to leave. Lopez had blood on his shoes. Ortiz and Dragoman helped wash Lopez‟s

and Ochoa‟s clothing.

Police found the victim the next morning near a bike path on the north side of the

creek. When police found the victim, his pants were pulled down below his waist. He

was wearing blue clothing consistent with what Sureño gang members wear. Police

found Sureño and Norteño gang graffiti in the area near where Gomez was found. Some

Norteño graffiti had been written over Sureño graffiti, a “ „crossout‟ ” that was “a huge

form of disrespect in the gang world,” according to the prosecution‟s gang expert. As

discussed more fully below, the expert also testified that it was his opinion that

defendants were active members of the Norteño street gang at the time of the murder, and

that such a murder would be committed for the benefit of the gang because killing a rival

6 Amante had been hospitalized after being stabbed twice on Cinco de Mayo, less than

two months before Gomez‟s murder. Amante told a Santa Rosa police officer who

stopped him for a traffic violation the night after the murder that he had almost died after

the stabbing. Amante told the officer that he had seen graffiti on a fence on Stony Point

Road that said “ „Whacky [Amante‟s nickname] die slowly,‟ ” and that he believed he

was a “marked man.”

7

gang member would show the gang‟s power and instill fear of the gang in the

community.

On the night of June 28, Detective Leslie Vanderpool returned to the bridge with

Miguel, who directed the officer to the apartment where Amante lived. Miguel later

identified Amante (in a photographic lineup) as one of the people who stabbed the victim.

Defendants were charged in a first consolidated information with murder (§ 187,

subd. (a)—count 1), with a special circumstance that they intentionally killed the victim

while they were active participants in a criminal street gang, and that the crime was

carried out to further the activities of the gang (§ 190.2, subd. (a)(22)). The information

also included an enhancement, alleging that defendants committed the crime for the

benefit of a street gang (§ 186.22, subd. (b)(1)).7

The jury found Amante, Cardenas, Higuera, and Lopez guilty as charged and

found the gang allegations true. Amante, Higuera, and Lopez were sentenced to prison

for life without the possibility of parole.8 Cardenas was sentenced to 25 years to life for

7 We hereafter sometimes refer to the gang enhancement and special circumstance

collectively as the “gang allegations.”

8 As to Amante and Lopez, the court apparently sentenced the defendants pursuant to

section 190.2, subdivision (a)(22), which provides a sentence of life without the

possibility of parole. The trial court did not address the gang allegations when sentencing

Amante and Lopez; although their abstracts of judgment list the allegations as being tied

to their murder convictions, the abstracts do not specify whether sentence was stayed or

imposed on the allegations. The trial court may have intended to stay the gang

enhancement (§ 186.22, subd. (b)(1)) for Amante and Lopez, as the probation department

recommended in those defendants‟ presentence reports. Higuera‟s counsel requested at

Higuera‟s sentencing hearing that the trial court strike the “life without parole

enhancement” (presumably, a reference to § 190.2, subd. (a)(22)); however, the trial

court imposed that sentence. The court did not, however, specifically address either of

the gang allegations at the sentencing hearing. Higuera‟s abstract of judgment lists the

gang allegations but does not specify whether sentence was stayed or imposed on them.

8

murder pursuant to section 190.5, subdivision (b),9 with 10 years for the gang

enhancement (§ 186.22, subd. (b)(1); see post, § II.H), for a total of 35 years to life.

Defendants Amante, Cardenas, Higuera, and Lopez timely appealed.

II.

DISCUSSION

Defendants raise a number of issues related to their murder convictions, the gang

allegations that were found true, and several other procedural and substantive issues.10

We have elected to address the issues raised by the various defendants in an order

different from the briefing in this case, grouping issues relating to general subjects, such

as the gang allegations, together. We begin by addressing the first degree murder

convictions.

A. Issues Relating to Murder Convictions.

1. Theories of liability—background

Defendants were prosecuted for first degree murder under three theories of

liability.11

We first summarize the three theories of liability, then address the jury

instructions regarding and the evidence supporting the convictions pursuant to those

theories.

9 The statute provides that a defendant found guilty of first degree murder who was

between 16 and 18 years old at the time of the crime shall be sentenced to life without the

possibility of parole or, at the discretion of the trial court, to 25 years to life. Cardenas‟s

abstract of judgment reflects that the special circumstance (§ 190.2, subd. (a)(22)) was

stayed.

10 With the exception of a sentencing error specific to defendant Cardenas, Amante raises

all of the issues in this appeal. The other defendants join in many of Amante‟s arguments

(Cal. Rules of Court, rule 8.200(a)(5)), either with no further comment or with the

addition of arguments specific to them.

11 The jury verdict forms indicate that the jury found defendants guilty of first degree

murder; the forms do not indicate the theory of liability upon which jurors relied, i.e.,

whether the jury concluded that a particular defendant was an actual perpetrator or

whether he aided and abetted first degree murder.

9

a. Actual perpetrators

The prosecutor contended that jurors could find any defendant who was found to

have actually stabbed the victim guilty of murder. Murder is the unlawful killing of

another with malice aforethought. (§ 187, subd. (a).) First degree murder is murder

which is committed with willfulness, deliberation, and premeditation. (§ 189.)

“ „ “Deliberation” refers to careful weighing of considerations in forming a course of

action; “premeditation” means thought over in advance. [Citations.]‟ ”12

(People v.

Young (2005) 34 Cal.4th 1149, 1182.) During his closing argument, the prosecutor

emphasized (without objection) that jurors did not need to decide who actually stabbed

the victim in order to convict defendants of first degree murder, and that in the alternative

they could rely on one of two aiding and abetting theories.

b. Accomplice liability

i. Straight accomplice liability

The prosecutor argued that the jury could convict any defendant who was found to

have aided and abetted the murder of the victim. “ „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.‟ (§ 31.)

Accordingly, an aider and abettor „shares the guilt of the actual perpetrator.‟ (People v.

Prettyman [(1996)] 14 Cal.4th [248,] 259.)” (People v. Mendoza (1998) 18 Cal.4th 1114,

1122 (Mendoza).) “A person aids and abets the commission of a crime when he or she,

(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or

purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act

or advice, aids, promotes, encourages or instigates the commission of the crime.”

(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “The mental state necessary for

conviction as an aider and abettor is knowledge of the perpetrator‟s criminal purpose and

the intent or purpose of committing, encouraging, or facilitating the commission of the

target offense.” (Mendoza, supra, at p. 1118, original italics.)

12

The jury was instructed only upon deliberate and premeditated first degree murder.

10

To be found guilty of murder under a straight aiding and abetting theory, “the

aider and abettor must know and share the murderous intent of the actual perpetrator.”

(People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) However, “[a]bsent some

circumstances negating malice one cannot knowingly and intentionally help another

commit an unlawful killing without acting with malice.” (Id. at p. 1123.) In other words,

if a defendant knows the perpetrator intends to commit murder and intends to aid in that

criminal act, the aider and abettor necessarily intends to kill.

ii. Natural and probable consequences doctrine

The third theory advanced by the prosecutor was that jurors could convict a

defendant if he was found to have aided and abetted one of five “target crimes” (breach

of peace, assault, battery, assault with a deadly weapon, or assault by means of force

likely to produce great bodily injury), and that first degree murder was a natural and

probable consequence of the target crime. “A person who knowingly aids and abets

criminal conduct is guilty of not only the intended crime but also of any other crime the

perpetrator actually commits that is a natural and probable consequence of the intended

crime. The latter question is not whether the aider and abettor actually foresaw the

additional crime, but whether, judged objectively, it was reasonably foreseeable.

[Citation.]” (Mendoza, supra, 18 Cal.4th at p. 1133, original italics.) For a defendant to

be convicted under the natural and probable consequences doctrine, “the trier of fact must

find that the defendant, acting with (1) knowledge of the unlawful purpose of the

perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the

commission of a predicate or target offense; (3) by act or advice aided, promoted,

encouraged or instigated the commission of the target crime. But the trier of fact must

also find that (4) the defendant‟s confederate committed an offense other than the target

crime; and (5) the offense committed by the confederate was a natural and probable

consequence of the target crime that the defendant aided and abetted.” (People v.

Prettyman, supra, 14 Cal.4th at p. 262, original italics, fn. omitted.) Aider and abettor

liability “is a question of legal causation which is independent of any intent that the result

in question occurred. [Citation.] Thus, the ultimate factual question is whether the

11

perpetrator‟s criminal act, upon which the aider and abettor‟s derivative criminal liability

is based, was „ “reasonably foreseeable” ‟ or the probable and natural consequence of a

criminal act encouraged or facilitated by the aider and abettor. [Citation.]” (People v.

Francisco (1994) 22 Cal.App.4th 1180, 1190 [upholding first degree murder

conviction].)

In order to convict a defendant under the natural and probable consequences

doctrine, “the jury first must determine the crimes and degrees of crimes originally

contemplated and committed, if any, by the perpetrator. Next, the jury must decide

whether the aider and abettor knew of the perpetrator‟s intent to commit the originally

contemplated criminal acts and whether the aider and abettor intended to encourage or

facilitate the commission of those acts. In other words, the jury must determine if the

aider and abettor is liable vicariously for, i.e., guilty of, the crime or crimes originally

contemplated. Then the jury must determine whether other crimes and degrees of crimes

charged against the aider and abettor were committed by the perpetrator. If so, the jury

must determine whether those crimes, although not necessarily contemplated at the

outset, were reasonably foreseeable consequences of the original criminal acts

encouraged or facilitated by the aider and abettor. [Citations.] In other words, the jury

must determine if the aider and abettor is liable vicariously for, i.e., guilty of, other

crimes beyond those contemplated originally.” (People v. Woods (1992) 8 Cal.App.4th

1570, 1586.)

2. Jury instructions on accomplice liability

Defendants challenge the way in which the jury was instructed regarding straight

aiding and abetting and regarding the natural and probable consequences doctrine, and

the way in which the trial court responded to a question related to the natural and

probable consequences doctrine. On appeal, we determine de novo whether a jury

instruction correctly states the law, applying our independent judgment. (People v. Posey

(2004) 32 Cal.4th 193, 218; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We

consider the instructions given as a whole, not in isolation. (People v. Ramos, supra, at

12

p. 1088.) We assume that the jurors are intelligent people capable of understanding and

correlating all the jury instructions that are given. (Ibid.; People v. Ayers (2005)

125 Cal.App.4th 988, 997.)

a. Background

Defendants objected below to the standard jury instruction regarding the natural

and probable consequences doctrine (CALJIC No. 3.02)13

on various grounds. Higuera‟s

counsel objected that there was no discussion in the proposed jury instructions regarding

how the jury was supposed to address premeditation and deliberation when considering

whether defendants were guilty of murder under an aiding and abetting theory.

Cardenas‟s counsel requested that CALJIC No. 3.02 be modified so that jurors could be

asked specifically to determine whether a defendant committed first or second degree

murder when considering whether he was guilty under the natural and probable

13

The standard instruction provides: “One who aids and abets [another] in the

commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is

also guilty of any other crime committed by a principal which is a natural and probable

consequence of the crime[s] originally aided and abetted. [¶] In order to find the

defendant guilty of the crime[s] of ____, [under this theory,] [as charged in Count[s]

____,] you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime [or crimes]

of ____ [was] [were] committed; [¶] 2. That the defendant aided and abetted [that]

[those] crime[s]; [¶] 3. That a co-principal in that crime committed the crime[s] of ____;

and [¶] 4. The crime[s] of ____ [was] [were] a natural and probable consequence of the

commission of the crime[s] of ____. [¶] [In determining whether a consequence is

„natural and probable,‟ you must apply an objective test, based not on what the defendant

actually intended, but on what a person of reasonable and ordinary prudence would have

expected likely to occur. The issue is to be decided in light of all of the circumstances

surrounding the incident. A „natural‟ consequence is one which is within the normal

range of outcomes that may be reasonably expected to occur if nothing unusual has

intervened. „Probable‟ means likely to happen.] [¶] [You are not required to

unanimously agree as to which originally contemplated crime the defendant aided and

abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree

that the defendant aided and abetted the commission of an identified and defined target

crime and that the crime of (charged crime) was a natural and probable consequence of

the commission of that target crime.]”

13

consequences doctrine.14

The trial court apparently did not rule on Cardenas‟s proposed

instruction, which was not given to the jury.

The jury instead was instructed with CALJIC No. 3.02 (ante, fn. 13), which was

modified to list five target crimes (breach of peace, assault, battery, assault with a deadly

weapon, and assault by means of force likely to produce great bodily injury); the

nontarget crime was identified as “murder, as charged in Count One,” without specifying

a degree. The jury also was instructed with CALJIC Nos. 3.00 (principals—defined) and

3.01 (aiding and abetting—defined). Jurors were further instructed on the definition of

murder (CALJIC No. 8.10), the concept of malice aforethought (CALJIC No. 8.11), and

the requirement that first degree murder must be deliberate and premeditated (CALJIC

No. 8.20). The jury also was instructed on the elements required to prove the lesser

included offenses of second degree murder (CALJIC Nos. 8.30, 8.31) and voluntary

manslaughter (CALJIC Nos. 8.37, 8.40).15

14

The proposed instruction provided: “If you determine beyond a reasonable doubt that

the defendant aided and abetted a _____, and that the killing was a natural and probable

consequence of _____, you must then further determine whether the killing was murder

and if so, what degree? To find that the murder is first degree, you must make the

following determinations: [¶] 1. The actual killer committed the first degree murder

under the definitions supplied in the other instructions defining first degree murder.

[¶] 2. The circumstances which make the murder first degree as to the actual killer were a

natural and probable consequence of the commission of the _____ rather than the

independent product of the actual killer. (or) [¶] [3]. The killer‟s formulation of the

enhanced mental state necessary for the first degree murder, as opposed to a simple intent

to kill, was a natural and probable consequence of the commission of the _____ rather

than the independent product of the mind of the killer. [¶] If you have a reasonable doubt

whether the offense committed was first degree murder or second degree murder, you

must give the defendant the benefit of the doubt and find him guilty of second degree

murder.”

15 “ „Second degree murder is the unlawful killing of a human being with malice, but

without the additional elements (i.e., willfulness, premeditation, and deliberation) that

would support a conviction of first degree murder. [Citations.]‟ [Citation.]” (People v.

Chun (2009) 45 Cal.4th 1172, 1181; §§ 187, subd. (a), 189.) Voluntary manslaughter is

the unlawful killing of another either with an intent to kill, or with conscious disregard

for human life. (§ 192, subd. (a).)

14

During deliberations, the jury sent the trial court the following note: “We are

having difficulties with the sentence [from CALJIC No. 8.20 (deliberate and

premeditated murder):] „To constitute a deliberate and premeditated killing, the slayer

must weigh and consider the question of killing and the reasons for and against such a

choice and, having in mind the consequences, he decides to and does kill[,‟] versus

deliberated and premeditated breach of peace or assault that results in a killing. [¶] We

need more clarification of premeditation and deliberation and how to relate it to section

[presumably, CALJIC No.] 3.02 [the instruction regarding the natural and probable

consequences doctrine].”

Following a lengthy discussion with the prosecutor and defendants‟ attorneys, the

trial court sent the following response to the jury: “The term „deliberate and premeditate‟

refers only to First Degree Murder. First Degree Murder is defined by jury instruction

8.20. [¶] The term „deliberate and premeditate‟ is not an element of any of the following:

Breach of the Peace, Assault, Battery, Assault by Means of Force likely to Produce Great

Bodily Injury, or Assault with a Deadly Weapon. Those crimes are defined elsewhere in

the Court‟s instructions: [¶] Breach of the Peace is defined in jury instruction 16.260.

[¶] Assault is defined in jury instruction 9.00. [¶] Battery is defined in jury instruction

16.140. [¶] Assault by Means of Force likely to produce Great Bodily Injury is defined

in jury instruction 9.02. [¶] Assault with a Deadly Weapon is defined in jury instruction

9.02. [¶] Jury instruction 3.02 may refer to First Degree Murder, Second Degree Murder

or Voluntary Manslaughter, depending upon what you determine the facts to be. Those

crimes are defined elsewhere in the court‟s instructions. [¶] If this response does not

address your concern, please submit a further request.” The jury did not request any

further clarification of jury instructions.

b. Straight aiding and abetting instructions

Relying on McCoy, supra, 25 Cal.4th 1111, defendants argue that the “instruction

given on aiding and abetting” failed to convey the principle that an aider and abettor

15

cannot be convicted based on the mental state of the perpetrator.16

(Id. at p. 1122.)

Although defendants direct us to no specific aiding and abetting jury instruction that was

deficient, we presume (based on a passing reference in Amante‟s brief) that they refer to

CALJIC No. 3.00 (principals—defined), which states that each principal, regardless of

the extent or manner of participation in a crime, is “equally guilty.” No objection was

raised below to the language in this standard instruction, and any objection to it is

therefore waived. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163

(Samaniego).)

Even assuming that the objection was not waived, it lacks merit. We note that the

evidence required to prove the mental states that defendants protest they may not have

possessed—premeditation, deliberation, and malice aforethought—does not, under the

circumstances, require more than is required to prove aiding and abetting. It is virtually

impossible for an aider and abettor to know of a perpetrator‟s intent to commit murder

and to decide to aid in the accomplishment of that crime, without at least a brief period of

deliberation and premeditation. A calculated judgment may be arrived at quickly.

(People v. Hughes (2002) 27 Cal.4th 287, 371; Samaniego, supra, 172 Cal.App.4th at

p. 1166.)

Amante directs this court to a recent Second District Court of Appeal opinion that

is critical of the portion of CALCRIM No. 400 which states (as does CALJIC No. 3.00)

that one is “equally guilty” of a crime regardless of whether one personally commits the

offense (the actual perpetrator), or merely aids and abets its commission. The court

concluded that the instruction was potentially misleading, as it did not inform the jury

that an aider and abettor can be guilty of a lesser crime than the actual perpetrator.

16

The McCoy decision cautions that the rule that an aider and abettor‟s mental state must

be at least that required of the direct perpetrator does not apply if the aider and abettor‟s

guilt is predicated on the natural and probable consequences doctrine. (McCoy, supra,

25 Cal.4th at pp. 1117-1118, 1122.)

16

(Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165.)17

Samaniego appears to have

considered the “equally guilty” language in isolation from the other jury instructions

given to the jury. The “equally guilty” language in CALJIC No. 3.00 sets out the basic,

introductory principle that both actual perpetrators and those who merely aid and abet the

commission of a crime are deemed to be principals under California law. (§ 31.) This

language does not state that the actual perpetrator and the one who aids and abets the

commission of the crime must be found guilty of the same offense, nor would a juror

reasonably so interpret it, especially in light of other instructions given here.

In the present case, the trial court adequately explained the legal requirements for

being found guilty as an aider and abettor. When CALJIC Nos. 3.00 and 3.01 are

viewed together with the other jury instructions given in this case defining the required

mental states for the various charged offenses, we are satisfied that the aiding and

abetting instructions meet the intent requirement of McCoy, supra, 25 Cal.4th at p. 1111.

These instructions required that the defendant (1) knew that the perpetrator intended to

commit murder, second degree murder, or voluntary manslaughter and (2) intended to aid

and abet the perpetrator in the commission of those offenses.

Even if the “equally guilty” language could have led to confusion on a straight

aiding and abetting theory, we conclude, as the court did in Samaniego, that any error

was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,

24; Samaniego, supra, 172 Cal.App.4th at p. 1165.) The court in Samaniego concluded

that the jury necessarily found that the appellants acted willfully with intent to kill,

because they were instructed regarding a multiple-murder special circumstance (§ 190.2,

subd. (a)(3)), which was found true. (Samaniego, supra, at pp. 1153, 1165.) That

instruction provided that if the defendant was not the actual killer, the People had the

burden of proving beyond a reasonable doubt that he acted with the intent to kill for the

special circumstance to be true. (Id. at p. 1165.) Similarly here, the jury was instructed

17

Samaniego, supra, 172 Cal.App.4th 1148 was filed after briefing was completed in this

case. Amante wrote a letter to this court directing us to the decision, without any

supporting argument.

17

that in order to find the gang special circumstance (§ 190.2, subd. (a)(22)) true if a

defendant was not an actual killer, it had to find that the defendant “with the intent to kill

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor

in the commission of the murder in the first degree.” (CALJIC No. 8.80.1, italics added.)

The jury necessarily found that defendants acted with the requisite mental states for

purposes of aiding and abetting.18

(Samaniego, supra, at pp. 1165-1166.)

c. Natural and probable consequences doctrine instructions

Defendants argue that the “bare-bones CALJIC instructions used here to describe

the natural and probable consequences doctrine were erroneous in several respects.”

Amante focuses on the fact that the jury was not specifically instructed that it could find

him guilty of a lesser offense than first degree murder under the natural and probable

consequences doctrine. This case is distinguishable from People v. Woods, supra,

8 Cal.App.4th 1570, upon which Amante relies. In Woods, two defendants (Barry

Dewayne Woods and John Windham) were convicted of first degree murder after they

both assaulted two victims to coerce them into telling defendants where someone was

located. (Id. at pp. 1577, 1579.) Woods later shot and killed another victim outside a

nearby apartment complex, resulting in his conviction of first degree murder. (Ibid.)

Windham was prosecuted under the theory that the first degree murder was a reasonably

foreseeable consequence of the assaults in which he had participated, and that he was

therefore liable as an aider and abettor for the first degree murder committed by Woods.

(Id. at p. 1579.) The court reversed Windham‟s conviction, concluding that the trial court

erred when, in response to a question from the jury during deliberations, it informed

jurors that they could not convict Windham of second degree murder as an aider and

abettor if they determined that Woods (the perpetrator of the killing) was guilty of first

degree murder. Even though the perpetrator in fact committed first degree murder, it was

18

Amante discounts the significance of the special circumstance instruction, arguing that

it simply assumes the commission of first degree murder, without explaining how to

determine the degree of murder that was committed. However, those principles were

adequately set forth elsewhere in the instructions, as we discuss in the next section.

18

possible that only second degree murder was reasonably foreseeable under the natural

and probable consequences doctrine. (Id. at pp. 1577, 1579.) The court concluded that

“in determining aider and abettor liability for crimes of the perpetrator beyond the act

originally contemplated, the jury must be permitted to consider uncharged, necessarily

included offenses where the facts would support a determination that the greater crime

was not a reasonably foreseeable consequence but the lesser offense was such a

consequence. Otherwise, . . . the jury would be given an unwarranted, all-or-nothing

choice for aider and abettor liability.” (Id. at p. 1588.)

The jury here was given no such impermissible all-or-nothing choice. It was

instructed on the definitions of first degree murder (CALJIC No. 8.20), second degree

murder (CALJIC Nos. 8.30, 8.31), and voluntary manslaughter (CALJIC Nos. 8.37,

8.40). Unlike in Woods, supra, 8 Cal.App.4th 1570, the jurors were not told that they

could not convict an aider and abettor of a lesser crime than the actual perpetrator. To the

contrary, they were specifically told, in response to the question they submitted during

deliberations, that “[j]ury instruction 3.02 may refer to First Degree Murder, Second

Degree Murder or Voluntary Manslaughter, depending upon what you determine the

facts to be.” (Italics added.)

That is not to say, however, that defendants were entitled to instructions on three

additional lesser offenses (“heat of passion,”19

“unreasonable self-defense voluntary

19

An unlawful killing may constitute voluntary manslaughter in the absence of an intent

to kill where the killer, in the heat of passion, intends to cause serious bodily injury short

of death or to endanger another‟s life by very reckless conduct. (§ 192, subd. (a);

People v. Lasko (2000) 23 Cal.4th 101, 110-111.) Lopez (joined by Higuera and Ochoa,

but not Amante or Cardenas) requested below that CALJIC No. 8.42 (sudden quarrel or

heat of passion and provocation explained) be given, arguing that the victim‟s gang

whistles before the attack on him amounted to provocation. The trial court declined to

give the instruction, stating that it was “not seeing that there‟s any evidence to give that

instruction at all.” (People v. Cole (2004) 33 Cal.4th 1158, 1215 [no duty to instruct on

lesser offense upon request unless substantial evidence supports instruction].)

19

manslaughter,”20

and “involuntary manslaughter”21

) that Amante claims on appeal were

reasonably foreseeable under the natural and probable consequences doctrine. The

Woods court emphasized that “the trial court need not instruct on a particular necessarily

included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty

of something beyond that lesser offense, i.e., if the evidence establishes that a greater

offense was a reasonably foreseeable consequence of the criminal act originally

contemplated, and no evidence suggests otherwise.” (People v. Woods, supra,

8 Cal.App.4th at p. 1578, italics added; see also People v. Waidla (2000) 22 Cal.4th 690,

733 [trial court has sua sponte duty to instruct on uncharged lesser included offense only

if evidence presented would, if accepted, absolve defendant from guilt of the greater

offense but not the lesser].) Moreover, under the natural and probable consequences

doctrine, the jury must determine what crime the perpetrator actually committed.

(People v. Prettyman, supra, 14 Cal.4th at p. 268 [jury must determine whether offense

“actually committed” was natural and probable consequence of crime defendant aided

and abetted]; People v. Caesar (2008) 167 Cal.App.4th 1050, 1058 [jury must make

finding as to crime committed by confederate in applying natural and probable

consequences doctrine]; People v. Woods, supra, at p. 1586.)

20

“[W]hen a defendant, acting with a conscious disregard for life, unintentionally kills in

unreasonable self-defense, the killing is voluntary . . . manslaughter.” (People v.

Blakeley (2000) 23 Cal.4th 82, 91.) No defendant requested below that the instruction be

given.

21 Involuntary manslaughter occurs “in the commission of an unlawful act, not amounting

to felony; or in the commission of a lawful act which might produce death, in an unlawful

manner, or without due caution and circumspection.” (§ 192, subd. (b).) Lopez (joined

by all other defendants) requested below that the jury be instructed on the definition of

involuntary manslaughter (CALJIC No. 8.45), stating that if the prosecution could argue

that first degree murder was the natural and probable consequence of the target crime of

breach of peace (§ 415), involuntary manslaughter likewise was a natural and probable

consequence of that target offense. The trial court concluded that the evidence did not

support an involuntary manslaughter instruction, and it declined to give one. (People v.

Cole, supra, 33 Cal.4th at p. 1215.)

20

No evidence suggests that any of the three offenses Amante cites on appeal was a

reasonably foreseeable consequence of the act originally contemplated, or that the lesser

offenses were actually committed by the perpetrator. (People v. Woods, supra,

8 Cal.App.4th at p. 1578; People v. Prettyman, supra, 14 Cal.4th at p. 268.) A

reasonably foreseeable consequence of gang members arming themselves with knives to

go to an area claimed by a rival gang after hearing a whistle from that gang was the

commission of first degree, deliberate, and premeditated murder. There is no evidence

that the unprovoked stabbing of a stranger more than 40 times, under those

circumstances, amounted to one of the lesser offenses identified by Amante. The trial

court did not err in failing to instruct on additional nontarget offenses.

Amante also argues that the trial court failed to instruct jurors regarding how to

determine which degree of murder was foreseeable under the natural and probable

consequences doctrine. In fact, the trial court instructed the jury on their duty to

determine whether any murder conviction was of the first or second degree (CALJIC

No. 8.70), their obligation to return a verdict of second degree murder if they could not

unanimously agree whether first or second degree murder was committed (CALJIC

No. 8.71), their obligation to return a verdict of manslaughter if they could not

unanimously agree whether murder or manslaughter was committed (CALJIC No. 8.72),

their obligation to unanimously agree as to whether a defendant was guilty of first degree

murder or the lesser offenses of second degree murder or voluntary manslaughter

(CALJIC No. 8.74), and their duty “to determine whether the defendant is guilty or not

guilty of murder in the first degree or of any lesser crime thereto” (CALJIC No. 8.75,

italics added).

Even assuming, for the purposes of Amante‟s argument, that the jury instructions

were deficient in not specifically informing jurors of their obligation to select the degree

of murder for purposes of the natural and probable consequences doctrine, any ambiguity

regarding this issue was cured by the clarification provided by the trial court in response

to the jury‟s question. “If a jury instruction is ambiguous, we inquire whether there is a

reasonable likelihood that the jury misunderstood and misapplied the instruction.

21

[Citations.] „ “ „[T]he correctness of jury instructions is to be determined from the entire

charge of the court, not from a consideration of parts of an instruction or from a

particular instruction.‟ ” [Citations.]‟ [Citation.]” (People v. Smithey (1999) 20 Cal.4th

936, 963-964, italics added.) Here, the trial court informed the jury, in response to its

question, that “[j]ury instruction 3.02 may refer to First Degree Murder, Second Degree

Murder or Voluntary Manslaughter, depending upon what you determine the facts to be.”

(Italics added.) The italicized portion of the clarification made clear that jurors could

consider lesser offenses under the natural and probable consequences doctrine, and that

they were obligated to make a determination of the degree of homicide. Having reviewed

the entire charge to the jury, we conclude that there was no reasonable likelihood that the

jury misunderstood or misapplied the instructions. (Ibid.)

Amante next argues that the trial court erred by not instructing the jury that “the

objective foreseeability determination is (1) to be based upon a reasonable person in the

defendant’s position and (2) may [sic] only consider those facts known to the defendant.”

(Original italics.) As the authorities upon which Amante relies make clear, the test in

determining liability under the natural and probable consequences doctrine is whether a

reasonable person under like circumstances would view the crime as reasonably

foreseeable, a determination to be made in light of all the circumstances surrounding the

incident. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Woods, supra,

8 Cal.App.4th at p. 1587.) CALJIC No. 3.02—which provides that jurors “must apply an

objective test, based not on what the defendant actually intended, but on what a person of

reasonable and ordinary prudence would have expected likely to occur,” a determination

22

to be made “in light of all of the circumstances surrounding the incident”—adequately

communicated these principles.22

In sum, we find no reversible error regarding the natural and probable

consequences jury instructions.

d. Response to jury‟s question

In a related argument, defendants claim that the trial court‟s “unbalanced and

flatly incomplete” response to the jury‟s question quoted above (ante, § II.A.2.a)

amounted to reversible error. The trial court “has a primary duty to help the jury

understand the legal principles it is asked to apply.” (People v. Beardslee (1991)

53 Cal.3d 68, 97 [trial court erred in refusing to further explain jury instructions in

response to request from jurors during deliberations]; § 1138 [information requested

regarding point of law “must be given”].) “[I]f jury instructions are important in general,

there is no category of instructional error more prejudicial than when the trial judge

makes a mistake in responding to a jury‟s inquiry during deliberations.” (People v.

Thompkins (1987) 195 Cal.App.3d 244, 252-253.) No such mistake was made here.

Amante argues that the trial court‟s response failed to “explain how jurors should

make the degree determination for non-killers.” We first observe that the jury did not ask

how to make such a “degree determination.” Instead, the jury‟s question focused on

whether jurors had to find that a defendant deliberated and premeditated the target crimes

under the natural and probable consequences doctrine. The trial court first told the jury

that deliberation and premeditation were not elements of any of the target crimes, and

then further clarified that CALJIC No. 3.02 (liability of an aider and abettor under the

22

A recent decision from the Third District, People v. Hart (2009)176 Cal.App.4th 662,

reversed an attempted murder conviction that was based on the natural and probable

consequences doctrine. Relying upon its prior decision in People v. Woods, supra, 8

Cal.App.4th 1570, the court held that the jury must be instructed that an aider and abettor

may be convicted of attempted unpremeditated murder under the natural and probable

consequences doctrine even though the actual perpetrator is convicted of attempted

premeditated murder, if under the facts of the case a reasonable jury could so conclude.

For the reasons set forth above, this recent decision does not impact our conclusion under

the particular facts presented here.

23

natural and probable consequences doctrine) could refer to liability for first degree

murder, second degree murder, or voluntary manslaughter, “depending upon what you

determine the facts to be,” a response that (when read in conjunction with other jury

instructions) made clear that the jury was obligated to make a degree determination.

The trial court‟s response to the jury‟s question stated that if the response did not

address jurors‟ concerns, to “please submit a further request.” The jury did not provide

any further questions. “[A] jury is presumed to understand a judge‟s answer to its

question.” (Weeks v. Angelone (2000) 528 U.S. 225, 234.) We reject the argument that

the trial court erred in responding to the jury‟s question here.

3. Substantial evidence supports murder convictions23

In evaluating whether a conviction is supported by the evidence, we determine

whether the trier of fact could rationally find defendants guilty beyond a reasonable

doubt. We must view the evidence in the light most favorable to the prosecution and

must presume in support of the judgment the existence of every fact that the jury could

reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

“Our inquiry on appeal „in light of the whole record [is] whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.‟

[Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez), original italics,

overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)

a. Evidence that defendants were “actual” killers

Amante, Cardenas, and Higuera argue that there was insufficient evidence to

prove that they were “actual killer[s].” As respondent acknowledges, the evidence did

not conclusively establish whether each defendant actually stabbed Gomez. However,

23

Higuera simply joins in Amante‟s argument that there was insufficient evidence to

support his murder conviction, without specifically addressing the evidence implicating

him in Gomez‟s murder, and he did not file a reply brief. We therefore do not address in

detail below the specific evidence presented as to him. Suffice it to say, however, that a

review of the entire record reveals sufficient evidence to support Higuera‟s first degree

murder conviction. Lopez does not challenge the sufficiency of the evidence of his

murder conviction.

24

there was evidence that Amante, Cardenas, and Higuera participated in the attack.

Miguel testified that one of the five men he saw the night of the murder (identified

repeatedly as Ochoa) stayed on the bridge.24

As for the others, “they were all just

punching. You couldn‟t see like one of them. One of them after each time you see him,

you know, and hit him once and then another one second hit him again. They were all at

the same. Like you couldn‟t see there was just—I couldn‟t see who—I‟m not sure if one

of them hit him and the other one not hit him. [¶] Just the first time when Jose was right

there with the two guys, the three guys, that‟s when they started hitting him. And that‟s

when the girl, she said „stop,‟ and the fifth guy came and dropped a knife next to my car

and went all the way over by—he didn‟t help him or—he—he just—he went there.”

Miguel also identified Amante in a photographic lineup as being “one of the ones

stabbing the victim.”25

Because there was substantial evidence that Amante, Cardenas, and Higuera

participated in the attack on the victim, sufficient evidence supports their first degree

24

At one point during Miguel‟s testimony, however, he apparently identified Higuera as

the person who stood near the bridge during the attack.

25 During trial, Amante‟s attorney spoke in chambers with the trial court and

codefendants‟ counsel (but not defendants) about a conversation he had had with the

prosecutor. According to Amante‟s counsel, the prosecutor had told him that if Amante

testified at trial (which he did not ultimately do), the prosecutor “would be prepared to

cross-examine him in accordance with the—his theory of the case, which, as I understand

it, is that my client was not the stabber and that in fact . . . it was not that he was not

liable for the crime but that he would be pursued, as I took it to be, on an aiding an[d]

abetting theory.” Amante‟s counsel raised the issue because he felt that he was under a

duty to disclose it to codefendants‟ counsel. The prosecutor clarified that “I think

[Amante‟s counsel] described his interpretation of my comments. He took it a certain

way, meaning that he wouldn‟t be cross-examined as if he were the actual stabber. But I

don‟t think that was actually said. I think what was said was that I would cross-examine

him consistent with my belief, my theory as to what actually occurred in this case and

that a reasonable inference would be what [Amante‟s counsel] has stated.” In an

apparent reference to this conversation, Amante argues that the prosecutor “clearly did

not believe” the theory that Amante was an actual stabber, and even “offered to negotiate

it away if [defendant] testified.” Substantial evidence supports Amante‟s conviction, and

the fact that the prosecutor might have focused on a particular theory during cross-

examination had Amante taken the stand does not alter our conclusion.

25

murder convictions as actual perpetrators, even though there was no conclusive evidence

as to which defendant delivered the fatal blow(s). (People v. Federico (1981)

127 Cal.App.3d 20, 37 [substantial evidence supported murder conviction in trial of two

defendants where evidence showed that either one or both men were actual perpetrators].)

Even if the issue of who delivered the fatal blow to the victim was not conclusively

resolved by the evidence, we agree with respondent that the evidence as to Amante,

Cardenas, and Higuera was sufficient to support their convictions under either a straight

aiding and abetting theory, or under the natural and probable consequences doctrine.

(People v. Jenkins (2000) 22 Cal.4th 900, 1025-1026 [jury may convict defendant of

murder where evidence supports finding that defendant was either perpetrator or aider

and abettor].)

b. Evidence that defendants aided and abetted murder (straight

aiding and abetting liability)

As for a straight aiding and abetting theory, there was evidence that defendants,

who were active in the Norteño street gang, armed themselves with knives after hearing

what they believed to be Sureño whistles coming from a nearby creek, and then

participated in an unprovoked attack that ended with the victim dying of up to 40 stab

wounds. It was virtually undisputed that Amante armed himself with a large butcher

knife before leaving his apartment to head toward the creek.

Amante argues that there was no substantial evidence that he harbored specific

intent to kill for purposes of straight aiding and abetting, because he “did not even have a

chance to form discrete intent to assault a specific person” before he arrived at the murder

scene. Amante‟s argument is based primarily upon an assumption that the evidence

conclusively shows that the victim was killed before Amante arrived at the murder scene,

and that the evidence demonstrates instead that he simply “went down the path to see

what happened afterwards.” Although it was virtually undisputed that Amante arrived at

the bridge last (apparently because his pants got stuck on a fence), and there was

conflicting evidence about how long he was present at the murder scene before

defendants left the area, we disagree with Amante‟s characterization of the evidence as

26

showing that he necessarily arrived at the murder scene after the victim had been killed.

Miguel gave somewhat conflicting testimony on this point. At one point he testified,

“But the third person, when he came last, he just dropped a knife and started going

toward them. But at that time when it was—it was kind of over. It was like—it was

over. That‟s when the girl started to say stop. And they all got—the girls got the guys

and the other guy too. They all got together right there. And that‟s when they all left

right then. They all left pretty fast. [¶] But the fifth person never took the time—he was

never there when they were hitting Jose. But when he came back and he was walking

next to my car with the other guys and the girls, he had blood on his shirt. That’s why I

thought he did something.” (Italics added.) In response to the prosecutor‟s next question,

Miguel testified that he saw the person who came across the bridge last go down to where

the victim was. When asked to describe what the man did at the scene, Miguel testified,

“I never—I never saw him like do—they were all—they were all just punching. You

couldn‟t see like one of them. One of them after each time you see him, you know, and

hit him once and then another one second hit him again. They were all the same. Like

you couldn‟t see there was just—I couldn‟t see how—I‟m not sure if one of them hit him

and the other one not hit him. [¶] Just the first time when Jose was right there with the

two guys, the three guys, that‟s when they started hitting him. And that‟s when the girl,

she said „stop,‟ and the fifth guy came and dropped a knife next to my car and went all

the way over by—he didn‟t help him or—he—he just—he went there.” (Italics added.)

Miguel later testified that because he saw the person in the red jersey with blood

on his shirt, he thought the person in the jersey “really stabbed him. But me—after then,

me and my wife got talking, we were just mentioned that when he came last, everybody

came so fast. So I don‟t know if he really went and do something really fast. But it was

really fast because everybody came back too fast toward the apartment when I left.”

Miguel also testified that at first there was just fighting, but when he saw the man who

dropped a knife (presumably, Amante), “I know something was happening because he

was yelling, and after that he just—he [the victim] was so quiet.” Although Miguel‟s

27

testimony arguably could have been more clear, the jury could reasonably have

concluded that Amante made it to the scene and participated in the attack on the victim.

Ortiz testified that she walked down the bike path to investigate what was going

on. She saw defendants (she could not remember exactly who) run up the path toward

her, but she did not see Amante at first. Amante and Higuera were the last two people to

come up, according to Ortiz. A forensic pathologist testified that the victim‟s stab

wounds could have been inflicted in less than one minute. A reasonable jury could infer

that Amante was down the path long enough to participate in the murder, if only to assist

the others. The fact that he did so as an active gang member when he heard what he

believed to be the whistle of a rival gang in disputed territory was sufficient to show that

he intended to aid and abet the murder of the victim. In short, there was sufficient

evidence to show (under an aiding and abetting theory) that Amante had knowledge of

the killer‟s or killers‟ unlawful purpose, and that he had the intent to encourage or bring

about the target offense of murder. (Mendoza, supra, 18 Cal.4th at p. 1123.)

Amante also argues that “it is quite unfair to assume the worst intent merely

because [he] armed himself when he accompanied the others outside,” and that “[n]ot

every case of gang arming (with kitchen knives) for a potential confrontation is a plan to

kill.” (Original italics.) In an apparent reference to the fact that he had been stabbed on

Cinco de Mayo less than two months before the murder, Amante argues (without citation

to the record) that arming himself under the circumstances was reasonable, especially if

he intended only to “investigate” or “run someone off.” Assuming that it was even

possible to draw competing inferences about Amante‟s intent from evidence that he

armed himself with a large butcher knife in response to hearing an apparent rival gang

whistle outside his apartment, rushing to the area where the whistle was coming from,

and heading down the path even after he was delayed at a fence (and thus had time to

change his mind about heading to the creek armed with a knife), the inference to be

drawn was for the jury to determine. A more reasonable inference, supported by the

record, was that Amante (and other defendants) were motivated in part to kill as revenge

for the Cinco de Mayo stabbing of Amante. We will not set aside the jury‟s verdict

28

where a rational jury could convict Amante of first degree murder under an aiding and

abetting theory. (Sanchez, supra, 12 Cal.4th at pp. 31-32.)

This inference is especially appropriate in light of the fact that the jury found true

the allegation (as to all four defendants) that the murder met the requirements of the

gang-murder special circumstance. (§ 190.2, subd. (a)(22).) Section 190.2,

subdivision (a)(22) provides that the jury may find the special circumstance true where

“[t]he defendant intentionally killed the victim while the defendant was an active

participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and

the murder was carried out to further the activities of the criminal street gang.” (Italics

added.) In other words, the jury necessarily found that defendants harbored the intent to

kill the victim.26

c. Evidence under natural and probable consequences doctrine

Amante, Cardenas, and Higuera next argue that the evidence does not support their

first degree murder convictions under the natural and probable consequences doctrine.

The jury was instructed that it could convict a defendant if he was found to have aided

and abetted one of five “target crimes” (breach of peace, assault, battery, assault with a

deadly weapon, or assault by means of force likely to produce great bodily injury), and

that first degree murder was a natural and probable consequence of the target crime.

26

We have focused on the evidence against Amante, because his appellate argument is

more developed than those of the other defendants who join in his argument. (Indeed,

Higuera offers no specific argument regarding the evidence as to him.) However, there

also is sufficient evidence to support Higuera‟s and Cardenas‟s convictions for first

degree murder. Cardenas points to the absence of evidence that he was armed with a

knife when he left the apartment and went with the others down the bike path, and argues

that this shows there was insufficient evidence that he harbored intent to kill the victim

under a straight aiding and abetting theory. However, Miguel testified that he also saw

two men hitting and punching the victim. In other words, the fact that Cardenas may not

have been armed with a knife does not mean that he did not participate in the attack or

intend to kill the victim. In light of the fact that it was virtually undisputed that he

traveled to the murder scene with others who were armed with knives in response to what

were believed to be rival gang whistles, there was substantial evidence that Cardenas

aided and abetted the murder of Gomez.

29

Amante first argues that “the record does not reflect even specific intent or actions to

assist others in a discrete target offense,” and that the record showed no more than that he

gave his “assistance after the fact.” Again, we disagree with this characterization of the

record, because there is substantial evidence that Amante arrived at the murder scene in

time to participate in the attack on the victim or assist the other defendants in doing so.

Amante next argues that even assuming there was evidence that he intended to aid

and abet in a breach of the peace (one of five possible target crimes), first degree murder

was at most a possible, but not a probable, result.27

Again, this argument is based on

what we consider to be a mischaracterization of the evidence presented at trial. It is

perhaps theoretically possible that a rational jury could conclude that a Norteño gang

member armed himself with a knife after hearing a rival gang‟s whistle and left his

apartment with other armed gang members simply to “check[] things out,” resulting in “a

chance encounter,” and that the murder that followed happened “to the chagrin or at least

surprise of several other persons.” The more reasonable inference, supported by the

jury‟s verdict, is that Amante (as well as other defendants) aided and abetted in any one

of the five target offenses, and that murder was the natural and probable consequence of

the attack.

Finally, Amante argues that “a finding of premeditated murder as a „probable‟

result from [defendant]‟s perspective strains inference to the breaking point of

speculation,” because a premeditated killing by the “actual killer” was not foreseeable

here. (Original italics.) Although Amante does not specifically refer to the factors set

forth in People v. Anderson (1968) 70 Cal.2d 15 to evaluate whether the murder was

premeditated, he appears to argue that the evidence here fell short of what was required

27

See discussion, ante, footnote 13. A natural and probable consequence is one that is

reasonably foreseeable (within the normal range of outcomes reasonably expected to

occur and likely to happen). (People v. Medina (2009) 46 Cal.4th 913, 920 [consequence

need not have been a strong probability; “ „ “possible consequence which might

reasonably have been contemplated is enough” ‟ ”]; see also People v. Nguyen, supra,

21 Cal.App.4th at p. 530 [crime need not be “substantially certain to result” in order to be

reasonably foreseeable].)

30

under the Anderson tripartite test to show premeditation on the part of any defendant.

“[T]he tripartite test of People v. Anderson[, supra,] 70 Cal.2d 15, [used] in deciding

whether the evidence is sufficient to support a finding of premeditation and deliberation[,

is] based on these three factors: (1) planning activity; (2) motive (established by a prior

relationship and/or conduct with the victim); and (3) manner of killing. [Citations.]

„[T]his court sustains verdicts of first degree murder typically when there is evidence of

all three types and otherwise requires at least extremely strong evidence of (1) or

evidence of (2) in conjunction with either (1) or (3).‟ [Citation.]” (Sanchez, supra,

12 Cal.4th at p. 32.) “[T]he Anderson factors do not establish normative rules, but

instead provide guidelines for our analysis.” (Ibid.) “Unreflective reliance on Anderson

for a definition of premeditation is inappropriate. The Anderson analysis was intended as

a framework to assist reviewing courts in assessing whether the evidence supports an

inference that the killing resulted from preexisting reflection and weighing of

considerations. It did not refashion the elements of first degree murder or alter the

substantive law in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)

Contrary to Amante‟s assertion, a review of the record reveals evidence of

planning activity. Gang members in Amante‟s apartment armed themselves with knives

in response to hearing “Scraps” in the area before leaving the apartment complex to

confront the victim. Planning activity that takes place over a short period of time is

sufficient to find premeditation. (Sanchez, supra, 12 Cal.4th at p. 34 [deliberation shown

where man struck his father in kitchen, then left to get a kitchen knife to carry out plan to

kill him].) “ „ “ „The true test is not the duration of time as much as it is the extent of the

reflection. Thoughts may follow each other with great rapidity and cold, calculated

judgment may be arrived at quickly.‟ [Citations.]” ‟ [Citation.]” (People v. Young,

supra, 34 Cal.4th at p. 1182.)

There also was substantial evidence of a gang-related motive, as witnesses

testified that Amante had recently been stabbed in a gang-related attack, and defendants

left the apartment after hearing a “Scraps” whistle coming from disputed territory.

(People v. Francisco, supra, 22 Cal.App.4th at pp. 1191-1192 [first degree murder during

31

gang-oriented shooting was reasonably foreseeable].) Contrary to Amante‟s assertion,

the manner of killing also was indicative of premeditation. With the number of stab

wounds inflicted, “the inference could be made that the [stabber] was intent on inflicting

death.” (Id. at p. 1192.)

First degree premeditated and deliberate murder was reasonably foreseeable to

Amante and the other defendants. Amante armed himself with a butcher knife before

proceeding to the creek, where a rival gang whistle had been heard. Before leaving

Amante‟s apartment, the other defendants ran to Amante‟s kitchen, where drawers were

opened and metal was heard banging. Although no witnesses specifically testified that

they saw Higuera or Cardenas in possession of knives on the night of the murder, it may

reasonably be inferred that all defendants armed themselves.28

All were aware of the

recent stabbing of Amante by a rival gang member. Substantial evidence supports

defendants‟ convictions under the natural and probable consequences doctrine.

4. Voluntary intoxication: instructions and argument

Amante, Cardenas, and Higuera challenge the jury instructions regarding

voluntary intoxication, arguing that the instructions misled the jury on whether evidence

of intoxication could be considered under the natural and probable consequences

doctrine. Section 22, subdivision (a) provides that “[n]o act committed by a person while

in a state of voluntary intoxication is less criminal by reason of his or her having been in

that condition. Evidence of voluntary intoxication shall not be admitted to negate the

capacity to form any mental states for the crimes charged, including, but not limited to,

purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with

which the accused committed the act.” Section 22, subdivision (b) sets forth an exception

to the rule, providing that “[e]vidence of voluntary intoxication is admissible solely on

the issue of whether or not the defendant actually formed a required specific intent, or,

when charged with murder, whether the defendant premeditated, deliberated, or harbored

express malice aforethought.”

28

See discussion, ante, footnote 4.

32

In Mendoza, supra, 18 Cal.4th 1114, our Supreme Court considered whether

section 22 permits defendants accused of aiding and abetting to present evidence of

intoxication on the question of whether they had the requisite mental states of knowledge

and intent. (Mendoza at p. 1126.) The court held that “[t]he mental state required for an

aider and abettor is the same for all crimes and is independent of the perpetrator‟s mental

state. The aider and abettor must specifically intend to aid the perpetrator, whether the

intended crime itself requires a general or specific intent on the part of the perpetrator.”

(Id. at p. 1132, italics added.) Accordingly, defendants “may present evidence of

intoxication solely on the question whether they are liable for criminal acts as aiders and

abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a

criminal act, intoxication evidence is irrelevant to the extent of the criminal liability. A

person who knowingly aids and abets criminal conduct is guilty of not only the intended

crime but also of any other crime the perpetrator actually commits that is a natural and

probable consequence of the intended crime. The latter question is not whether the aider

and abettor actually foresaw the additional crime, but whether, judged objectively, it was

reasonably foreseeable. [Citation.] Intoxication is irrelevant in deciding what is

reasonably foreseeable.” (Id. at p. 1133, original italics.)

Consistent with Mendoza, the trial court here instructed the jury, apparently

without objection,29

with CALJIC No. 4.21.2, which provided: “In deciding whether a

defendant is guilty as an aider and abettor, you may consider evidence of voluntary

intoxication in determining whether a defendant tried as an aider and abettor had the

required mental state.[30]

However, intoxication evidence is irrelevant on the question

whether a charged crime was a natural and probable consequence of the target crime.”

(Italics added.) Jurors elsewhere were instructed with CALJIC No. 4.21.1, which

provided (as modified): “It is the general rule that no act committed by a person while in

a state of voluntary intoxication is less criminal by reason of that condition. [¶] Thus, in

29

Higuera‟s counsel requested that CALJIC No. 4.21.2 be given.

30 The required mental state was elsewhere defined as having the intent or purpose of

encouraging or facilitating the crime.

33

the crimes of Second Degree Murder with Implied Malice, Breach of Peace, Assault,

Battery, Assault with Deadly Weapon, Assault by Means of Force Likely to Produce

Great Bodily Injury, the fact that the defendant was voluntarily intoxicated is not a

defense and does not relieve defendant of responsibility for the crime. This rule applies

in this case only to the crimes of Second Degree Murder with Implied Malice, Breach of

Peace, Assault, Battery, Assault with Deadly Weapon, Assault by Means of Force Likely

to Produce Great Bodily Injury.[31]

[¶] However, there is an exception to this general

rule, namely, where a specific intent is an essential element of a crime or allegation. In

that event, you should consider the defendant‟s voluntary intoxication in deciding

whether the defendant possessed the required specific intent at the time of the

commission of the alleged crime. [¶] Thus, in the crimes of First Degree Murder, Second

Degree Murder with Express Malice, Accessory, Gang Allegation, and Gang Special

Circumstance, a necessary element is the existence in the mind of the defendant of certain

specific intents which is included in the definition of the crimes set forth elsewhere in

these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time

of the alleged crime, you should consider that fact in deciding whether or not that

defendant had the required specific intent. [¶] If from all the evidence you have a

reasonable doubt whether a defendant had the required specific intent, you must find that

defendant did not have that specific intent.” (Italics added.) Jurors were also instructed

with CALJIC Nos. 4.21 [jurors could consider evidence of intoxication in determining

whether defendants had the required specific intent to commit various specific intent

crimes] and 4.22 [definition of voluntary intoxication].

Amante, Cardenas, and Higuera argue for the first time on appeal that the jury

instructions and the prosecutor‟s argument “wrongly indicated [that] intoxication was not

relevant to intent to aid and abet lesser target crimes, denying [defendants] due process of

law, a fair trial, [their] right to present a defense, and [their] right to a jury determination

31

None of these crimes was charged in the information; instead, with the exception of

second degree murder, they were target crimes for purposes of the natural and probable

consequences doctrine.

34

on all issues.”32

They claim that although the trial court instructed jurors that they could

consider voluntary intoxication when determining whether defendants were guilty as

aiders and abettors, the instructions were prejudicially deficient with respect to the

natural and probable consequences doctrine because they “repeatedly term the lesser

target offenses as general intent crimes and state intoxication is not a defense to them.”

They also argue that the jurors could have interpreted the instructions to allow

consideration of the effect of intoxication as to straight aiding and abetting, but not as to

the natural and probable consequences doctrine, and that the “prosecutor‟s arguments

certainly suggested as much.” We disagree.

Jurors were instructed that in order to find defendants guilty under the natural and

probable consequences doctrine, they first had to find beyond a reasonable doubt that one

of five target crimes (defined as general intent crimes for which intoxication was not a

defense) was committed. They were instructed that they next had to find that defendant

aided and abetted one of those (general intent) target crimes. Jurors were elsewhere

instructed that they could consider evidence of voluntary intoxication in determining

whether a defendant tried as an aider and abettor had the required mental state (i.e., that

he acted with the intent or purpose of committing or encouraging or facilitating the

commission of the crime). In other words, although jurors were told that intoxication was

not a defense to the target crimes themselves, they were correctly informed that

intoxication was a potential defense to aiding and abetting one of those crimes, consistent

with Mendoza, supra, 18 Cal.4th 1114. In sum, we disagree with Amante‟s argument

32

We agree with respondent that this issue was forfeited by failure to raise it below.

(People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on another ground in People v.

Doolin, supra, 45 Cal.4th at p. 421 & fn. 22.) Amante, Cardenas, and Higuera argue in

the alternative that if their trial counsel failed to preserve the issue, they received

ineffective assistance of counsel. Because we address the alleged deficiencies in the jury

instructions and related argument by the prosecutor on the merits and reject the claim of

error, we reject the ineffective assistance of counsel claim. (People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 108.)

35

that greater care was needed to ensure that the jury understood that intoxication applied to

the natural and probable consequences doctrine.

We also reject defendants‟ contention that the prosecutor‟s closing argument

misstated the relevance of intoxication evidence. The prosecutor stated that jurors could

consider intoxication on the issue of whether Amante (who was described as drunk on the

night of the murder) had the intent to kill the victim. He also argued, without objection:

“Target crimes in this case are general intent crimes. That‟s different than specific intent;

breach of p[eace], assault battery; assault by means of force likely. That just means it‟s a

serious assault likely to produce bodily injury or assault with a weapon. [¶] So if Pete

Amante was drunk that night and he aided and abetted in one of these target crimes, what

does that mean? Does that mean that Pete Amante is not guilty of murder? [¶] If the

murder was a natural and probable consequence[] of one of those five target crimes, and

you find that Pete Amante aided and abetted in one of those five target crimes which are

general intent crimes, not specific intent crimes, then it doesn‟t matter that he was drunk.

He‟s still guilty of motive. [¶] If you find he aided and abetted in each assault and battery

as a person who was voluntarily intoxicated, and if you find that somebody else in his

group of aider and abettors committed a murder which was a[] natural and probable

consequence[] of that target crime, his intoxication is not a defense. He is guilty. [¶] The

same is true for each of the other defendants. To the extent that any of these defendants

aided and abetted in any target crime as an intoxicated person, it matters not so long as

the murder committed by one or more of them was a natural and probable consequence of

that target crime. Does that make sense to you? They don‟t have to have [the] specific

intent to kill to be found guilty of murder.”

That defendants did not have to have the specific intent to kill to be found guilty of

murder under the natural and probable consequences doctrine was a correct statement of

the law. The prosecutor also emphasized that intoxication was not relevant to the

determination of whether murder was the natural and probable consequence of the target

crimes, which also was a correct statement of law. (Mendoza, supra, 18 Cal.4th at

p. 1133.) The prosecutor also stated that the jury had to find that defendants aided and

36

abetted the target crime in order for the natural and probable consequences doctrine to

apply. The prosecutor correctly indicated that the target crimes were general intent

crimes, as to which voluntary intoxication is not a defense. However, in order to have

aided and abetted those crimes, a defendant must have had the specific intent that the

target offense be committed, and voluntary intoxication is relevant to that issue. The

prosecutor did not delineate that specific interplay of intoxication and intent. The jury

instructions did, however. The instructions informed the jury that it had to find that

defendants acted with the intent to encourage or facilitate the commission of the crime in

order to aid and abet the crime, and that intoxication was relevant to that determination.

There was no reasonable likelihood that the jury misunderstood the instructions regarding

intoxication, notwithstanding the prosecutor‟s closing argument.

B. Issues Relating to Gang Allegations.

Defendants have raised several issues regarding the gang enhancement and gang

special circumstance. To support the gang enhancement, the prosecutor was required to

prove that the victim‟s murder was “committed for the benefit of, at the direction of, or in

association with any criminal street gang, with the specific intent to promote, further, or

assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The special

circumstance required proof that a defendant intentionally killed the victim while he was

an active participant in a criminal street gang, and that “the murder was carried out to

further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).) For purposes

of both the gang enhancement and the special circumstance, a criminal street gang is

defined as “any ongoing organization, association, or group of three or more persons,

whether formal or informal, having as one of its primary activities the commission of one

or more [enumerated criminal acts], having a common name or common identifying sign

or symbol, and whose members individually or collectively engage in or have engaged in

a pattern of criminal gang activity.” (§§ 186.22, subd. (f), 190.2, subd. (a)(22).) A gang

engages in a “ „pattern of criminal gang activity‟ ” when its members participate in two or

more specified criminal offenses (predicate offenses) committed within a certain time

frame and “on separate occasions, or by two or more persons.” (§ 186.22, subd. (e);

37

People v. Gardeley (1996) 14 Cal.4th 605, 610, fn. 1 [“ „predicate offenses‟ ” refers to

crimes that constitute “ „pattern of criminal gang activity‟ ”].) The prosecution may

present expert testimony on criminal street gangs in order to prove the elements of the

gang allegations. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez);

People v. Gardeley, supra, at pp. 617-620.)

We address defendants‟ various arguments regarding the gang allegations in turn.

1. Evidence supporting gang allegations

Amante, Cardenas, and Higuera argue that there is insufficient evidence to support

the gang findings, a claim we review for substantial evidence.33

(People v. Leon (2008)

161 Cal.App.4th 149, 161.)

Robert Scott, a Santa Rosa police officer, testified as an expert in criminal street

gangs. After describing his training and experience with gangs in Sonoma County, Scott

testified about the Norteño street gang in the county. Scott described the territory

claimed by the gang (roughly, Northern California, with the “demarcation line” being a

town near Bakersfield); the graffiti, signs, and symbols used by the gang; and the

“philosophy” of various gang members. Norteños identify with the Roman numeral XIV

and the number 14, and they claim the color red, according to Scott. About 1,400 people

claim Norteño gang membership or affiliation in Sonoma County. Scott testified about

some of the “primary activities” (§ 186.22, subd. (f)) of the Norteño street gang and

opined that it was an active street gang, as defined in section 186.22. Scott also opined,

based on defendants‟ personal admissions, his own review of police reports, and other

factors, that defendants were members of the Norteño gang on the day of the murder, and

that they were active participants in that gang. He testified that “the greatest thing that [a

33

As with the argument about the evidence supporting the murder convictions (ante,

fn. 23), Higuera simply joins in Amante‟s argument that there was insufficient evidence

to support the gang allegations, without focusing on the evidence specific to him.

Although we therefore do not address in detail the evidence as to Higuera, a review of the

entire record reveals sufficient evidence to support a true finding as to the gang

allegations against him. Higuera‟s attorney acknowledged during closing arguments to

the jury that “[y]es, my client is a Norteño gang member.”

38

Norteño gang member] can do is go to battle and defeat their enemy, a Sureño gang

member, in battle. Whether that‟s in the form of stabbing them, shooting them, beating

them with baseball bats, whatever that might be, that generally, from my discussions with

them, is what will gain them the most respect.” He also testified that “in talking with

Norteño gang members, they regularly tell me that they consider themselves to be in

constant conflict with their rival Sureño gang members. And if the opportunity arises

where they have sufficient numbers or the opportunity to take advantage of that situation

and attack their rivals, they do.”

Amante first argues that there was insufficient evidence that the Norteños were a

cognizable street gang. As he acknowledges, this argument previously has been rejected.

(People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357 (Ortega) [proof that

Norteños qualify as criminal street gang sufficient; no need to identify particular local

subset involved in crime].) People v. Valdez (1997) 58 Cal.App.4th 494, upon which

Amante relies, “does not hold that there is no criminal street gang called Norteno.” (In re

Jose P. (2003) 106 Cal.App.4th 458, 467.) As in Ortega, sufficient evidence was

presented to establish every element of the existence of the Norteños as a criminal street

gang. (Ortega, supra, 145 Cal.App.4th at p. 1356.)

Scott testified, without objection, about predicate offenses committed by five

Norteño gang members (other than defendants) to establish a “ „pattern of criminal gang

activity‟ ” (§ 186.22, subd. (e)). Three of the gang members were convicted of various

offenses (including murder and attempted murder) in connection with two separate

incidents that took place in Cloverdale. Amante argues for the first time on appeal that it

was unfair to “impute crimes from other towns under the diffuse Norteno umbrella to

ensure gang findings.” Although he does not explain why it was unfair to admit

testimony about predicate offenses that occurred in the same county where he resided,

presumably Amante means that activities that took place in Cloverdale could not be

attributable to a gang as far away as Santa Rosa (although he does not say how far away

Cloverdale is or cite any relevant authority to support his argument). We reject his

contention. Scott testified that about 1,400 people claim Norteño gang membership or

39

affiliation in Sonoma County, and that in his experience, various “subsets” of the Norteño

gang in the county “all work together under the umbrella of the Norteño criminal street

gang.” He also testified that Cardenas had been contacted by police several times in

Cloverdale while in the company of gang members, including one who was later

convicted of committing murder in that town. In light of all this testimony, we see

nothing inherently unfair about admitting evidence of predicate offenses that took place

in Cloverdale.

To the extent that Amante argues that there was insufficient proof that he

“intentionally killed” (§ 190.2, subd. (a)(22)) the victim for purposes of the gang-murder

special circumstance because it was not proven that he was the actual killer (as opposed

to an aider and abettor), this argument was recently rejected in People v. Ybarra (2008)

166 Cal.App.4th 1069, 1085-1086. As the Ybarra court noted (id. at p. 1086), the

authorizing statute addresses aiders and abettors: “Every person, not the actual killer,

who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests,

or assists any actor in the commission of murder in the first degree shall be punished by

death or imprisonment in the state prison for life without the possibility of parole if one

or more of the special circumstances enumerated in subdivision (a) has been found to be

true under Section 190.4.” (§ 190.2, subd. (c), italics added.) This is consistent with the

instruction provided to the jury here (CALJIC No. 8.80.1), that if jurors found that a

defendant was not an actual killer, they could not find the special circumstance to be true

unless they were “satisfied beyond a reasonable doubt that such defendant with the intent

to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted

any actor in the commission of the murder in the first degree.” Because substantial

evidence supports this finding, as set forth above, we will not set it aside.

Finally, we reject Amante‟s and Cardenas‟s arguments that there was insufficient

evidence that they were active participants in the Norteño gang at the time of the murder.

(§ 190.2, subd. (a)(22).) As to Amante, the jury was shown a photograph of Amante with

the number 14 (a number associated with Norteños) tattooed on his chest, a photograph

of the letters “VSRN” (for the Varrio Santa Rosa Norte subset of the Norteño street gang)

40

tattooed on his stomach, and a photograph of him with known gang members and holding

a red bandana (a color of clothing associated with Norteños). Scott testified that

Amante‟s gang moniker was “Whacky,” and that Amante had told him in August 1997

that he was an active gang member and had been “jumped in” (a slang term for being

initiated into) the gang at the age of 16. Scott testified about various times that Amante

had been contacted by gang enforcement team officers while wearing clothing typical of

Norteño gang members and associating with known gang members who had committed

various crimes (including murder), and that Amante had admitted to being a gang

member. On May 5, 2001, Amante was seen “throwing up gang hand signs,” which is a

way for a gang member to show gang affiliation as well as to challenge rival gang

members. Amante was seen at a party attended by about 30 known Norteño gang

members on Cinco de Mayo 2002, just weeks before the murder. Later that same day,

Amante was stabbed after a large group of Sureño members was seen going toward him

in what was presumably a gang-related attack.

Amante notes that Santa Rosa police officer Rainer Navarro testified that Amante

had told him that he wanted to leave the gang lifestyle, and Amante was in the process of

having gang tattoos removed a few weeks before the murder. However, Officer Scott

explained that sometimes gang members are unsuccessful in their efforts to leave a gang,

or members mislead officers about their efforts to leave a gang so that the police will not

bother them. Moreover, Officer Navarro testified that he saw Amante around the time he

was having his tattoos removed, and Amante was still wearing gang colors and a shirt

that said “Norte XIV VSRN Santa Rosa.” Navarro reprimanded Amante for making

himself a target for rival gang members. Amante told Navarro that “it was hard to stay

away and he [Amante] was out with his friends wanting to have a good time.” A man

who described himself as a good friend of Amante‟s likewise testified that he saw

Amante two to three times a week through June 2002 (the month of the murder), and that

they associated with Norteño gang members together. Given all the evidence about

Amante‟s gang activity, there was substantial evidence that Amante was an active gang

member on the date of the murder.

41

As for Cardenas, the jury was shown pictures of him with gang-related tattoos on

his arms. Scott testified about times Cardenas had been contacted by police while in the

company of known gang members, including in September, October, and November

1999. On one of those occasions (in November 1999), Cardenas denied being a Norteño

gang member (although he was wearing red clothing consistent with being a Norteño),

but he admitted that his brother was a Norteño gang member. Scott testified, over

Cardenas‟s relevance and Evidence Code section 352 objections, that Cardenas‟s brother

was “a known Norteño gang member who has been involved in Norteño criminal street

gang activity.” Scott also testified, over Cardenas‟s lack of foundation objection, that in

December 1999, Cardenas‟s brother was arrested, and that police took photographs inside

the residence showing red clothing and hats typically worn by Norteño gang members.34

Scott explained that the younger siblings of gang members tend to learn more about

gangs at a younger age than other children and want to emulate their older family

members. In February 2000, Cardenas admitted to a police detective that he had

previously lied about not being a gang member, and that he had been “jumped in” about

one year earlier. Cardenas was contacted by police in the company of known gang

members two times in July 2001; Cardenas was wearing gang clothing and again

admitted he was a gang member.

Contrary to Cardenas‟s argument on appeal, we do not consider Scott‟s opinion on

Cardenas‟s status as an active gang member on the day of the murder to be “conclusory.”

We likewise disagree with his assertion that “[m]ost” of the gang expert‟s testimony

about Cardenas‟s gang membership related to his family, as opposed to him, because

there was additional evidence presented (including admissions) specific to Cardenas. The

testimony about Cardenas‟s brother was relevant because it demonstrated Cardenas‟s

early familiarity with the gang lifestyle. It is a vast overstatement to argue, as Cardenas

does in his opening brief, that “there was no evidence that [defendant] was a Norteno

member at the time of the crime or that he had been a Norteno member any time during

34

The photographs were admitted at trial.

42

the previous year.” (Italics added.) Although Scott did not testify about other gang-

related incidents involving Cardenas in the year before the murder, there was likewise no

evidence that Cardenas had left the gang after admitting to being a Norteño.35

In fact,

Scott testified that he was relying on the murder itself—during which a group of men

grabbed knives to run in the direction of a “Scrap” after hearing a whistle associated with

the rival Sureños gang—in considering whether Cardenas was an active gang member at

the time of the murder. We see no reason to set aside the jury‟s findings on the gang

allegations in light of the substantial evidence that Cardenas was an admitted Norteño

gang member and acted consistently with being a gang member on the night of the

murder.

2. Expert testimony

Defendants argue that Scott “erroneously testified to ultimate fact issues and

offered other unfounded testimony, denying [defendants] due process of law, a fair trial,

and a jury determination on all issues.” A person with “special knowledge, skill,

experience, training, or education” in a particular field is qualified to testify as an expert.

(Evid. Code, § 720, subd. (a).) Expert testimony regarding the culture and habits of

criminal street gangs is permissible, because these subjects are “sufficiently beyond

common experience that the opinion of an expert would assist the trier of fact” (Evid.

Code, § 801, subd. (a)). (People v. Gardeley, supra, 14 Cal.4th at p. 617.) We review

the trial court‟s admission of expert testimony for abuse of discretion (People v. Ward

(2005) 36 Cal.4th 186, 210; People v. Valdez, supra, 58 Cal.App.4th at p. 506) and find

no abuse of discretion.

The prosecutor asked Scott the following hypothetical question: “First of all, I

would like you to assume that there was a person that was wearing mostly blue clothing

including a blue beanie with „SUR‟ on the forehead, blue sweatshirt; that that person was

alone on a bike, young Hispanic male adult, in the area of Stony Point Road and the

35

Cardenas is the youngest of the four defendants, and he was only 16 at the time of the

murder. It is therefore not entirely surprising that there was less evidence as to his gang

affiliation than there was regarding Amante, Higuera, and Lopez.

43

Santa Rosa Creek— [¶] . . . [¶] —in the early morning of June 27, 2002; and that he

whistled in the style that some people associate with Sureño members and that others

whistled in that same style as well; and that these five defendants were close enough to

hear those whistles in the vicinity of the creek and that when the whistles were heard that

one or more of them talked about Scraps being out by the creek; and that shortly

thereafter, all five left the apartment where they had been when they heard that; that one

or more grabbed knives from the apartment and headed across the bridge on Stony Point

to the north side of the creek; and that one of them as they passed stated to a citizen

standing nearby words to the effect of, „Do you gang— []Do you bang Norte?‟; and that

very shortly thereafter, the person that we described as the Hispanic male, young

Hispanic male, was stabbed to death approximately 40 times. [¶] Do you have an opinion

about whether that crime was committed for the benefit of or in association with a

criminal street gang?” Scott testified that it was his opinion that such a crime would be

committed for the benefit of or in association with a criminal street gang, because (1) the

victim‟s clothing was consistent with clothes worn by Sureño gang members,

(2) grabbing weapons before leaving an apartment was consistent with people preparing

for a confrontation, (3) asking an “uninvolved citizen” whether he “bang[s] Norte” was

consistent with someone looking for a confrontation, (4) stabbing the victim 40 times was

consistent with assaulting a rival gang member, and (5) the killing showed the gang‟s

power, instilled fear in members of the community, and promoted recruitment by

showing how powerful the gang was.

Scott next testified (over Higuera‟s speculation objection) that in a gang attack

such as the one described in the prosecutor‟s hypothetical, gang members would play

different roles. He testified that, based on his training and experience, “when an assault

occurs, the gang members are expected to participate if they are in the area of that assault.

To not participate could in fact cause retribution to be brought upon them.”

Although it is true that an expert is not permitted to testify about a defendant‟s

subjective knowledge and intent (People v. Killebrew (2002) 103 Cal.App.4th 644, 658),

we disagree with Amante‟s argument that the testimony cited above went to Amante‟s (or

44

any other defendant‟s) “ultimate mental states and other ultimate fact/guilt issues.”36

A

similar argument was considered, and rejected, by our Supreme Court in People v. Ward,

supra, 36 Cal.4th 186. In Ward, defendant argued that because two gang experts

answered fact-specific hypothetical questions, their answers were impermissible opinions

about defendant‟s intent. (Id. at p. 209.) The court concluded, as we do here, that “[t]he

expert[] did not render an impermissible opinion as to defendant[s‟] actual intent; rather,

[he] properly testified as to defendant[s‟] motivations for [their] actions.” (Ibid.)

Although his argument is somewhat unclear, Amante apparently reasons that because the

hypothetical question posed to Scott referred to “ „these five defendants‟ ” taking various

actions and questioned whether “that crime” was committed for the benefit of a street

gang, it was not a proper hypothetical question because it focused on the specific

defendants (as opposed to hypothetical gang members). Although it is true, as Amante

argues, that “there is a difference between testifying about specific persons and about

hypothetical persons” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3), we do not

believe that the question posed to Scott was improper. “ „Generally, an expert may

render opinion testimony on the basis of facts given “in a hypothetical question that asks

the expert to assume their truth.” ‟ ” (Id. at p. 946.) Here, Scott did not offer an opinion

as to whether any particular defendant committed the charged murder for the benefit of

the Norteño street gang. Instead, he repeatedly referred to “the hypothetical” posed by

the prosecutor when providing his opinion that the crime described was committed for

36

We agree with respondent that defendants waived this issue by not objecting below to

the challenged responses to hypothetical questions on the grounds raised on appeal.

(People v. Ward, supra, 36 Cal.4th at p. 211 [objection to expert testimony forfeited

where defendant failed to object on same basis at trial].) Defendants argue in the

alternative that if their trial attorneys failed to preserve the issue for appellate review,

they received ineffective assistance of counsel. Because we conclude on the merits that

the trial court did not err in admitting the challenged expert testimony, defendants cannot

demonstrate that they were prejudiced by any failure to preserve the issue for appellate

review. (Strickland v. Washington (1984) 466 U.S. 668, 687.)

45

the benefit of a street gang.37

(Italics added.) Although the prosecutor‟s question might

have been phrased more carefully to omit references to “these five defendants” and “that

crime,” it is clear that the question was a hypothetical one, and that Scott was not being

asked to opine about defendants‟ particular mental states at the time of the crime.

We note that “ „[t]here is no hard and fast rule that the expert cannot be asked a

question that coincides with the ultimate issue in the case.‟ ” (People v. Valdez, supra,

58 Cal.App.4th at p. 507 [no error to permit expert testimony regarding whether

defendant acted for benefit of street gang, an ultimate factual issue for jury to decide];

People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514 [permissible for expert to

testify, in response to hypothetical question, that a crime under circumstances described

was committed for benefit of street gang, the ultimate issue of case].) Here, Scott‟s

testimony about why gang members would be motivated to murder someone they heard

whistling nearby was “sufficiently beyond common experience that the opinion of an

expert would assist the trier of fact” (Evid. Code, § 801, subd. (a)) and “was not

tantamount to expressing an opinion as to defendant[s‟] guilt.” (People v. Ward, supra,

36 Cal.4th at p. 210.)

Amante also argues that Scott‟s testimony “lacked foundation in the qualifications

of the officer to offer the opinions this specific” and that Scott “simply had no expertise

for testifying to specific persons‟ motives, specific persons‟ likely participation in an

assault if they were in „the area,‟ or the credibility of [defendant]‟s or others[‟] attempts

37

For this reason, People v. Killebrew, supra, 103 Cal.App.4th 644, upon which Amante

relies, is distinguishable. There, the gang expert specifically “informed the jury of his

belief of the suspects’ knowledge and intent on the night in question” (id. at p. 658, italics

added), something that Scott did not do here. Scott likewise did not describe the roles of

accomplices in the area of the attack on the night of the murder, as Amante repeatedly

suggests. Instead, he testified that, based on his training and experience, Norteño gang

members generally are expected to participate in an assault if they are in an area where

one occurs.

46

to get out of the gang.”38

This argument mischaracterizes Scott‟s testimony, because

Scott did not testify about any specific defendant‟s motives or guilt. To the extent that

Amante argues that Scott lacked the necessary qualifications to testify as an expert, we

reject that argument. Scott testified at length about the bases for his opinions, including

his hundreds of hours of formal and informal training in criminal street gangs, monthly

meetings with a multiagency gang enforcement team, conversations with Norteño gang

members, investigations of more than 100 gang-related crimes, and personal

observations.

Cardenas argues that the erroneous admission of Scott‟s testimony regarding

“ultimate fact issues” was particularly prejudicial to him, because the gang evidence

against him rested in large part on his family members‟ gang connections. As set forth

above (§ II.B.1), there was substantial evidence, independent of evidence regarding

Cardenas‟s brother (a known Norteño gang member), that Cardenas himself was an

active gang member at the time of the murder. The trial court did not abuse its discretion

in admitting the brief additional testimony regarding Cardenas‟s sibling, because the

testimony shed light on the culture and habits of criminal street gangs. (People v.

Gardeley, supra, 14 Cal.4th at p. 617.) In short, we reject defendants‟ arguments that the

trial court erred in admitting the gang expert‟s testimony.

38

We note that in the section of his brief devoted to this argument, Amante makes only

vague and general references to Scott‟s testimony, without specific citations to the record.

(Cf. Cal. Rules of Court, rule 8.204(a)(1)(C) [factual references in appellate briefs must

be supported by citation to the record].) We find that he oversimplifies various passages

of Scott‟s testimony. For example, he claims, without citation to the record, that Scott

offered “direct opinions and sweeping explanations about all members‟ active

participation and lies about getting out.” Scott testified that, based on his investigations

of crimes and interviews with gang members, there are times when gang members are

truthful that they are trying to get out of gangs, but that there are also times when

members‟ efforts to get out of gangs are unsuccessful, or members mislead law

enforcement officers so that officers will leave them alone. Although he testified that he

had heard that Amante was trying to “leave the gang lifestyle,” he offered no opinion as

to whether he believed Amante was lying about his stated intentions.

47

3. Limiting instructions

a. Background

Defendants also challenge the trial court‟s instruction limiting the purposes for

which gang evidence might be considered. To understand their argument, it is helpful to

explain how the trial court limited the admission of gang evidence. The prosecutor and

defendants‟ attorneys disputed whether it was proper for the gang expert to testify as to

various “gang contacts” by defendants as the basis for his expert opinion. The trial court

issued a detailed ruling on the admissibility of such contacts, limiting the amount of

inadmissible hearsay upon which the expert would be permitted to rely. Because the

court believed that the probative value of evidence of defendants‟ prior arrests and certain

bad acts would be outweighed by the risk that the jury might improperly consider the

evidence, it limited the evidence upon which the expert could testify to “less prejudicial

aspects of these gang contacts such as self-admissions, gang clothing, associating with

other gang members, frequenting gang areas, gang tattoos, flashing gang signs,

possession of gang paraphernalia, and making gang comments.”

Scott testified regarding foundational requirements for both the gang enhancement

(§ 186.22, subd. (b)(1)) and the special circumstance (§ 190.2, subd. (a)(22)). In this

regard, Scott detailed certain prior offenses by Norteño members other than the

defendants, in order to support his expert opinion that the Norteños had engaged in the

requisite predicate offenses to demonstrate a “ „pattern of criminal gang activity.‟ ”

(§ 186.22, subd. (e).)

During discussion regarding jury instructions, Higuera‟s and Lopez‟s counsel

objected to CALJIC No. 2.50 (evidence of other crimes) being used as a limiting

instruction on the gang evidence, arguing that the instruction appeared directed at

situations where, unlike here, evidence of other crimes committed by a defendant had

been admitted. Higuera‟s counsel proposed that the jury be instructed that evidence of

defendants‟ contact with law enforcement was introduced only as a foundation for the

gang expert‟s opinion, and could not be considered to prove guilt for the charged offenses

or to prove that defendants aided and abetted the commission of the charged crime.

48

Citing Hernandez, supra, 33 Cal.4th at page 1049, which noted that “evidence of gang

membership is often relevant to, and admissible regarding, the charged offense,” the trial

court ruled that it would give CALJIC No. 2.50. Higuera‟s proposed instruction was not

given.

As modified here, CALJIC No. 2.50 was given to the jury as follows: “Evidence

has been introduced for the purpose of showing criminal street gang activities, and of

criminal acts by gang members, other than the crimes for which defendants are on trial.

[¶] Except as you will otherwise be instructed, this evidence, if believed, may not be

considered by you to prove that any defendant is a person of bad character or that he has

a disposition to commit crimes. It may be considered by you only for the limited purpose

of determining if it tends to show: [¶] The existence of the intent which is a necessary

element of the crime charged; [¶] A motive for the commission of the crime charged;

[¶] The defendant had knowledge or possessed the means that might have been useful or

necessary for the commission of the crime charged; [¶] That the crime or crimes charged

were committed for the benefit of, at the direction of, or in association with a criminal

street gang, with the specific intent to promote, further, or assist in any criminal conduct

by gang members. [¶] For the limited purpose for which you may consider such

evidence, you must weigh it in the same manner as you do all other evidence in the case.

You are not permitted to consider such evidence for any other purpose.” Optional

bracketed language in CALJIC No. 2.50 regarding evidence that “defendant committed [a

crime] [crimes] other than that for which [he] [she is on trial],” was omitted.

b. Analysis

In Hernandez, supra, 33 Cal.4th 1040, our Supreme Court concluded that the trial

court did not abuse its discretion in declining to bifurcate the trial of a criminal street

gang enhancement from that of the underlying charged crimes where much of the gang

evidence was relevant to the charged offenses.39

(Id. at pp. 1046, 1050-1051.) It based

39

Amante, Cardenas, and Higuera argue that the trial court erred here in declining to

bifurcate the trial on the gang allegations. We address that argument separately below.

(Post, § II.B.5.)

49

its conclusion in part on the fact that “evidence of gang membership is often relevant to,

and admissible regarding, the charged offense. Evidence of the defendant[s‟] gang

affiliation—including evidence of the gang‟s territory, membership, signs, symbols,

beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity,

motive, modus operandi, specific intent, means of applying force or fear, or other issues

pertinent to guilt of the charged crime.” (Id. at p. 1049.) The court also held that,

although the trial court is under no sua sponte duty to give a limiting instruction on gang

evidence, it should provide one upon request. (Id. at pp. 1051-1052.)

Prior to Hernandez, supra, 33 Cal.4th 1040, CALJIC No. 2.50 was directed solely

at the consideration of other crimes evidence admitted pursuant to Evidence Code

section 1101 (which permits admissibility of character evidence relevant to prove a fact,

such as motive or intent, other than a defendant‟s disposition to commit the charged

crime) and was considered “ „a correct statement of the law.‟ ”40

(People v. Wilson

(2005) 36 Cal.4th 309, 328, quoting People v. Linkenauger (1995) 32 Cal.App.4th 1603,

1615.) After Hernandez was decided, CALJIC No. 2.50 was modified to add optional

language (which was used in this case) regarding the admission of evidence to show

criminal street gang activities. (Use Note to CALJIC No. 2.50 (Spring 2009 ed.) p. 74.)

A separate instruction, CALJIC No. 17.24.3, is to be used where evidence of criminal

street gang activities is relevant only in determining whether a crime was committed “for

the benefit of, at the direction of, or in association with any criminal street gang, with the

specific intent to promote, further, or assist in any criminal conduct by gang members”

40

The prosecutor repeatedly stressed that he was not seeking to admit the expert‟s

testimony regarding specific gang contacts pursuant to Evidence Code section 1101 but

was instead seeking the admission of the testimony as a foundation for the expert‟s

opinion. However, on appeal, Amante argues in passing that “expansive descriptions of

gang acts” were not admissible under “[Evidence Code] section 1101 similarity theories.”

Amante does not point to any particular testimony that he claims was improperly

admitted. To the extent that Amante challenges the admissibility of the gang expert‟s

testimony on the ground that it was improper character evidence, he raises this issue in

such a perfunctory way that we reject it in similar fashion. (People v. Jones (1998)

17 Cal.4th 279, 304.)

50

(§ 186.22, subd. (b)(1)),41

and not in determining any other issues on the substantive

charged crime.

Defendants argue that the trial court “committed serious error in giving a

combined version of CALJIC No. 2.50 that permitted jurors to consider all gang evidence

on all conceivable issues in the case, not just gang enhancement issues, denying

[defendants] due process of law, a fair trial, and [their] Sixth Amendment right to

confront testimonial hearsay relied upon by the gang expert.” This argument is not

supported by a review of the instruction given to the jury, which provided that jurors

were to consider gang evidence, not for “all conceivable issues,” but “only for the limited

purpose” of determining whether it tended to show intent, motive, knowledge of means

useful for commission of the crime, and whether the crimes charged were committed for

the benefit of a street gang. (Italics added.) The instruction was consistent with

41

CALJIC No. 17.24.3 provides: “[Evidence has been introduced for the purpose of

showing criminal street gang activities, and of criminal acts by gang members, other than

the crimes[s] for which defendant[s] [is] [are] on trial.] [¶] [Except as you will be

otherwise instructed, this] [This] evidence, if believed, may not be considered by you to

prove that defendant is a person of bad character or that [he] [she] has a disposition to

commit crimes. It may be considered by you [only] for the limited purpose of

determining if it tends to show that the crime or crimes charged were committed for the

benefit of, at the direction of, or in association with a criminal street gang, with the

specific intent to promote, further, or assist in any criminal conduct by gang members.

[¶] For the limited purpose for which you may consider this evidence, you must weigh it

in the same manner as you do all other evidence in the case. [¶] [You are not permitted to

consider such evidence for any other purpose.]” The trial court rejected defendants‟

request to give this instruction in lieu of CALJIC No. 2.50, because the evidence in this

case was relevant on issues other than proving the gang enhancement.

51

Hernandez, supra, 33 Cal.4th 1040, and did not misstate the purposes for which the jury

could consider gang evidence.42

Amante also objects that CALJIC No. 2.50 “did not even specify what evidence

was limited to the gang enhancements” and “grossly fail[ed] to specify and segregate the

evidence admitted for various purposes.” (Italics omitted.) He does not direct us to

anywhere in the record where such a clarifying instruction was proposed. He likewise

does not explain on appeal how the jury should have been instructed on this issue, other

42

We also disagree with Amante‟s suggestion that the prosecutor offered improper

argument regarding the gang expert‟s testimony. He directs us to portions of the

prosecutor‟s closing argument that highlighted gang evidence, but for which no objection

was made. (People v. Bell (1989) 49 Cal.3d 502, 538-539 [defendant waives objection

not raised below where counsel arguably misstates law during argument].) Having

reviewed the selected portions of the prosecutor‟s closing argument, we conclude that

they did not misstate the law and were not otherwise improper.

52

than to direct this court to CALCRIM Nos. 37543

and 1403.44

He claims that those

instructions “probably” would have spared the jury “the worst of the confusion,” because

CALCRIM No. 1403 would have directed jurors to consider “gang evidence to prove the

enhancement and motive,” and CALCRIM No. 375 would have focused jurors “on what

other evidence (e.g., gang membership and rivalries, not third party crimes) was really

admissible on other substantive issues.” (Original italics.) To the contrary, CALCRIM

No. 1403 does not differ from CALJIC No. 2.50 as given in this case in any material

way. As the bench notes to CALCRIM No. 375 explain, that instruction is to be given on

request when evidence of other offenses has been introduced pursuant to Evidence Code

section 1101, subdivision (b). (Bench Notes to CALCRIM No. 375 (Fall 2008 ed.)

43

CALCRIM No. 375 provides, in relevant part: “[The People presented evidence (of

other behavior by the defendant that was not charged in this case/that the defendant ___

<insert description of alleged conduct admitted under Evid. Code, § 1101(b)>).] [¶] You

may consider this evidence only if the People have proved by a preponderance of the

evidence that the defendant in fact committed the (uncharged offense[s]/act[s]). Proof by

a preponderance of the evidence is a different burden of proof than proof beyond a

reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude

that it is more likely than not that the fact is true. [¶] If the People have not met this

burden, you must disregard this evidence entirely. [¶] If you decide that the defendant

committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider

that evidence for the limited purpose of deciding whether or not: [¶] . . . [¶] [The

defendant acted with the intent to ___ <insert specific intent required to prove the

offense[s] alleged> in this case](./; or) [¶] . . . [¶] [The defendant had a motive to commit

the offense[s] alleged in this case](./; or) [¶] . . . [¶] [The defendant knew ___ <insert

knowledge required to prove the offense[s] alleged> when (he/she) allegedly acted in this

case](./; or) [¶] . . . [¶] [The defendant ___ <insert description of other permissible

purpose; see Evid. Code, § 1101(b)>.] . . . .”

44 CALCRIM No. 1403 provides, in relevant part: “You may consider evidence of gang

activity only for the limited purpose of deciding whether: [¶] [The defendant acted with

the intent, purpose, and knowledge that are required to prove the gang-related

(crime[s]/[and] enhancement[s]/[and] special circumstance allegations) charged(;/.)]

[¶] [OR] [¶] [The defendant had a motive to commit the crime[s] charged(;/.)] [¶] . . . [¶]

[OR] [¶] [___ <insert other reason court admitted gang evidence>.] [¶] . . . [¶] You may

not consider this evidence for any other purpose. You may not conclude from this

evidence that the defendant is a person of bad character or that (he/she) has a disposition

to commit crime.”

53

p. 133.) The instruction does not distinguish between “gang membership and rivalries”

and “third party crimes” as Amante claims; in fact, it does not specifically mention gang

evidence. Such an instruction therefore would have been unnecessary here.

The jury was correctly instructed on the intent necessary to convict defendants of

first degree murder (CALJIC No. 8.20), as well as what must be proved in order to find

the gang enhancement true (CALJIC No. 17.24.2; § 186.22, subd. (b)(1)). We reject

Amante‟s apparent argument that the trial court was obligated to further specify what

particular gang evidence was relevant to which finding the jury had to make. People v.

Rollo (1977) 20 Cal.3d 109, upon which Amante relies, is distinguishable. In Rollo, the

trial court admitted evidence of a prior conviction for impeachment purposes when the

defendant testified. (Id. at p. 115.) Our Supreme Court held that it was error (although

harmless) for the trial court to instruct the jury with CALJIC No. 2.50, because the

instruction improperly suggested that the jury could consider evidence of the prior

conviction to determine whether defendant had the intent and knowledge necessary to

commit the charged offense. (Rollo, supra, at pp. 122-123.) The court noted that in the

future, “in any case in which the court has properly admitted both a prior felony

conviction of the defendant for the purpose of impeachment and „other crimes‟ evidence

on a substantive issue, the cautionary instruction on the latter point should identify the

evidence to which it relates.” (Id. at p. 123, fn. 6.) Here, defendants did not testify, so

there was no confusion over whether evidence was being admitted for impeachment or

another purpose. To the extent that the trial court was under a sua sponte obligation to

identify in the limiting instruction the evidence to which it related, we believe that the

instructions given here were sufficient. The limiting instruction used referred to evidence

“introduced for the purpose of showing criminal street gang activities, and of criminal

acts by gang members, other than the crimes for which defendants are on trial,” and the

jury was elsewhere correctly instructed on the definition of a “criminal street gang” and

the elements necessary to find true the gang enhancement (CALJIC No. 17.24.2).

Considered together, the jury instructions adequately informed the jury of the limits upon

their consideration of this evidence.

54

Having concluded that the trial court did not err in giving CALJIC No. 2.50 as

modified in this case, we now address related issues that Amante raises in passing.

Amante notes that “it appears no instructions limiting any expert testimony to basis of

opinion were given during testimony or later,” and indicates that such an instruction was

requested. We presume this is a reference to an instruction that would have told the jury

that hearsay matters upon which the expert based his opinions were admitted only to

show the bases of his opinions and not for the truth of the matters asserted. (E.g.,

People v. Coleman (1985) 38 Cal.3d 69, 92; People v. Valdez, supra, 58 Cal.App.4th at

pp. 510-511 & fn. 12.) We agree with Amante that such a limiting instruction was not

given here; however, we disagree that one was specifically requested.45

Because the trial

court had no sua sponte duty to instruct the jury on specific evidentiary limitations, the

issue is waived.46

(People v. Montiel (1993) 5 Cal.4th 877, 918.)

45

Higuera proposed (and the trial court declined to give) a jury instruction which

provided that “[e]vidence of a particular defendant‟s contact with law enforcement was

introduced only for the purpose of explaining the basis of the „gang expert‟s‟ opinions as

it relates to the elements of the charged special circumstance in this case and the criminal

street gang enhancement. It cannot be used to show guilt for the charged offense or

offenses.” Although the proposed instruction referred to the gang expert‟s testimony, it

did not specifically state that jurors could not rely on matters considered by the expert for

the truth of the matter asserted. Moreover, the instruction was not a correct statement of

law, because gang evidence was relevant to the underlying charged offenses as well.

(Hernandez, supra, 33 Cal.4th at p. 1049.) During in limine motions, Amante‟s and

Ochoa‟s counsel and the trial court did raise general concerns regarding the jury‟s ability

to understand whether evidence was being admitted as foundation for the gang expert‟s

opinion or for the truth of the matters asserted, and whether the jury should be instructed

on that issue. However, Amante directs this court to no specific request that any

defendant made for such a limiting instruction after the trial court issued its detailed

ruling on the admissibility of gang evidence. The written proposed jury instructions that

defendants submitted to the trial court do not include a request cautioning the jury about

hearsay statements relied on by the gang expert.

46 Defendants argue that if their trial counsel failed to adequately preserve objections

about the adequacy of the limiting instruction for appellate review, they received

ineffective assistance of counsel. Because we conclude that any arguable error here was

harmless and that defendants therefore were not prejudiced, we reject this argument.

55

Even assuming that the issue was not waived, failure to give such a limiting

instruction here was not reversible error. Amante argues: “By including gang acts and

criminal street gang evidence in section [sic, presumably, CALJIC No. 2.50] [the trial

court] opened the door to expansive consideration of expert hearsay anecdotes, predicate

priors, and opinions about primary activities on issues of intent and knowledge for aiding

and abetting.” Amante directs this court to no specific hearsay evidence relied on by the

gang expert that might have been considered for an improper purpose, much less

demonstrate how he was prejudiced by the absence of a limiting instruction, other than to

argue generally that there was “a grave risk jurors would fill in the gaps of a spur-of-the-

moment gang foray based on [unspecified] general gang evidence (including related

expert opinions) as an improper substitute for proof of intentional aiding and abetting or

natural and probable consequences.” The trial court in fact limited the amount of

otherwise inadmissible hearsay the expert would be allowed to reveal when stating his

opinion in order to prevent jurors from relying on evidence for an improper purpose.

Having reviewed the gang expert‟s testimony, we conclude that the revelation of hearsay

matters absent a limiting instruction does not undermine confidence in the judgments.

(People v. Montiel, supra, 5 Cal.4th at p. 922.)

Finally, Amante argues that the trial court “failed to give any instruction like

CALJIC [No.] 2.50.2 informing jurors they could not consider other crimes or gang

activities that were not at least proven to a preponderance (or beyond a reasonable doubt

if they are essential to guilt; CALJIC No. 2.01).”47

Amante does not direct us to any

particular gang evidence that was subject to the preponderance of the evidence standard.

Had the trial court instructed the jury with the optional portion of CALJIC No. 2.50

directed at proof of crimes committed by defendants other than those for which they were

47

As respondent notes, jurors were instructed (at Cardenas‟s request) with CALJIC

No. 2.50.2, which provides a definition of the preponderance of the evidence burden of

proof. However, the instruction was given in connection with CALJIC No. 3.19, placing

on defendants the burden of proving by a preponderance of the evidence that Kacee

Dragoman and/or Lindsey Ortiz were accomplices in the murder.

56

on trial,48

the trial court would have been obligated upon request to give CALJIC

No. 2.50.1, which provides that the prosecution has the burden of proving those other

crimes by a preponderance of the evidence.49

(People v. Carpenter (1997) 15 Cal.4th

312, 380-382, disapproved on another ground by Verdin v. Superior Court (2008)

43 Cal.4th 1096, 1106-1107.) The trial court excluded such evidence, and the instruction

was not necessary.50

48

The optional language provides in part: “Evidence has been introduced for the purpose

of showing that the defendant committed [a crime] [crimes] other than that for which [he]

[she] is on trial[.]” (CALJIC No. 2.50.)

49 Amante requested below that the instruction be given but later withdrew the request.

50 The jury was properly instructed with CALJIC Nos. 2.90 (providing that the

prosecution had the burden of proving defendants‟ guilt beyond a reasonable doubt),

8.80.1 (providing that the prosecution had the burden of proving the truth of the gang

special circumstance beyond a reasonable doubt), and 17.24.2 (providing that the

prosecution had the burden of proving the truth of the gang enhancement beyond a

reasonable doubt).

57

CALJIC No. 2.50 as given in this case was a correct statement of the law and was

beneficial to defendants because it limited the purpose for which gang evidence was

admitted. We reject defendants‟ argument that the instruction amounted to “serious

error.”

4. Unanimity instruction

The jury found true the allegations that defendants intentionally killed the victim

while they were active participants in a criminal street gang and that the crime was

carried out to further the activities of the gang (§ 190.2, subd. (a)(22)), and that

defendants committed murder for the benefit of a street gang (§ 186.22, subd. (b)(1)).

The existence of a criminal street gang is an element of these allegations. (Ortega, supra,

145 Cal.App.4th at p. 1355.) Defendants argue for the first time on appeal that the trial

court had a sua sponte duty to provide the jury with a unanimity instruction with respect

to the gang allegations, requiring that jurors had to unanimously agree on “the applicable

qualifying street gang.” (E.g., CALJIC No. 17.01 [where evidence of more than one act

or omission that could result in guilty verdict, jurors must agree that defendant committed

same act or omission in order to convict].) We disagree.

A jury verdict must be unanimous in a criminal case. (People v. Russo (2001)

25 Cal.4th 1124, 1132.) “Additionally, the jury must agree unanimously the defendant is

guilty of a specific crime. [Citation.] Therefore, cases have long held that when the

evidence suggests more than one discrete crime, either the prosecution must elect among

the crimes or the court must require the jury to agree on the same criminal act.

[Citations.]” (Ibid., original italics.)

Amante cites no authority for the proposition that jurors must unanimously agree

on the name of the gang supporting a gang allegation, and as he acknowledges, at least

one published opinion holds to the contrary. (Ortega, supra, 145 Cal.App.4th at

p. 1357.) A jury convicted defendant in Ortega of first degree murder and found true

allegations that he killed the victim while being an active participant in a criminal street

gang, and that the murder was committed for the benefit of, at the direction of, or in

association with a criminal street gang. (Id. at p. 1346.) A gang expert in Ortega

58

testified that there were thousands of Norteño gang members in the Sacramento area, and

that there were 20 to 25 subsets of Norteños. (Id. at p. 1356.) The appellate court

rejected defendant‟s argument that a unanimity instruction was required as to which gang

was involved: “ „When an accusatory pleading charges a single criminal act, and the

evidence shows more than one unlawful act, there is the possibility of a conviction even

though the jurors are not in agreement as to the act upon which the conviction is based.

[Citations.] It is the general rule in such cases that the prosecutor either “must select the

specific act relied on to prove the charge or the jury must be instructed in the words of

CALJIC No. 17.01 . . . that it must unanimously agree beyond a reasonable doubt that

defendant committed the same criminal act. [Citations.]” ‟ [Citation.] [¶] The name of a

gang is not a criminal act. There was no evidence that defendant[s] belonged to any gang

other than the Norteño gang, thus there was no possibility the jury was in disagreement

about the gang with which defendant associated. There was no need for a unanimity

instruction.” (Id. at p. 1357, original italics.)

Scott testified that there were various “subsets” of the Norteño gang in Sonoma

County (including, among others, Varrio Santa Rosa Norte (VSRN) and the Aztec Tribal

Cholos (ATC)), and that the subsets unite together to “fight against the common enemy,

the Sureños.” He explained that “various subsets of the Norteño organization will act

together and commit crimes together.” Evidence was presented showing that defendants

Amante, Cardenas, and Higuera were associated with the VSRN subset of the Norteño

gang, and that Lopez was affiliated with the ATC subset.

We disagree with Amante‟s argument that there was “room to dispute” whether

the Norteño gang was “the relevant gang here”; in fact, there was evidence that

defendants all were acting for the benefit of the Norteño gang on the night of the murder.

As in Ortega, supra, 145 Cal.App.4th 1344, “[n]o evidence indicated the goals and

activities of a particular subset were not shared by the others. There was sufficient

evidence that Norteño was a criminal street gang, that the murder was related to activity

of that gang, and defendant[s] actively participated in that gang. There is no further

requirement that the prosecution prove which particular subset was involved here.” (Id.

59

at p. 1357.) We agree with respondent that once the jury found here that defendants were

active members of a street gang and that they committed murder for the benefit of a street

gang, it was irrelevant whether the specific beneficiary of the crime was the “umbrella”

Norteño gang or a subset of the gang. No unanimity instruction was necessary.

5. Bifurcation

Before trial, Higuera (joined by Amante) moved to bifurcate trial of the gang

enhancement (§ 186.22, subd. (b)(1)) and gang special circumstance (§ 190.2,

subd. (a)(22)) from the murder charge. The trial court denied the motion, stating that “the

gang charges are now so intertwined with the underlying substantive offense that

bifurcation here is neither appropriate nor even possible considering the facts of this

case.” Amante, Cardenas, and Higuera argue on appeal that the trial court‟s ruling

“resulted in gross unfairness and denial of due process and a fair trial.” We review a trial

court‟s denial of a request to bifurcate for abuse of discretion (Hernandez, supra,

33 Cal.4th at pp. 1048, 1051) and find no abuse of discretion.

Section 104451

gives a trial court wide discretion to bifurcate proceedings.

(People v. Calderon (1994) 9 Cal.4th 69, 74-75.) The Supreme Court has distinguished

between a prior conviction allegation, which relates to the defendant‟s status and may

have no connection to the charged offense, and a criminal street gang allegation, which

“is attached to the charged offense and is, by definition, inextricably intertwined with that

51

Section 1044 provides: “It shall be the duty of the judge to control all proceedings

during the trial, and to limit the introduction of evidence and the argument of counsel to

relevant and material matters, with a view to the expeditious and effective ascertainment

of the truth regarding the matters involved.”

60

offense.”52

(Hernandez, supra, 33 Cal.4th at p. 1048.) There is generally less need for

bifurcation of a gang enhancement than of a prior conviction allegation. (Ibid.)

The party seeking severance or bifurcation has the burden to “clearly establish that

there is a substantial danger of prejudice requiring that the charges be separately tried.”

(People v. Bean (1988) 46 Cal.3d 919, 938.) No such substantial danger of prejudice was

shown here. We agree with the trial court that the gang charges were “so intertwined

with the underlying substantive offense” that it would have been all but impossible to

bifurcate the trial. Witnesses established that defendants were motivated to target

“Scraps” after hearing what they believed to be Sureño whistles coming from an area that

was the subject of rival claims by the Norteños and Sureños. Gang rivalry was the only

motive offered for the murder; a bifurcated trial therefore would have been impracticable.

Our Supreme Court recognized in Hernandez, supra, 33 Cal.4th 1040, that

bifurcation may be appropriate in cases where, for example, gang evidence is “so

extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the

jury to convict regardless of the defendant‟s actual guilt.” (Id. at p. 1049.) The trial court

here excluded evidence it considered unduly prejudicial and limited the gang expert‟s

testimony to “less prejudicial aspects of these gang contacts such as self-admissions,

gang clothing, associating with other gang members, frequenting gang areas, gang

tattoos, flashing gang signs, possession of gang paraphernalia, and making gang

comments.” Although it is true that the predicate offenses offered to establish a “ „pattern

of criminal gang activity‟ ” (§ 186.22, subd. (e)) were not related to the charged crime or

defendants (Hernandez, supra, at p. 1049), this was not a situation where such evidence

52

Higuera argued below that the trial court should bifurcate both the gang enhancement

and special circumstance from the murder change. Amante argues on appeal that the trial

court‟s discretion to bifurcate gang allegations “doubtless [applies to] the special

circumstance, not just the gang enhancement.” We note that the Hernandez court stated

in dicta that the trial of a special circumstance pursuant to section 190.2, subd. (a)(22) is

to “be determined at the same time as the guilt determination.” (Hernandez, supra,

33 Cal.4th at p. 1049.) Even assuming that the trial court had discretion to bifurcate the

determination of the special circumstance, we conclude that the trial court did not abuse

its discretion in declining to bifurcate it.

61

was “unduly prejudicial, thus warranting bifurcation.” (Ibid., italics added.) Because it

was clear that the evidence was limited to prove the gang allegations and not to prove that

defendants had a propensity to commit crime, there was no risk of confusion with

collateral matters. Further, “[e]ven if some of the expert testimony would not have been

admitted at a trial limited to guilt, the countervailing considerations that apply when the

enhancement is charged permitted a unitary trial.” (Id. at p. 1051.) We find no strong

support for bifurcation and accordingly find no abuse of discretion.

C. Amante’s Severance Motions.

Amante argues on appeal that the trial court erred when it denied his motions to

sever his trial from that of his codefendants. After his arrest, Amante gave a lengthy

statement to Detective George Collord in which he first denied involvement in the

murder, but then acknowledged that he was present and described various details about

the crime. Amante moved before trial to sever his trial from that of the other defendants,

arguing that defendants would be offering conflicting or antagonistic defenses, and that

admission of his statement to police would violate his codefendants‟ Sixth Amendment

rights. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S.

123.) The prosecution proposed redacting the transcript pursuant to Aranda and Bruton,

so that references implicating Amante‟s codefendants would be omitted. The trial court

denied the motion to sever, concluding that the redacted statement appeared appropriate,

and that there were no antagonistic defenses justifying severance.

The trial court later granted Amante‟s renewed motion, in which Amante argued

that the redacted version of his statement to police left out information that was favorable

to him. The trial court declined to sever the trial, but granted Amante‟s alternative

request to seat two juries to hear the case. The prosecution thereafter requested that the

trial court reconsider seating two juries, representing that the prosecutor no longer

intended to offer Amante‟s statement to police into evidence, rendering separate panels

unnecessary. The trial court agreed and decided not to seat two juries. Amante‟s

statement to the police was not admitted at the joint trial.

62

Ortiz testified at trial (on cross-examination) that after Amante‟s arrest, Amante

told her and Dragoman that they should give statements to the police, and that Ortiz

reviewed police reports before giving her statement. Ortiz testified that before she spoke

to police, Amante told her that he had already given a statement. After Ortiz testified,

Amante again renewed his motion for severance, arguing that Ortiz‟s reference to his

statement to police “put [him] at a substantial tactical disadvantage.” The trial court

denied the motion, and Amante argues on appeal that the trial court‟s refusal to sever the

trial resulted in gross unfairness and the denial of due process and a fair trial.

Section 1098 provides that when two or more defendants are jointly charged, they

must be jointly tried unless the trial court orders separate trials. “We review a trial

court‟s denial of a severance motion for abuse of discretion based on the facts as they

appeared at the time the court ruled on the motion. [Citation.] If the court‟s joinder

ruling was proper at the time it was made, a reviewing court may reverse a judgment only

on a showing that joinder „ “resulted in „gross unfairness‟ amounting to a denial of due

process.” ‟ [Citation.] Even if the court abused its discretion in refusing to sever,

reversal is unwarranted unless, to a reasonable probability, defendant would have

received a more favorable result in a separate trial. [Citation.]” (People v. Avila (2006)

38 Cal.4th 491, 575.)

We conclude that the trial court did not abuse its discretion in denying Amante‟s

severance motions. Although it is true that Ortiz and Dragoman were permitted to testify

that they spoke with Amante before giving their statements to police (consistent with the

codefendants‟ theory that Amante coached the women to give accounts that matched his

own), the trial court excluded the contents of the incriminating statement that Amante

63

himself gave to police.53

Furthermore, even assuming that the testimonies of Ortiz and

Dragoman regarding their conversations with Amante would not have been admitted in a

separate trial, we conclude that there is no reasonable probability that Amante would

have received a more favorable result in such a trial. (People v. Avila, supra, 38 Cal.4th

at p. 575.)

D. Photographic Lineup.

Amante argues that it was reversible error to admit evidence of Miguel‟s out-of-

court identification of a picture of Amante in a photographic lineup.54

In response to

Amante‟s motion to suppress evidence of the identification, the prosecutor offered the

following evidence at a hearing pursuant to Evidence Code section 402.55

On June 28,

2002 (two days after the murder), Miguel went to the police station, where Detective

Collord showed Miguel seven “six-pack” photographic lineups, or a total of 42

photographs of individuals. The photographs were about two inches by three inches:

some were black and white, and some were in color. The lineup included color

53

Amante states on appeal that he “could not even offer his consistent police statement”

to rebut the suggestion that he gave a different account of the murder to police than Ortiz

and Dragoman did. He does not direct us to anywhere in the record where he requested

admission of the statement. In fact, before Detective Collord testified, Amante‟s counsel

expressed his concern that the prosecutor would ask questions that would open the door

to testimony about Amante‟s statement to Collord. The prosecutor stated that he was

“not going to talk at all about the interview with defendant Amante including the

circumstances of that interview so that we can avoid precisely the concern that counsel is

concerned with. [¶] So if [Amante‟s counsel] is interested in pursuing that, then I would

share the concern that he has with regard to kicking open any doors as to the content of

the interview itself.” Amante‟s counsel responded, “I understand the extremely thin ice

upon which I would be treading and will advance accordingly. [¶] So I have no further

objection.”

54 Higuera, Lopez, and Cardenas did not join in Amante‟s motion below to exclude

evidence of the photographic lineup, and they likewise do not join Amante‟s appellate

challenge to the admission of evidence of the photographic lineup.

55 Evidence Code section 402 provides that the trial court shall determine the existence of

a preliminary fact where the fact is disputed.

64

photographs of Amante and Higuera and a black-and-white photograph of Ochoa.

Miguel was not able to identify anyone in the photographs.

That same night, Miguel traveled with a different detective (Detective

Vanderpool) to the crime scene, and Miguel directed Vanderpool to the apartment where

Amante lived. After the visit to the crime scene, Vanderpool conducted a second

photographic lineup. Vanderpool gave Miguel four large color photographs of men with

mustaches: Amante, Higuera, and two other suspects. The photographs of Amante and

Higuera (as well as the other two suspects) were the same as the ones that had been

previously shown to Miguel by Detective Collord; the only difference was that the

photographs were larger (about four inches by five inches). Vanderpool admonished

Miguel that the people Miguel had described to him might not be in the photographs.

Miguel pointed almost immediately to Amante and identified him as the one who lived in

the apartment that he had shown to Vanderpool. Miguel also told Vanderpool that

Amante was the person he saw stabbing the victim. According to Vanderpool, Miguel

“had no trouble whatsoever identifying th[e] photograph of Mr. Amante.”

At the evidentiary hearing, Robert Shomer, Ph.D., testified for Amante as an

expert in eyewitness identification. Shomer testified that showing a witness the same

photograph within a relatively short time period might trigger a faulty recognition of a

suspect, and he also testified that it is difficult to identify someone from 300 feet away at

night. The trial court concluded that the photographic lineup was not so impermissibly

suggestive as to give rise to a substantial likelihood of irreparable misidentification, and

permitted testimony regarding the identification of Amante.

Before the jury, Detective Vanderpool testified that Miguel identified Amante‟s

photograph “immediately” and that Miguel said “he could see the knife glistening in the

65

moon during the attack and that Mr. Amante was the one that was stabbing—was one of

the ones stabbing the victim.”56

The burden of demonstrating that an identification procedure is unreliable lies

with the defendant. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) A court first

determines whether the identification procedure at issue was unduly suggestive so as to

give rise to a very substantial likelihood of irreparable misidentification. (Ibid.) If the

court concludes that the procedure was not unduly suggestive, the inquiry into the due

process claim ends. (Id. at pp. 412-413.) Even if the court concludes that the procedure

was unduly suggestive, however, evidence of the identification may still be admissible if

the court concludes that the identification was reliable under the totality of the

circumstances. (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114.) The factors to be

considered in determining reliability include “the opportunity of the witness to view the

criminal at the time of the crime, the witness‟ degree of attention, the accuracy of his

prior description of the criminal, the level of certainty demonstrated at the confrontation,

and the time between the crime and the confrontation.” (Id. at p. 114; see also People v.

Ochoa, supra, 19 Cal.4th at p. 412.)

Citing the Evidence Code section 402 hearing testimony of his eyewitness

identification expert, Amante argues that the second photographic lineup presented to

Miguel was unduly suggestive because police showed Miguel the same photograph of

Amante twice, and because there was a risk that Miguel had not been able to differentiate

between the people he saw the night of the murder. Considering the context in which the

second photographic lineup was shown to Miguel, we cannot agree. Although Miguel

could not identify anyone in the first photographic lineup, while he was looking at the

photographs he told Detective Collord that he possibly knew one of the people who

walked across the bridge the night of the murder. Detective Collord did not follow up on

56

Miguel was not able to identify any of the defendants at trial. He recalled, however,

that he had been shown a photographic lineup after the murder, and that he had been able

to identify the person who was wearing a red jersey and white tank top the night of the

murder as “a stabber.”

66

this information with Miguel, and the lineup took only about two minutes. Later that

night, Miguel was introduced to Detective Vanderpool, and they traveled together to the

murder scene. Miguel directed Vanderpool from the scene to Amante‟s apartment, told

Vanderpool that a person involved in the stabbing lived there, and provided a description

of the person who lived in the apartment.57

Although Miguel previously had been unable to identify Amante in a lineup with a

different detective, it makes sense that Vanderpool would show Miguel an additional

photographic lineup after Miguel had provided detailed information about a specific

suspect following a visit to the scene of the crime. It is not as if police simply showed

Miguel photographs of Amante in successive lineups until Miguel was able to identify

Amante, a procedure that might be considered unfair because it “suggests in advance of

identification by the witness the identity of the person suspected by the police.”

(People v. Slutts (1968) 259 Cal.App.2d 886, 891 [photographic lineup violated due

process where child shown several pictures, but only one had beard drawn on it].) As

respondent notes, had the first lineup influenced Miguel‟s second review of photographs,

“one would have expected Miguel to recognize all four photos because they had all been

included in the earlier review.”

“Surely, we cannot say that under all the circumstances of this case there is „a very

substantial likelihood of irreparable misidentification.‟ [Citation.] Short of that point,

such evidence is for the jury to weigh. We are content to rely upon the good sense and

judgment of American juries, for evidence with some element of untrustworthiness is

customary grist for the jury mill. Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some questionable feature.”

(Manson v. Brathwaite, supra, 432 U.S. at p. 116, italics added.) Amante had the

opportunity to cross-examine the two detectives who conducted the photographic lineups,

and he also presented at trial the testimony of his own defense expert on eyewitness

57

Although Miguel described the person who lived in Amante‟s apartment, Vanderpool

could not recall at trial the description that had been provided, other than the fact that

Miguel said that the person had been wearing a white t-shirt.

67

identification. The jury was presented with ample information to evaluate the reliability

of Miguel‟s identification of Amante.

Even assuming arguendo that the identification procedure was impermissibly

suggestive so as to lead to a substantial likelihood of misidentification, we conclude that

the procedure was reliable under the totality of the circumstances. (Manson v.

Brathwaite, supra, 432 U.S. at p. 114; People v. Ochoa, supra, 19 Cal.4th at p. 412.)

When asked whether he was able to see down the bike path to where the assault occurred,

Miguel testified, “Yes. Not perfectly, but I can see the people right there.” Miguel was

shown a photograph of Amante just two days after the murder. Most significantly,

Vanderpool testified that Miguel “had no trouble whatsoever identifying th[e] photograph

of Mr. Amante” as being the person who lived in Amante‟s apartment and whom he saw

the night of the murder. We conclude that the trial court did not err in admitting evidence

of the photographic lineups.

E. Failure to Discharge Juror.

Toward the conclusion of trial, a juror reminded the trial court that he had a

prepaid vacation coming up in a few days, as he had previously informed the court. The

trial court excused the juror for cause and replaced him with an alternate (identified in the

record only as Juror No. 1499).58

The next day, the trial court reported to defendants‟

counsel that it had received a voicemail from the dismissed juror, who claimed that the

alternate had learned during trial that she and her husband knew the family of defendant

Ochoa. The dismissed juror returned to court, was sworn, and testified that his

replacement had told him a few days earlier that she was not comfortable about serving

as a juror, because she realized during trial that her husband played soccer with someone

who had been attending the trial. According to the dismissed juror, the alternate realized

58

The trial court empanelled five alternate jurors. The dismissed juror was the fourth

juror to be excused during trial, leaving one alternate after he was replaced. For

simplicity of reference, Juror No. 1499 is hereafter referred to simply as “the alternate” or

“the alternate juror.”

68

at some point that the person attending the trial was related to defendant Ochoa in some

way.

The trial court questioned the alternate juror, who reported that she realized on the

second or third day of trial that there was someone in the audience whom she had met the

previous weekend. She asked the bailiff whether “it was important or not,” but the bailiff

told her “as long as [she] didn‟t know any of the defendants or any of the lawyers, it

didn‟t matter.” The juror saw two people (a man and a girl), whom she recognized as

audience members from the trial, “almost every weekend” at her husband‟s soccer games,

where the man played with the juror‟s husband. The juror did not realize until toward the

end of trial (about two months after it began) how the man and girl were connected with

one of the defendants. She overheard someone say the girl‟s last name, which led the

juror to believe that the girl was Ochoa‟s sister and the man was Ochoa‟s father. At one

point (apparently, during trial), the alternate hosted people associated with the soccer

team (including the people she believed to be Ochoa‟s father and sister) at her home, and

the females were in the juror‟s spa together. The alternate explained that she had never

talked with Ochoa‟s relatives privately, that the relatives had never looked at her when

they were at the courthouse, and that they had never discussed the trial with her. The

alternate juror told the trial court that she was “trying to be really honest and really fair,”

and she did not think that the connection through her husband‟s soccer team would

“affect [her] in any way.” The alternate also explained that she was not worried about

how a verdict would affect her relationship with people on her husband‟s soccer team and

their wives, stating, “Like I said I—I just met them [Ochoa‟s relatives] not too long ago,

so they‟re not really my friends.”

Counsel for Amante, Cardenas, Higuera, and Lopez sought the discharge of the

alternate juror, but the trial court did not believe that there was cause to discharge her.

The court nonetheless questioned the alternate further regarding whether she had

discussed recognizing audience members with other jurors. The juror stated that she had

raised the concern with another woman on the jury, who recommended that the juror

speak with the bailiff (which she did). She also discussed the issue with the juror she

69

replaced. The alternate said she had not discussed the issue with her husband. The trial

court directed the juror not to discuss with other jurors the fact that she had been

questioned, and not to have contact with the people whom she believed to be Ochoa‟s

relatives.

The next day, the trial court questioned the bailiff with whom the alternate spoke

when she first realized that she might recognize people attending the trial. The bailiff

testified that the alternate had mentioned to him “in the very beginning of the trial when

she got here” that she might recognize someone in the audience. He directed her to raise

the subject during voir dire. He testified that he “got the impression that she may

recognize someone in the audience. She wasn‟t sure. That‟s the impression that I got.”

The trial court again briefly questioned the alternate, who stated that the people

she recognized had been at her house “[t]hree Sundays ago.” She stated that she was not

sure about the possible relationship between them and Ochoa until the following Sunday,

when someone mentioned the girl‟s last name. The juror “knew for sure” the relationship

the following Friday, when she “saw the men talking to [Ochoa‟s attorney].” After the

court concluded questioning the juror, counsel for Amante, Cardenas, Higuera, and

Lopez renewed their objection to retaining the juror. The trial court declined to excuse

the juror.

Amante and Lopez argue that the trial court committed reversible error by failing

to discharge the alternate juror, as she was biased and committed misconduct. Cardenas

and Higuera join the arguments. We address the alleged juror bias and misconduct

separately.

1. Alleged juror bias

Section 1089 provides in relevant part that “[i]f at any time, whether before or

after the final submission of the case to the jury, a juror dies or becomes ill, or upon other

good cause shown to the court is found to be unable to perform his or her duty, . . . the

court may order the juror to be discharged and draw the name of an alternate . . . .” A

juror may be excused for “ „implied bias‟ ” only for one of the reasons listed in Code of

Civil Procedure section 229, “ „and for no other.‟ ” (Code Civ. Proc., § 229; People v.

70

Ledesma (2006) 39 Cal.4th 641, 670.) “If the facts do not establish one of the grounds

for implied bias listed in that statute, the juror may be excused for „[a]ctual bias‟ if the

court finds that the juror‟s state of mind would prevent him or her from being impartial.

(Code Civ. Proc., § 225, subd. (b)(1)(C).)” (Ledesma at p. 670.) “A sitting juror‟s actual

bias that would have supported a challenge for cause also renders the juror unable to

perform his or her duties and thus subject to discharge.” (People v. Nesler (1997)

16 Cal.4th 561, 581.) We review a trial court‟s decision whether to discharge a juror for

abuse of discretion and will uphold the court‟s ruling if supported by substantial

evidence. (People v. Marshall (1996) 13 Cal.4th 799, 843.) “[A] juror‟s inability to

perform as a juror must „ “appear in the record as a demonstrable reality.” ‟ ” (Ibid.) We

conclude that the trial court did not abuse its discretion when it declined to discharge the

alternate juror.

Amante and Lopez argue that it was not reasonably possible that the alternate juror

could be impartial, due to her association with members of Ochoa‟s family. Their

arguments vastly overstate the connection between the juror and the people she believed

to be Ochoa‟s family members. Amante argues that the juror‟s “biases and sympathies

are particularly strong given the close kinship bonds at issue here, both with the juror‟s

own family and the defendant‟s family.” To the contrary, the people the juror saw on

weekends were only casual acquaintances she had recently met, and with whom she had

never been alone. People v. Tidwell (1970) 3 Cal.3d 62, upon which Amante relies in

arguing that the juror likely was biased, is inapposite. In reversing a murder conviction

in Tidwell because the trial court erred in denying a motion to change venue, our

Supreme Court observed that a juror who was an acquaintance of the victim could not be

expected to be impartial. (Id. at p. 73.) Here, by contrast, the alternate juror was not

acquainted with the victim (or any of the defendants, for that matter).

Lopez renews the argument his counsel made below that “the relationships

disclosed by Juror No. 1499 [the alternate juror] would „affect her ability to make a

judgment against Mario Ochoa and conversely make it easier for her to make a verdict

against any or all of the other defendants.‟ ” The argument that the alternate might be

71

biased toward Ochoa (and against the other defendants) is entirely speculative, especially

in light of her sworn statement that she was not concerned about how a verdict would

affect her relationship with people on her husband‟s soccer team and their wives, and that

Ochoa‟s relatives were “not really [her] friends.” We therefore disagree with Lopez‟s

argument that the alternate juror might have been motivated to be lenient on Ochoa (and

harsher on other defendants) because “her husband could blame her for any social fallout

that might result from a harsh verdict against Ochoa.”

Amante and Lopez both argue that we should give little weight to the alternate

juror‟s statements that she could serve as an impartial juror, as the excused juror reported

that the alternate did not feel comfortable serving on the jury. The dismissed juror

testified that his replacement had said in a joking way when he left the trial, “like, „Oh,‟

you know, „thanks a lot. I thought we were friends, and now I have to be a juror.‟ She

doesn‟t feel comfortable in this position.” The alternate, not the dismissed juror, was in

the best position to explain how she truly felt about continuing to serve on the jury.

When asked how she felt about being a juror, she stated, “Well, at first I didn‟t even think

about it because I wasn‟t sure who they were related to. And I actually thought about it

yesterday when I got put in the jury. And I‟m—I‟m trying to be really honest and really

fair, and I don‟t think it would affect me in any way.” After the juror answered the trial

court‟s questions, the court stated that the juror “was completely open,” and the court had

“no doubt that she was telling us exactly what the situation was. There was no hesitancy

to explain anything.”59

We see no reason to question this conclusion, and we similarly

disagree with Lopez‟s characterization of the alternate‟s responses to questions as

“inconsistent” and “confusing.” Reversal is not required under United States v. Allsup

(9th Cir. 1977) 566 F.2d 68, relied upon by Lopez, as there is no evidence (either direct

59

Amante and Lopez argue that the trial court failed to conduct a sufficient inquiry into

the alternate juror‟s alleged bias. To the contrary, the trial court thoroughly questioned

the juror, then followed up twice in order to clarify answers she had provided and also

questioned the bailiff the juror had consulted about her concerns. The court also solicited

questions from defendants‟ counsel. Because the trial court conducted such a thorough

inquiry, we consider inapposite the cases upon which Lopez relies.

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or circumstantial) in the present case that the alternate juror had a “substantial emotional

involvement” (cf. id. at p. 71) with casual acquaintances she met by attending her

husband‟s soccer games.

2. Alleged juror misconduct

A juror‟s misconduct is “good cause” to believe that the juror will not be able to

perform his or her duty. (§ 1089; People v. Daniels (1991) 52 Cal.3d 815, 864.) Juror

misconduct “leads to a presumption that the defendant was prejudiced thereby.”

(People v. Nesler, supra, 16 Cal.4th at p. 578; see also People v. Pierce (1979) 24 Cal.3d

199, 207.) “This presumption can be rebutted by a showing no prejudice actually

occurred or by a reviewing court‟s examination of the entire record to determine whether

there is a reasonable probability of actual harm to the complaining party.” (People v.

Loot (1998) 63 Cal.App.4th 694, 697.)

Amante argues that the alternate juror committed prejudicial misconduct by

discussing with another juror a “subject connected with the trial” (§ 1122, subd. (a))

when she discussed “her ongoing relationship with Ochoa‟s family” with the excused

juror, and when she had “[c]lose social interaction with a defendant‟s family.” (People v.

Loot, supra, 63 Cal.App.4th at pp. 697-698 [misconduct, although not prejudicial, for

juror to ask about prosecutor‟s personal life with nonjuror during trial and to express

curiosity about prosecutor to other jurors].) Although we again stress that Amante

overstates the extent and nature of the alternate‟s interactions with people believed to be

Ochoa‟s family members, we accept (as respondent apparently does) that she technically

committed “misconduct” by interacting with them after she recognized them in the

audience at trial and discussing that fact with other jurors. (People v. Jones, supra,

17 Cal.4th at p. 310 [misconduct, although “not egregious,” for jurors to communicate

with people associated with the case].) However, we agree with respondent that any such

misconduct was not prejudicial.

“Among the factors to be considered when determining whether the presumption

of prejudice has been rebutted are „the nature and seriousness of the misconduct, and the

probability that actual prejudice may have ensued.‟ ” (People v. Loot, supra,

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63 Cal.App.4th at p. 698.) In light of the fact that the alternate juror was not at first sure

that she recognized the audience members at issue, the fact that she was only casual

acquaintances with them, the fact that she never spoke with them about the trial and was

never alone with them, “[w]e do not believe [the juror‟s] conduct established as a

„demonstrable reality‟ her inability to perform the functions of a juror.” (Ibid.) We

likewise reject Lopez‟s argument that the alternate‟s “failure to disclose” her casual

relationship with trial spectators somehow undermined her claims that she could be

impartial. Ideally she should have raised the issue herself with the trial court; however,

she might not have done so based on her conversation with the bailiff. After the issue

was raised and the trial court questioned the juror, the court stated that the juror “was

completely open here,” and the court had “no doubt that she was telling us exactly what

the situation was.” Substantial evidence supports the trial court‟s decision to retain the

alternate, and we find no abuse of discretion.

F. Cumulative Effect of Alleged Errors.

Claiming that the cumulative effect of the errors he has identified on appeal

deprived him of a fair trial, Amante argues that the judgment should be reversed on that

basis. Cardenas and Higuera join in the argument. Having reviewed the record and

rejected defendants‟ arguments as set forth above, we disagree. (People v. Kipp (1998)

18 Cal.4th 349, 383 [issues raised on appeal did not singly or cumulatively establish

prejudice requiring reversal of convictions].)

G. Amante’s Presentence Custody Credits.

Amante argues, and respondent concedes, that the abstract of judgment omits his

presentence custody credits.60

Amante requests that his abstract of judgment be amended

to reflect the credits. He does not, however, state the custody credits to which he is

entitled. His presentence report stated that he was entitled to 1,177 days credit for time

60

The abstracts of judgment for the other defendants state their presentence custody

credits.

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served as of the date the report was prepared. The court did not address Amante‟s credits

when sentencing him, about six months after the preparation of the presentence report.

Section 1237.1 provides, “No appeal shall be taken by the defendant from a

judgment of conviction on the ground of an error in the calculation of presentence

custody credits, unless the defendant first presents the claim in the trial court at the time

of sentencing, or if the error is not discovered until after sentencing, the defendant first

makes a motion for correction of the record in the trial court.” Although it is true that

this court may consider a question about presentence custody credits absent an

appropriate motion with the trial court where other issues are raised on appeal (People v.

Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3), we are not compelled to do so.

(People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) We decline to exercise our

discretion to correct Amante‟s abstract of judgment in light of the fact that neither

Amante nor respondent identifies the correct number of presentence custody credits to

which he is entitled. Amante may make an appropriate motion in the trial court to correct

his abstract of judgment. (§ 1237.1.)

H. Cardenas’s Consecutive Sentence for Street Gang Enhancement.

The trial court sentenced Cardenas to a term of 25 years to life for his conviction

of first degree murder. (§ 190.5, subd. (b).) The court added an additional 10 years for

the gang participation enhancement (§ 186.22, subd. (b)(1)), for a total term of 35 years

to life.61

Cardenas argues that the addition of 10 years for the gang enhancement was

error. Respondent concedes that the trial court erred, and we agree.

Section 186.22, subdivision (b)(1) provides for an enhancement if a defendant is

convicted of a felony committed for the benefit of, at the direction of, or in association

with, any criminal street gang (with the specific intent to promote, further, or assist in

61

The trial court first stayed the enhancement, based on the fact that the basis for the

special circumstance was identical to the enhancement. The prosecutor then argued that

the trial court had the authority to impose 10 years pursuant to section 186.22,

subdivision (b)(1)(C), and the trial court imposed that sentence, stating that the evidence

supported the enhancement.

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criminal conduct by gang members). If the felony is a violent felony, the enhancement is

an additional 10 years in state prison. (§ 186.22, subd. (b)(1)(C).) However, if the

defendant is convicted of a felony punishable by life imprisonment, the enhancement

provides that the defendant shall not be paroled until a minimum of 15 years haszx been

served. (§ 186.22, subd. (b)(5).) “The determinate term enhancement provided for in

subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for

which a determinate term is proscribed; if the conviction is of a crime for which an

indeterminate term of life in prison is proscribed, the limitation upon parole eligibility

provided for in subdivision (b)(5) is applicable. If the parole limitation of

subdivision (b)(5) is applicable, the 10-year enhancement is not.” (People v. Fiu (2008)

165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1007, original

italics, fn. omitted.)

The trial court erred in imposing a 10-year enhancement pursuant to

section 186.22, subd. (b)(1)(C). Instead, the court should have imposed a limitation upon

Cardenas‟s minimum parole eligibility of 15 years, pursuant to section 186.22,

subdivision (b)(5).

III.

DISPOSITION

The 10-year enhancement imposed on Cardenas pursuant to section 186.22,

subdivision (b)(1), is ordered stricken. Cardenas‟s abstract of judgment shall be modified

to reflect a total sentence of 25 years to life, with a minimum parole eligibility of 15

years. The trial court is directed to prepare an amended abstract of judgment, and a

certified copy of the modified abstract shall be forwarded to the Department of

Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

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_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

People v. Amante (A113655)