THE PEOPLE, v. PETER JAMES AMANTE et al., - FDAP · Defendants Peter James Amante, Rogelio Javier Cardenas, ... 2 Defendants were tried along with Mario Ochoa-Gonzales ... (People
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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
72
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,
73
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.
74
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.
75
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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