Filed 11/18/15 P. v. Cruz-Santos and Zepeda-Onofre CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139860
v.
SIDONIO CRUZ-SANTOS and AGUSTIN                                      (Sonoma County
ZEPEDA-ONOFRE,                                                       Super. Ct. No. SCR609525)
         Defendants and Appellants.


         A jury found defendants Sidonio Cruz-Santos and Agustin Zepeda-Onofre guilty
of the second degree murder (Pen. Code, § 1871) of Gabino Lopez-Santiago (Gabino),
unlawful cultivation of marijuana (Health & Saf. Code, § 11358), and three counts of
assault with a firearm (§ 245, subd. (a)(2)). Cruz-Santos was also found guilty of
threatening a person in an attempt to dissuade that person from testifying (§ 136.1, subd.
(c)(1)). The jury further found true a number of firearm-related enhancement allegations.
The trial court imposed aggregate state prison terms of 42 years and 8 months to life for
Cruz-Santos, and 25-years to life for Zepeda-Onofre.
         Cruz-Santos contends: (1) the testimony of an accomplice—whom the jury should
have been instructed was an accomplice as a matter of law—was insufficiently
corroborated; (2) the trial court erred in excluding evidence that pointed to the culpability
of an unnamed third party; (3) the trial court misinstructed the jury on the issues of

         1
             Statutory references are to the Penal Code unless otherwise indicated.


                                                             1
accomplice credibility and third party culpability; and (4) the trial court erred in not
staying the cultivation and one of the assault counts, as required by section 654. The
primary contention of both Cruz-Santos and Zepeda-Onofre is that the jury was
misinstructed with an erroneous legal theory, namely, that the murder could be the
natural and probable consequence of illegal marijuana cultivation or a conspiracy to
illegally cultivate marijuana. During the pendency of these appeals, our Supreme Court
decided People v. Smith (2014) 60 Cal.4th 603 (Smith), which, in supplemental briefing,
Cruz-Santos and Zepeda-Onofre claim as new and decisive support for their last
argument. We conclude that no prejudicial error has been established, and thus we affirm
the judgments of conviction.
                                     BACKGROUND
       We review the trial record in the light most favorable to the prosecution and in
support of the judgments. (People v. Jennings (2010) 50 Cal.4th 616, 638–639.) In any
event, much of the salient details are not in material dispute.
       In October 2011, Ramon Lopez-Velasco spent several days as a casual laborer
working at a location on Chemise Road outside Healdsburg. Lopez-Velasco was hired by
Cruz-Santos, and worked alongside Zepeda-Onofre cultivating marijuana plants and
putting marijuana in bags for transportation “to the place where they kept more
marijuana.” Lopez-Velasco was told by Cruz-Santos that the marijuana was “medical.”
       Lopez-Velasco soon realized that firearms were a constant presence. Zepeda-
Onofre was wearing a handgun when he first met Lopez-Velasco, and Cruz-Santos told
Zepeda-Onofre to get a gun for Lopez-Velasco. Zepeda-Onofre did so, and showed
Lopez-Velasco how to load the weapon. Cruz-Santos told Lopez-Velasco “to carry that
gun with me in case of an emergency. If something were to happen during the nighttime
because . . . there are wild animals and there are people whose objective is to steal the
harvest.” Cruz-Santos brought Lopez-Velasco to the site at night because, as Zepeda-
Onofre told him, “it was better to travel at night so that nobody saw us.” With Zepeda-




                                              2
Onofre, Lopez-Velasco stayed overnight at the site, the handgun by his side. Cruz-Santos
and Zepeda-Onofre were usually armed.2 Lopez-Velasco also saw a pair of rifles.
       On Friday, Lopez-Velasco told Cruz-Santos that he (Lopez-Velasco) would be
returning to his regular job on Monday. As the afternoon was ending, Cruz-Santos,
Zepeda-Onofre, and Lopez-Velasco were joined at the Chemise Road site by three men—
Conrado Cruz (Conrado), Gabino (who was Lopez-Velasco’s brother-in-law), and a man
named “Angel.”3 Food, beer, and cocaine were consumed.4 At one point Cruz-Santos
became so irritated at someone riding an all-terrain vehicle nearby that he ordered
Zepeda-Onofre “to shoot the gun” “to frighten those assholes . . . so that they would
leave” “and stay way [sic] from the place.” Zepeda-Onofre dutifully fired a single shot.
Everyone was drinking. Later, angry words began to be exchanged between Conrado and
Gabino. Things became so heated that Cruz-Santos drew his gun and told the pair: “If
you have problems in your house then go fix them in your house. But don’t come here
and give me problems. Because the devil is touching me and I can be capable of
anything.” These words made Conrado afraid and receptive to Lopez-Velasco’s urging
that they should leave. Conrado and Gabino were sufficiently “drunk they [had] a
difficult time walking properly.” Cruz-Santos and Zepeda-Onofre were “not totally”
intoxicated. Conrado was also disoriented, and had previously “lost consciousness.”
       Lopez-Velasco testified that Conrado started to walk away, but not toward the
“only one way” to exit the site. With gun in hand, Cruz-Santos blocked his way “telling
him that was the wrong way to take.” But Conrado “was stubborn,” saying “that that was
the way he had originally come from.” Cruz-Santos “kept on insisting that wasn’t the
       2
        According to a neighbor who was also growing marijuana, “Ramon” was present
at a conversation between the neighbor and Cruz-Santos sometime in mid-October.
During the conversation, Cruz-Santos was holding a rifle, and fingering “part of a
packaging with three or four bullets in it” while expressing fear of being robbed.
       3
         An olive grower testified that Conrado “was a laborer who worked for me on and
off for several years,” and sometimes brought Gabino “if he [Conrado] needed additional
assistance with the job.”
       4
        The blood taken from Cruz-Santos and Zepeda-Onofre shortly after the murder
tested positive for cocaine; Lopez-Velasco’s blood did not.

                                            3
way that he had originally come from.” After a few minutes of this, Lopez-Velasco—
who described himself as “the only person . . . there in his five senses”—led the
stumbling Conrado and Gabino out of what they called “the garden” and towards the
driveway off the property. Cruz-Santos and Zepeda-Onofre followed them.
       According to Lopez-Velasco, when the group reached the driveway, “Mr. Conrado
explained to me that he was very drunk . . . that he wasn’t able to drive. He gave me his
keys in order to go get his truck from where it had been . . . parked.” As Lopez-Velasco
started to retrieve Conrado’s truck, he heard Cruz-Santos and Zepeda-Onofre “walking
towards the driveway where we were standing,” and then saw them standing next to a car
parked on the driveway, which was near to where Lopez-Velasco had left Conrado and
Gabino. About two minutes later, Lopez-Velasco heard three or four gunshots, but he
continued walking to get Conrado’s truck.
       Lopez-Velasco explained what then happened: “When I came back with the
truck . . . I was able to see that . . . Mr. Sidonio [Cruz-Santos] had Conrado on the ground
with the gun to his head.” [¶] . . . [¶] “I stopped the truck as fast as I could, and I ran
towards where Mr. Sidonio was, grabbing Mr. Conrado.” [¶] . . . [¶] “When I was
getting closer to them I could listen to what he was saying, not to say anything of what
Conrado had seen, because he was capable of finding him or his family and kill them.”
Lopez-Velasco pushed Cruz-Santos off Conrado. Cruz-Santos “put the gun twice, one in
the head and on my chest.” Lopez-Velasco asked Cruz-Santos “where Gabino was.”
Cruz-Santos replied “Gabino had gone to hell.” When Lopez-Velasco asked “why?”,
Cruz-Santos answered “because I want[ed] to.” Spotting “a lot of blood” on the
driveway, Lopez-Velasco again asked “where Gabino was,” and Cruz-Santos told
Zepeda-Onofre to “show [him] where Gabino was.”
       Zepeda-Onofre appeared with a gun in his hand—“the same gun that they were
carrying that same day.” [¶] . . . [¶] “With his right hand he was holding the gun, and
with his left hand he was indicating where he wanted me to walk to.” After walking a
short distance, Zepeda-Onofre told Lopez-Velasco to “look down.” [¶] . . . [¶] “It was
Gabino’s body.” At this point, “Sidonio [Cruz-Santos] with weapon in hand ordered Mr.


                                               4
Conrado that he help me get the body out of there.” Cruz-Santos actually said: “get that
garbage out of there [¶] . . . [¶] to tear him apart or to bury him, but he didn’t want to
know anything of what . . . happened. And if I said something or if I whispered
something, that he was going to find me here or in Mexico and my family to do the same
to me. I asked him why he had done it.” Cruz-Santos’s response: “Just because he
wanted [to do] it.”
       While Cruz-Santos and Zepeda-Onofre “were pointing at me with the gun,”
Lopez-Velasco and Conrado managed to get Gabino’s body into the truck. Conrado
refused to get into the truck with Lopez-Velasco, at which point, “[w]hen I realized that
he didn’t want to get in the truck I ran towards the driver’s seat . . . to get out of there as
fast . . . as I could.” Lopez-Velasco drove for about an hour, dumped the body by the
road, and then notified Healdsburg police. The version Lopez-Velasco provided to police
had significant lies and omissions.
       Lopez-Velasco further testified that he did not see either Conrado or Gabino with
a gun that night.
       Following the initial interview with Lopez-Velasco, in which he told police he
thought Conrado might also be dead, officers immediately went to Conrado’s home,
where they found him unhurt but generally nervous. Conrado voluntarily went with the
officers to a police station “to be asked more questions about why Gabino wasn’t at the
house.” It was still night when Lopez-Velasco led other officers to the Chemise Road
property, where he pointed out the bloodstain on the driveway and the “marijuana
garden.” According to one of the officers, Lopez-Velasco was “very nervous about going
back there,” and “very afraid” when on the premises showing the layout to the officers.
At about 5:00 a.m., the officers met Zepeda-Onofre driving a truck down the driveway.
Although it was still dark, and although he was out of sight in the back of a police
vehicle, Lopez-Velasco was described as “terrified” while he identified Zepeda-Onofre
(who had been taken out of the truck and was being guarded while sitting on the ground
in front of the truck, but within Lopez-Velasco’s line of sight). And when Cruz-Santos
was apprehended in another vehicle on the premises and brought to the scene, one officer


                                               5
testified that “I recall him [Lopez-Velasco] trying to . . . duck down and make himself not
visible when Sidonio was around.”
       The officers then searched the site and found three bags of dried marijuana, and
considerable amounts of “dried or drying marijuana.”5 As the officers were walking
down the driveway, Cruz-Santos’s car drove up and stopped. The car was being driven
by a man Lopez-Velasco did not recognize. Cruz-Santos was not in it. Blood splatter
marks were visible on the vehicle, as well as “smear marks where it looked like
somebody had wiped it up.” The truck driven by Zepeda-Onofre also gave proof of
recent bloody use. One officer testified that “I saw dry blood in the bed portion of the
pickup truck, and I also saw drag marks which looked like whatever was in the back of
the truck was dragged toward the tailgate end . . . of the pickup truck.” Also found were
a loaded rifle and ammunition of various calibers.
       A prosecution expert, Detective Brandon Van Camp, testified that the cultivation
on Chemise Road was an illegal, non-medicinal, commercial operation, designed to
evade aerial detection. He estimated the street value of the marijuana was at least $800
per pound. When asked “What is your training and experience, if any, with regard to
firearms in marijuana grows?”, the expert replied: “Well, definitely of all the outdoor
marijuana grows that I have been in and certainly most of the training that I’ve been to,
there are definitely firearms are involved with outdoor marijuana gardens.” There are
“multiple reasons” for the connection: “One is to protect and defend the garden from
intruders. Two is to protect it from wildlife” such as deer and rats.
       The jury heard forensic testimony that Gabino was shot twice—once in the face
and once in the chest—and that either shot would be fatal.
                                         REVIEW
       Because it has the most obvious potential to require reversal, we will first address
the contention that defendants were convicted of a legally untenable theory of second
degree murder.

       5
       Officers subsequently searching the premises pursuant to a warrant found a
hidden rifle and approximately180 pounds of marijuana.

                                             6
                                   The Legal Principles
       “ ‘Penal Code section 31, which governs aider and abettor liability, provides in
relevant part, “All persons concerned in the commission of a crime, whether it be felony
or misdemeanor, and whether they directly commit the act constituting the offense, or aid
and abet in its commission . . . are principals in any crime so committed.” An aider and
abettor is one who acts “with knowledge of the criminal purpose of the perpetrator and
with an intent or purpose either of committing, or of encouraging or facilitating
commission of, the offense.” [Citations.]’ ‘[A] person who aids and abets the
commission of a crime is a “principal” in the crime, and thus shares the guilt of the actual
perpetrator.’ [Citation.]”
       “An aider and abettor is guilty not only of the intended, or target, crime but also of
any other crime a principal in the target crime actually commits (the nontarget crime) that
is a natural and probable consequence of the target crime. [Citations.] ‘Thus, for
example, if a person aids and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a natural and probable
consequence of the intended assault.’ [Citation.]
       “A consequence that is reasonably foreseeable is a natural and probable
consequence under this doctrine. ‘A nontarget offense is a “ ‘natural and probable
consequence’ ” of the target offense if, judged objectively, the additional offense was
reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider
and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability “ ‘is
measured by whether a reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted.’ ” [Citation.] Reasonable foreseeability “is a factual issue to
be resolved by the jury.” [Citations.]’ ” (Smith, supra, 60 Cal.4th at p. 611.)
       But the reach of the natural and probable consequences doctrine is limited to
second degree murder. “[A]n aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable consequences doctrine. Rather, his
or her liability for that crime must be based on direct aiding and abetting principles.”


                                              7
(People v. Chiu (2014) 59 Cal.4th 155, 158–159.) “In the context of murder, the natural
and probable consequences doctrine serves the legitimate public policy concern of
deterring aiders and abettors from aiding or encouraging the commission of offenses that
would naturally, probably, and foreseeably result in an unlawful killing. A primary
rationale for punishing such aiders and abettors—to deter them from aiding or
encouraging the commission of offenses—is served by holding them culpable for the
perpetrator’s commission of the nontarget offense of second degree murder.” (Id. at
p. 165.) “[P]unishment for second degree murder is commensurate with a defendant’s
culpability for aiding and abetting a target crime that would naturally, probably, and
foreseeably result in a murder under the natural and probable consequences doctrine.”
(Id. at p. 166.)
       “The statutes and, accordingly, the natural and probable consequence doctrine, do
not distinguish among principals on the basis of whether they directly or indirectly aided
and abetted the target crime, or whether they directly or indirectly aided and abetted the
perpetrator of the nontarget crime. An aider and abettor of the target crime is guilty of
any crime that any principal in that target crime commits if it was a natural and probable,
i.e., reasonably foreseeable, consequence of the target crime. [¶] . . . [¶] . . . To
establish aiding and abetting liability under the natural and probable consequence
doctrine, the prosecution must prove the nontarget offense was reasonably foreseeable; it
need not additionally prove the nontarget offense was not committed for a reason
independent of the common plan to commit the target offense.” (Smith, supra, at pp.
613–614.)
                                  The Instructions Given
       The jury was initially instructed with a modified version CALCRIM Nos. 417 and
402 as follows:
       “A member of a conspiracy is criminally responsible for the crimes that he or she
conspires to commit no matter which member of the conspiracy commits the crime. A
member of a conspiracy is also criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that act is a natural and


                                              8
probable consequence of a common plan or design of the conspiracy. This rule applies
even if the act was not intended as part of the original plan. Under this rule, a defendant
who is a member of the conspiracy does not need to be present at the time of the act.
       “A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all the circumstances established by the evidence.
       “A member of a conspiracy is not criminally responsible for the act of another
member if that act does not further the common plan or is not a natural and probable
consequence of the common plan.
       “To prove that the defendant is guilty of a crime of murder charged in Count 1, the
People must prove that the defendant conspired to commit illegal cultivation of
marijuana, a member of the conspiracy committed the murder to further the conspiracy,
and murder was a natural and probable consequence of the common plan or design of the
crime that the defendant conspired to commit.”
       “The defendants are charged in Count 1 with murder, in Count 3 with illegal
cultivation of marijuana, and in counts 4 and 6 with assault with a firearm. It is also
alleged, although not charged, that the defendants committed the crime of brandishing a
firearm in violation of Penal Code Section 417(a)(1).
       “You must first decide whether the defendant is guilty of illegal cultivation of
marijuana, assault with a firearm or brandishing a firearm. These will be called the target
offenses. If you find the defendant is guilty of any of these crimes, you must then decide
whether that defendant is guilty of murder.
       “Under certain circumstances, a person who is guilty of one crime may also be
guilty of other crimes that were committed at the same time. To prove that the defendant
is guilty of murder under this theory, the People must prove that the defendant is guilty of
one of the target offenses; during the commission of the target offenses, a co-participant
in that crime committed the crime of murder; and under all of the circumstances, a
reasonable person in the defendant’s position would have known that the commission of



                                              9
murder was a natural and probable consequence of the commission of the
target . . . offenses he committed.
       “A co-participant in a crime is the perpetrator or anyone who aided and abetted the
perpetrator. It does not include a victim or innocent bystander.
       “A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all the circumstances established by the evidence.
       “If the murder was committed for any reason independent of the common plan to
commit the target offense or offenses, then the commission of murder was not a natural
and probable consequence of those offenses. [¶] . . . [¶]
       “To decide whether target offenses . . . were committed, please refer to the
separate instructions that I will provide for those crimes.”
       After the jury had been deliberating for three days, the court modified CALCRIM
No. 417 with the following: “[T]o prove that a defendant is guilty of the crimes of
Assault with a Deadly Weapon, charged in Counts IV and VI, under a conspiracy theory,
the People must prove that: 1. The defendant conspired to commit Illegal Cultivation of
Marijuana; 2. A member of the conspiracy committed the Assault with a Deadly Weapon
to further the conspiracy; AND 3. The Assault with a Deadly Weapon was a natural and
probable consequence of the common plan or design of the crime that the defendant
conspired to commit.
       “The defendant is not responsible for the acts of another person who was not a
member of the conspiracy even if the acts of the other person helped accomplish the goal
of the conspiracy. A conspiracy member is not responsible for the acts of other
conspiracy members that are done after the goal of the conspiracy has been
accomplished. *Conspiracy and aiding and abetting theories of culpability are to be




                                             10
determined separately, following instruction 417 and instruction 402 which individually
define these theories.”6
                                   The Initial Arguments
       In their initial briefing, defendants contend that the prosecution’s whole reading of
the case was off-kilter and misplaced. As Zepeda-Onofre terms it, the jury was given an
“invalid theory of liability,” namely, “murder could be a natural and probable
consequence of illegal marijuana cultivation or of a conspiracy to illegally cultivate
marijuana.” Cruz-Santos covers the same ground from a slightly different angle: the
prosecution’s theory for murder was defective “because there was insufficient evidence
of the necessary factual predicate, namely, that murder is a natural and probable
consequence of a conspiracy to cultivate marijuana.” Zepeda-Onofre joins this argument.
Cruz-Santos goes on to attack the court’s instructions because they “failed to instruct on
the necessary element of malice.”
       In varying degrees, both defendants approach the issue of whether murder can be a
natural and probable consequence of marijuana cultivation as something of a theoretical
abstraction akin to an issue of law.7 It is not. When it has the support of substantial
evidence, “the issue is a factual question to be resolved by the jury in light of all of the
circumstances surrounding the incident.” (People v. Nguyen (1993) 21 Cal.App.4th 518,
531.) This is the rule for both co-conspirator and aider and abettor liability. (See, e.g.,
Smith, supra, at p. 611; People v. Prettyman (1996) 14 Cal.4th 248, 269; People v.



       6
        The modification appears to have been prompted by this question from the jury:
“If we decide there was a conspiracy to unlawfully cultivate, does the liability of
coconspirators apply to the murder charge only? Or, does it apply to all charges that we
determine are natural & probable consequences of the conspiracy?”
       7
        And both focus on only one of the three target offenses identified in the
instructions. This could be deemed an implicit concession that the two other target
offenses—assault with a firearm and brandishing a firearm—identified in the instructions
as target offenses—were sound. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,
§ 342, p. 392, § 512, pp. 577–578.) However, we elect to address the merits of
defendants’ arguments.

                                              11
Olguin (1994) 31 Cal.App.4th 1355, 1376; People v. Luparello (1986) 187 Cal.App.3d
410, 442–443.)
       True, our Supreme Court has repeatedly refused to accept that running a large
scale drug operation necessarily entails murder. (People v. Hinton (2006) 37 Cal.4th 839,
880 [“Nor do we accept defendant’s suggestion that murder was a natural and probable
consequence of any drug deal ‘involving a large sum of money.’ ”]; People v. Garceau
(1993) 6 Cal.4th 140, 183 [“[t]he record clearly fails to establish, as a matter of law, that
the killings were a ‘reasonably foreseeable’ consequence of the methamphetamine
manufacturing operation conducted on the Rambos’ property.”]) This follows from the
nature of the crucial inquiry: “ ‘[T]he ultimate . . . question is one of foreseeability.’
[Citation.] Thus, ‘ “[a] natural and probable consequence is a foreseeable
consequence”. . . .’ [Citation.] But ‘to be reasonably foreseeable “[t]he consequence
need not have been a strong probability; a possible consequence which might reasonably
have been contemplated is enough . . . .” [Citation.]’ [Citation.] A reasonably
foreseeable consequence is to be evaluated under all the factual circumstances of the
individual case . . . and is a factual issue to be resolved by the jury.” (People v. Medina
(2009) 46 Cal.4th 913, 920 (Medina).) “The precise consequence need not have been
foreseen. . . . [¶] . . . The issue is ‘whether, under all of the circumstances presented, a
reasonable person in the defendant’s position would have or should have known that the
[shooting] was a reasonably foreseeable consequence of the act . . . .’ ” (Id. at p. 927.) In
other words, the issue is seldom one of law, almost always one of fact.
       “A jury finding of reasonable foreseeability provides the crucial nexus that links a
defendant’s culpability for aiding and abetting the target offense to his criminal liability
for the nontarget offense. Without that nexus, there is no basis—no legally sufficient
theory of causation—to find the defendant culpable for the nontarget offense. Our cases
have thus recognized, without exception, that ‘the trier of fact must . . . find that . . . the
offense committed by the confederate was a natural and probable consequence of the
target crime that the defendant aided and abetted.’ ” (People v. Favor (2012) 54 Cal.4th
868, 882.)


                                               12
       So, when Zepeda-Onofre argues that the trial court’s instructions “were
erroneous . . . because a jury cannot reasonably find that a murder committed by a
defendant’s confederate was a natural and probable consequence of marijuana cultivation
because there is not a sufficiently close connection between the target crime and
commission of murder,” he is rather plainly asking this court to decide, as a matter of
law, that murder can never be a natural and probable consequence of cultivating
marijuana.
       We reject the request. A tie between gunshot death and the clandestine
commercial cultivation of marijuana may not be inevitable, but the possibility of a
connection has been around at least since People v. Dillon (1983) 34 Cal.3d 441, where
the defendant was convicted of murder for killing the guard at a marijuana farm.
Whether the connection between that offense is a sufficient nexus to foreseeability and
liability for murder is a matter of the evidence, which is ordinarily left to the jury when
there is substantial evidence. (People v. Prettyman, supra, 14 Cal.4th 248, 269.) And the
presence of substantial evidence is to be explored with generosity to the inferences,
credibility determinations, and weighing of the evidence that favor the prosecution.
(People v. Jennings, supra, 50 Cal.4th at pp. 638–639.) This is also the governing
approach when the prosecution relies on circumstantial evidence. (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
       To repeat, the question is not whether homicide was the most likely consequence
or the most foreseeable. Nor is the issue whether murder was even a statistically strong
probability. All that is needed is substantial evidence that death was “ ‘ “a possible
consequence which might reasonably have been contemplated.” [Citation.]’ ” (Medina,
at pp. 920, 927.) That there was.
       The jury could conclude from the prosecution’s evidence that there was the
possibility of gun violence inhered in the marijuana operation. From the testimony of
Lopez-Velasco, corroborated in part by Detective Van Camp, the jury could conclude
that workers commonly carried loaded firearms with the expectation that they might be
needed and were expected to be used. From the incident when Zepeda-Onofre obeyed


                                             13
the command of Cruz-Santos to “frighten those assholes” making too much noise, the
jury could further conclude that neither defendant was averse to having a gun fired at
persons who caused irritation. From the incident when the drunken Cruz-Santos
brandished his firearm to halt the dispute between Cruz and Lopez-Santiago, the jury
could conclude that Cruz-Santos had no inhibition about threatening to use his gun to halt
irritation coming from an even closer source, that is, one not coming from an intruder or
thief, but emanating from within the garden itself. And from defendants’ use of their
guns to kill Gabino and then to coerce Lopez-Velasco and Conrado into disposing of the
bodies, the jury could conclude that defendants had no compunctions about using deadly
force in order to compel compliance from employees at the very place they were
cultivating marijuana.
       Then there is the factor of intoxicants. The jury heard evidence from which it
could conclude that defendants had ingested cocaine and alcohol. It is not inevitable that
near or semi-intoxication will result in death by gunshot. But when the people
intoxicated are more or less continually armed because they are engaged in a criminal
enterprise, and when the threat of violence—particularly the use of those guns—is not
treated as significant, a jury could conclude that this was a witch’s brew of circumstances
where a drunken disagreement could escalate.
       In these circumstances, it was certainly a reasonably foreseeable consequence that
death might result from either brandishing a firearm or committing an assault with it.
(Smith, at pp. 611, 617.) And when the context of the circumstances is cultivating
marijuana, it cannot be excluded from consideration. Murder need not be actually
foreseen. (Smith, at p. 611.) It need not be the most likely outcome, or even a more
likely than not probability.8 (Medina, supra, at p. 920.) Like our Supreme Court, we are

       8
        Our Supreme Court in Smith identified an additional consideration: “To be sure,
whether an unintended crime was the independent product of the perpetrator’s mind
outside of, or foreign to, the common design may, if shown by the evidence, become
relevant to the question whether that crime was a natural and probable consequence of
the target crime. In a given case, a criminal defendant may argue to the jury that the
nontarget crime was the perpetrator’s independent idea unrelated to the common plan,

                                            14
not deciding that death is a natural and probable consequence of running a marijuana
cultivation farm. We decide only that in the circumstances attending the manner in
which defendants organized and operated this cultivation operation, there was substantial
evidence from which the jury could conclude that death was “a possible consequence
which might reasonably have been contemplated.” (Medina, at pp. 920, 927.)
       Cruz-Santos’s attack on the instructions requires only brief comment. He
contends that CALCRIM No. 417 “[w]as erroneous, because it failed to instruct the jury
that it could not convict appellant of murder unless it found malice.” True enough, but
the trial court also instructed the jury with CALCRIM No. 520 to the effect that to
convict either defendant of murder required malice and finding the natural and probable
consequence of a target offense constituted implied malice.9 Instructions are not to be
considered in isolation, but regarded in their entirety from the common sense perspective
of the jury. (Middleton v. McNeil (2004) 541 U.S. 433, 437; People v. Castaneda (2011)
51 Cal.4th 1292, 1320–1321.) Thus, the jury was instructed as Cruz-Santos desires. We
therefore conclude that he has failed to “demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.” (People v. Cross (2008)
45 Cal.4th 58, 67–68; accord, People v. Solomon (2010) 49 Cal.4th 792, 822; Boyde v.
California (1990) 494 U.S. 370, 380.)

and thus was not reasonably foreseeable and not a natural and probable consequence of
the target crime.” (Smith, at p. 617.) Defendants did not adopt this approach, possibly
because neither was willing to go beyond the hypothetical and actually identify who was
“the perpetrator” that killed the victim.
       9
        “The defendant is charged in Count 1 with murder in violation of Penal Code
Section 187. To prove that a defendant is guilty of this crime, the People must prove that
(1) the defendant committed an act that caused the death of another and (2) when the
defendant acted, he had a state of mind called malice aforethought. [¶] There are two
kinds of malice aforethought: express malice and implied malice. Proof of either is
sufficient to establish the state of mind required for murder. [¶] The defendant acted
with express malice if he unlawfully intended to kill. The defendant acted with implied
malice if (1) he intentionally committed an act; (2) the natural and probable consequences
of the act were dangerous to human life; (3) at the time he acted, he knew his act was
dangerous to human life; and (4) he deliberately acted with conscious disregard for
human life.”

                                            15
                               The Supplemental Argument
       As previously shown, the jury was instructed with CALCRIM No. 402 that “If the
murder was committed for any reason independent of the common plan to commit the
target offense or offenses, then the commission of murder was not a natural and probable
consequence of those offenses.” In Smith, our Supreme Court determined that the gist of
this sentence was error:
       “This sentence, if correct, would mean that a nontarget offense, even if reasonably
foreseeable, is not the natural and probable consequence of the target offense if the jury
finds it was committed for a reason independent of the common plan to commit the target
offense. . . . [¶] . . . Both parties argue that the sentence does not correctly state the law.
We agree. To establish aiding and abetting liability under the natural and probable
consequence doctrine, the prosecution must prove the nontarget offense was reasonably
foreseeable; it need not additionally prove the nontarget offense was not committed for a
reason independent of the common plan to commit the target offense.” (Smith, at
pp. 613–614.)
       In supplemental briefing (which Cruz-Santos joins), Zepeda-Onofre explains why
he believes this error infected his trial: “[The trial] court instructed on a coconspirator’s
liability under the natural and probable consequences doctrine for unplanned
offenses . . . committed by another member of the conspiracy, but the court’s instruction
failed to include the directive that Smith found essential, that a coconspirator was not
liable for an unplanned crime that was a fresh and independent product of the mind of
another conspirator that fell outside the common design to illegally cultivate marijuana.”
       But the error identified in Smith is one that disadvantages the prosecution, not the
defendant: “If the prosecution can prove the nontarget crime was a reasonably
foreseeable consequence of the crime the defendant intentionally aided and abetted, it
should not additionally have to prove the negative fact that the nontarget crime was not
committed for a reason independent of the common plan.” (Smith, at p. 617.) This was
why the court concluded that “because the sentence was unduly favorable to defendant,
giving it cannot have harmed him.” (Ibid.)


                                              16
       The Smith court went on to consider “whether substantial evidence supports
defendant’s murder convictions under the natural and probable consequence
doctrine. . . . [¶] Defendant contends the evidence was insufficient because the jury
could not determine for sure who committed the two murders. The prosecution theory
was that Littleton was the killer. But exactly who shot and killed the two victims was not
entirely clear. There was evidence that both Littleton and Tovey possessed guns and
fired shots. It was not certain which gun Littleton used and which gun Tovey used. But
any such uncertainty did not matter as long as the jury unanimously agreed, as to each
killing, that, whoever the actual gunman was, that gunman both committed murder, i.e.,
killed a human being with malice (Pen. Code, § 187), and was a principal in the target
crimes. If the jury made those findings and also found that defendant aided and abetted
the commission of the target crimes, and the murders were a natural and probable
consequence of the target crimes, it could convict defendant of the murders despite
uncertainty as to who exactly the killer was.” (Smith, at p. 617.)
       “ ‘ “[A]s long as each juror is convinced beyond a reasonable doubt that defendant
is guilty of murder as that offense is defined by statute, it need not decide unanimously
by which theory he is guilty. [Citations.] More specifically, the jury need not decide
unanimously whether defendant was guilty as the aider and abettor or as the direct
perpetrator . . . . [¶] . . . [¶] Not only is there no unanimity requirement as to the theory
of guilt, the individual jurors themselves need not choose among the theories, so long as
each is convinced of guilt. Sometimes . . . the jury simply cannot decide beyond a
reasonable doubt exactly who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other.” [Citations.] Defendant contends
that different facts would support aiding and abetting liability and liability as a direct
perpetrator, but, as we have explained, the jury need not unanimously agree “on the
precise factual details of how a killing under one or the other theory occurred in order to
convict defendant of first degree murder.” [Citation.] Naturally, in order to return a
guilty verdict, the jury must agree unanimously that each element of the charged crime


                                              17
has been proved, but the factors that establish aiding and abetting liability are not
included as elements of the crime of murder. [Citation.]” [Citation.]’
       “ ‘The jury must agree on a “particular crime” [citation]; it would be unacceptable
if some jurors believed the defendant guilty of one crime and others believed her guilty of
another.’ [Citation.] In this case, this means that ‘the jury must unanimously agree on
guilt of a specific murder’—McCarthy’s murder in one count and Hunt’s murder in
another. [Citation.] But additional unanimity is not required. [Citation.] ‘Once the
discrete event is identified, for example, the killing of a particular human being, the
theory each individual juror uses to conclude the defendant is criminally responsible need
not be the same and, indeed, may be contradictory.’ [Citation.] It suffices if the jury
unanimously agrees that the prosecution has proven beyond a reasonable doubt every
element necessary to establish guilt of a discrete crime. [¶] . . . Although substantial
evidence would support a verdict on that basis, we are not so sure that was the sole basis
for the verdict given the uncertainty in the evidence and the trial court's instructions. The
court instructed the jury that its ‘verdict’ on each count had to be unanimous, but it gave
no other unanimity instruction. It is possible that one or more of the jurors were not
entirely certain exactly who fired the fatal shots, but all were convinced beyond a
reasonable doubt that, whoever he was, he acted with malice and thus committed murder.
       “As we have explained, that finding, if combined with the other findings beyond a
reasonable doubt necessary to convict—that whoever committed the murder was a
principal in the target crimes, that defendant aided and abetted the target crimes, and that
the murders were a natural and probable consequence of the target crimes—would mean
each juror was convinced beyond a reasonable doubt that defendant was guilty of murder.
No additional unanimity is required. The jury certainly had to find that someone
committed murder. But the ‘jury simply did not have to find’ exactly who that person
was. [Citation.] . . .
       “Applying these rules here, the jury could readily have found as to each murder
charge that the actual killer, whether he was Littleton or Tovey Moody or some other
member of Pueblo Bishop, committed a discrete murder, i.e., that he killed McCarthy as


                                             18
to one count and Hunt as to another, and that he acted with malice regarding each killing.
The jury could also have reasonably found that all of the possible shooters were aiders
and abettors, and therefore principals, in the target offenses. Each juror could reasonably
reject the possibility that some stranger to the jump out happened to come by at that
moment and fired the fatal shots. The evidence also fully supported a finding that
defendant aided and abetted the target offenses. Accordingly, the jury could reasonably
find defendant guilty of the nontarget murders if they were the natural and probable
consequence of the target offenses.” (Smith, at pp. 618–619.)
       These principles are not hard to apply here. Unlike Smith, this prosecution
involved only one murder. On their verdicts for count one, the jury found Cruz-Santos
and Zepeda-Onofre guilty of the second degree murder of Gabino. The verdicts do not
identify who pulled the trigger: each verdict shows the jury’s finding “Not True” the
allegations that each defendant “personally and intentionally discharged a firearm which
caused great bodily injury or death to Gabino Lopez-Santiago.” But the verdicts also
recorded the jury’s findings that each defendant “personally used a firearm” and that “in
the commission . . . of the above offense [Gabino’s murder], a principal in said offense
was armed with a firearm, to wit: a Handgun.” Thus, although the jury did not specify
which defendant fired the fatal shots, the jury did conclude that both Cruz-Santos and
Zepeda-Onofre were principals in the murder.
                           Witness Intimidation Instructions
       Section 136.1, subdivision (a)(1) penalizes a person who “[k]knowingly and
maliciously” prevents, dissuades, or attempts to prevent or dissuade, “any witness or
victim from attending or giving testimony at any trial, proceeding, or inquiry authorized
by law.” Subdivision (c)(1) elevates any of these acts to a felony when “accompanied by
force or by an express or implied threat of force or violence.” Cruz-Santos was convicted
of violating section 136.1, subdivision (c)(1). He makes a number of claims as to why
this conviction must be overturned.
       The jury was instructed with CALCRIM No. 252 that this was a general intent
offense. Cruz-Santos contends this was error. “The crime of attempting to dissuade a


                                            19
witness from testifying is a specific intent crime. [Citation.] ‘Unless the defendant’s acts
or statements are intended to affect or influence a potential witness’s or victim’s
testimony or acts, no crime has been committed . . . .’ ” (People v. Wahidi (2013)
222 Cal.App.4th 802, 806.) Because this was misinstruction on an element of the
offense, Cruz-Santos correctly identifies this as error of federal constitutional magnitude.
(Neder v. U.S. (1999) 527 U.S. 1, 15; People v. Gonzalez (2012) 54 Cal.4th 643, 662–
663.) This error has been held harmless in instances where the defendant’s statements or
acts are not ambiguous, but clearly convey an explicit warning. (People v. Jones (1998)
67 Cal.App.4th 724, 727–728; People v. Brenner (1992) 5 Cal.App.4th 335, 339–340.)
Virtually at the same moment Cruz-Santos was ordering Lopez-Velasco to dispose of the
victim’s body, while tapping Lopez-Velasco on chest with a gun, he was also telling
Lopez-Velasco “if I said something or if I whispered something, that he was going to find
me here or in Mexico and my family to do the same to me.” There was no ambiguity
here. Cruz-Santos was threatening Lopez-Velasco—talk and you will die. Your family
will die. Here or in Mexico. We also note that the jury was also instructed that
conviction required the prosecution to prove that Cruz-Santos “knew he was trying to
prevent or discourage Ramon Lopez-Velasco from making a report to law enforcement
and intended to do so.” (Italics added.)10 In these circumstances the error was harmless.
(Chapman v. State of California (1967) 386 U.S. 18, 24.)



       10
           As relevant here, the jury was instructed with CALCRIM No. 2622 as follows:
“The defendant Sidonio Cruz-Santos is charged only in Count 2 with intimidating a
witness in violation of Penal Code Section 136.1. To prove that the defendant is guilty of
this crime, the People must prove that (1) the defendant maliciously tried to prevent or
dissuade Ramon Lopez-Velasco from making a report to any law enforcement officer that
someone else was a victim of a crime or the defendant maliciously tried to prevent or
discourage Ramon Lopez-Velasco from causing or seeking the arrest of someone in
connection with a crime, (2) Ramon Lopez-Velasco was a witness, and (3) the defendant
knew he was trying to prevent or discourage Ramon Lopez-Velasco from making a report
to law enforcement and intended to do so. [¶] A person acts maliciously when
he . . . intends to interfere in any way with the orderly administration of justice.”


                                             20
       Cruz-Santos contends this omission was aggravated when the jury was instructed
that it could not consider evidence that he was intoxicated in deciding whether he was
guilty of violating section 136.1.11 Because the jury was allowed to consider voluntary
intoxication as affecting other charges, the trial court must have accepted Lopez-
Velasco’s testimony on this point as substantial evidence, and thus, it was error not to
extend recognition of the principle to the intimidation count. (See People v. Mendoza
(1998) 18 Cal.4th 1114, 1134.) However, this was state law error. (See People v.
Pearson (2012) 53 Cal.4th 306, 325; People v. Letner (2010) 50 Cal.4th 99, 186–187.)
The jury did not think Cruz-Santos sufficiently impaired to acquit him of murder, nor to
reject liability as an aider and abettor, which were identified in CALCRIM No. 252 as
requiring specific intent, a concept reiterated in CALCRIM Nos. 401 and 520. Moreover,
as previously mentioned, the jury was told that convicting Cruz-Santos of intimidation
required that he acted maliciously, that is, intentionally. (See fn. 10 and accompanying
text, ante.) Thus, the omission can be deemed harmless because “ ‘the factual question
posed by the omitted instruction was necessarily resolved adversely to the defendant
under other, properly given instructions. In such cases the issue should not be deemed to
have been removed from the jury’s consideration since it has been resolved in an other
context . . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98.)

       11
          The jury was instructed with CALCRIM No. 625 as follows: “You may
consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way.
You may consider that evidence only in deciding whether the defendant acted with an
intent to kill or the defendant acted with deliberation and premeditation or the defendant
acted with a specific intent required for aiding and abetting or for conspiracy. [¶] A
person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance knowing that it could produce an intoxicating
effect or willingly assuming the risk of that effect. [¶] You many not consider evidence
of voluntary intoxication for any other purpose. Do not consider evidence of intoxication
in deciding whether murder is a natural and probable consequence of the named target
offenses.”
        Although Cruz-Santos doesn’t expressly say it, logically he is arguing that the jury
should have been instructed with CALCRIM No. 3426 (jury may consider voluntary
intoxication in determining whether the defendant acted with the specific intent or mental
state required for conviction).

                                             21
                              Lopez-Velasco as Accomplice
       Cruz-Santos contends that error on several levels attended the admission of Lopez-
Velasco’s testimony. Cruz-Santos first argues that the evidence demonstrated, as a
matter of law, that Lopez-Velasco was an accomplice of both defendants. Thus, the trial
court erred in not instructing the jury with CALCRIM No. 335 to that effect, but rather
allowing the question of whether Lopez-Velasco was an accomplice to be decided by the
jury as an issue of fact (CALCRIM No. 334). Proceeding from the premise that Lopez-
Velasco was an accomplice, Cruz-Santos then submits that his testimony lacks sufficient
corroboration.
       “Section 1111 prohibits a defendant from being convicted on the uncorroborated
testimony of an accomplice. Accomplice testimony must be corroborated by ‘other
evidence as shall tend to connect the defendant with the commission of the
offense. . . . [¶] An accomplice is . . . defined as one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.’ [Citation.] In other words, ‘[t]o be so chargeable,
the witness must be a principal under [Penal Code] section 31. That section defines
principals as “[a]ll persons concerned in the commission of a crime, whether . . . they
directly commit the act constituting the offense, or aid and abet in its commission. . . .”
[Citation.] An aider and abettor is one who acts with both knowledge of the perpetrator’s
criminal purpose and the intent of encouraging or facilitating commission of the offense.
Like a conspirator, an aider and abettor is guilty not only of the offense he intended to
encourage or facilitate, but also of any reasonably foreseeable offense committed by the
perpetrator he aids and abets.’ [Citation.]
       “Unless there can be no dispute concerning the evidence or the inferences to be
drawn from the evidence, whether a witness is an accomplice is a question for the jury.
On the other hand, the court should instruct the jury that a witness is an accomplice as a
matter of law when the facts establishing the witness’s status as an accomplice are
‘ “ ‘clear and undisputed.’ ” ’ [Citations.]” (People v. Williams (2008) 43 Cal.4th 584,
635–636.)


                                              22
       Although the prosecution was willing to concede that Lopez-Velasco was an
accomplice to the cultivation charge, Cruz-Santos errs in extrapolating that “[i]pso facto,
he was an accomplice” in all the other offenses except those where he was named as the
victim. The fact that Lopez-Velasco had once been charged with participation in the
murder does not label him as an accomplice as a matter of law for all time. (See People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 432 [“the fact that Tannis was
initially charged in the case is not dispositive”].) The language of People v. Richardson
(2008) 43 Cal.4th 959, 1024 is particularly apt: “While it is true . . . that Marshall was at
one point charged with [the] murder, it is also true that after he told police defendant had
confessed to him, the charges were dropped. On this record then, it cannot be said that
the evidence that Marshall was an accomplice . . . was undisputed either in terms of the
facts or the inferences to be drawn therefrom.”
       In his opening brief, Cruz-Santos states his case why Ramon Lopez-Velasco was
an accomplice as follows: “Ramon was the only witness who testified that Sidonio was
conspiring and working with other people—namely, Augustin [Zepeda-Onofre],
Conrado, and Ramon—to cultivate marijuana. Ramon was the only witness who testified
that Sidonio hired others to work on the marijuana garden. Ramon was the only witness
who testified that Sidonio possessed firearms. [¶] Ramon was the only witness who
testified that Sidonio was present at the gathering on Saturday evening, drinking beer,
and celebrating the marijuana harvest. Ramon was the only witness who claimed Sidonio
became angry at Conrado and Gabino. Ramon was the only witness who claimed
Sidonio had a handgun after the shooting. Ramon was the only witness who claimed
Sidonio grabbed Conrado by the shirt and the neck, while holding a handgun, and ordered
Conrado not to tell anyone what he saw. Ramon was the only witness who claimed
Sidonio said, after the shooting, that Gabino had ‘gone to hell,’ ‘just because I want to.’
Ramon was the only witness who claimed Sidonio told him and Conrado to carry the
body away. [¶] Without Ramon’s testimony, the prosecution had no case against
Sidonio for murder, conspiracy to cultivate marijuana, ADW upon Gabino, or ADW
upon Conrado.”


                                             23
       But Cruz-Santos undercuts his argument by conceding “Some factual details of
Ramon’s testimony were corroborated by other sources. For example, he eventually told
the police where he dumped Gabino’s body. The victim’s blood was found where
Ramon told them to look. The marijuana garden was located as Ramon
described. . . . [W]hile some of these details may have corroborated Ramon’s testimony
where and when the homicide occurred, none of it corroborated Ramon’s claim that
Sidonio was personally involved.” Knowing where the victim’s body would be found
corroborates Lopez-Velasco’s testimony as to how it came to be there—because he put it
there, at defendants’ order, very shortly after he saw defendants moving towards where
the victim was last seen alive. The same is true for Lopez-Velasco knowing where the
victim’s blood could be found on the driveway of the garden property.
       “The court’s task was not to determine whether the jury could reasonably find [the
witness] was an accomplice, but rather whether it could only reasonably find that he was
an accomplice.” (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 335, 430, some
original italics omitted.) The trial court performed that task without error.
       The requisite quantum of corroboration may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offenses. Certainly the prosecution need not present corroboration of every aspect and
detail of the witness’s testimony. “Only a portion of the accomplice’s testimony need be
corroborated . . . .” (People v. DeJesus (1995) 38 Cal.App.4th 1, 25.) “The evidence ‘is
sufficient if it tends to connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth.’ ” (People v. Lewis (2001) 26 Cal.4th
334, 370.) “[E]vidence of corroboration . . . is sufficient if it connects defendant with the
crime, although such evidence ‘is slight and entitled, when standing by itself, to but little
consideration.’ ” (People v. Holford (1965) 63 Cal.2d 74, 82.) Thus, even if Lopez-
Velasco did as a matter of law qualify as an accomplice, the failure to so instruct the jury
would be harmless because his testimony, as noted above, had ample corroboration.
(People v. Manibusan (2013) 58 Cal.4th 40, 95; People v. Whalen (2013)
56 Cal.4th 1, 60.)


                                             24
                                 Third Party Culpability
       Quoting the caption of his brief, Cruz-Santos submits that “the trial court erred in
excluding evidence that Conrado lied to the police in claiming that Gabino was home and
asleep, and in claiming a false alibi; and the trial court erred in barring the defense from
arguing that those lies, plus Conrado’s flight to Mexico, showed Conrado’s
consciousness of guilt.” He elaborates: “When Conrado was arrested by police at
3:00 a.m., he told several lies. He denied any knowledge of the homicide. He falsely
told the police that Gabino was home and asleep. He falsely told the police his truck was
parked outside his house. He gave himself a false alibi, by telling the police that he came
home at 6:25 p.m. [¶] The trial court excluded Conrado’s statements, even though
defense counsel established that they were not hearsay, because he sought to admit them
for their falsity, rather than for their truth. The trial court also barred [Cruz-Santos] from
arguing to the jury that Conrado’s flight to Mexico showed consciousness of guilt.”
Thus, this “evidence of third party culpability should have been admitted,” and the trial
court’s ruling violated Cruz-Santos’s due process rights under the state and federal
constitutions to present a defense.
       The modern authority for permitting a defendant to introduce evidence that
another person committed the crime traces to People v. Hall (1986) 41 Cal.3d 826 (Hall).
As our Supreme Court summarized: “ ‘[T]he standard for admitting evidence of third
party culpability [is] the same as for other exculpatory evidence: the evidence [has] to be
relevant under Evidence Code section 350, and its probative value [cannot] be
“substantially outweighed by the risk of undue delay, prejudice, or confusion” under
Evidence Code section 352.’ ” (People v. Kaurish (1990) 52 Cal.3d 648, 685, citing Hall
at p. 834.) “ ‘To be admissible, the third-party evidence need not show “substantial proof
of a probability” that the third party committed the act; it need only be capable of raising
a reasonable doubt of defendant’s guilt. At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible
culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant’s


                                              25
guilt: there must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime.’ (People v. Hall, supra, 41 Cal.3d at p. 833.)” (People
v. Hamilton (2009) 45 Cal.4th 863, 914.)
       As for Cruz-Santos’s due process arguments, Hall itself recognized: “As a general
matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s
right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise
discretion to control the admission of evidence in the interests of orderly procedure and
the avoidance of prejudice. [Citations.] . . . [T]his principle applies perforce to evidence
of third-party culpability . . . . [¶] . . . [N]ot one [authority] suggests that third-party
culpability evidence must be admitted no matter how remotely relevant and without
considering its potential to disrupt orderly proceedings.” (Hall, at pp. 834–835.)
“[C]ourts should simply treat third-party culpability evidence like any other evidence”
(id. at p. 834), and if excluded under Evidence Code section 352, “a trial court’s broad
latitude in this respect will not be upset on appeal absent a showing of abuse of
discretion.” (People v. Robinson (2005) 37 Cal.4th 592, 626.)
       Our Supreme Court still adheres to that view. (E.g., People v. Lucas (2014)
60 Cal.4th 153, 270; People v. Edwards (2013) 57 Cal.4th 658, 729; People v.
McWhorter (2009) 47 Cal.4th 318, 368.) And so also does the United States Supreme
Court: “While the Constitution thus prohibits the exclusion of defense evidence under
rules that serve no legitimate purpose or that are disproportionate to the ends that they are
asserted to promote, well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” (Holmes v. South
Carolina (2006) 547 U.S. 319, 326.)
       One could ascertain from Cruz-Santos’s brief that the trial court’s ruling came
after extensive arguments that occupy more than 30 pages of reporter’s transcript. The
court deliberated overnight, and then stated its ruling, which deserves quotation at length:
       “[T]here’s a lot of factual underpinnings to this ruling that . . .weigh very heavily
in the 352 process. . . . 352 is always a guiding principle and not wasting the jury’s time


                                               26
sending them off, all the parties off in different avenues that may unduly consume time.
But in this matter, the Court is more concerned about misleading the jury, confusing the
jury, and prejudice that may result to all parties. So that’s really what my focus is in
considering [Cruz-Santos’s] request to have some additional information put before the
jury regarding Conrado’s false statements, as well as evidence regarding his being absent
from this trial.
       “Now, so I want to just very carefully . . . go through some of the things that were
important to the Court in going through its 352 analysis. [¶]. . . [¶]
       “. . . Ramon circumstantially placed Sidonio and Augustin as firing shots at
Gabino. All the statements and circumstances, evidence have Sidonio, Augustin, and
Ramon as armed and protecting the marijuana garden. Conrado has Sidonio and
Augustin as firing and at Gabino. There is some confusion, certainly . . . . There is a
certain lack of clarity, but the Court isn’t convinced that there was an unknown additional
person identified by Conrado because of the confusion in the names. It’s apparent in the
statement.
       “Both Conrado and Ramon . . . have Sidonio in charge. It’s clear by the evidence
so far that that’s the situation. Augustin was identified as a gunman and labored in the
marijuana garden, just as Ramon becomes a worker and co-participant in this conspiracy
to cultivate and protect the marijuana garden.
       “I’ve already mentioned that there is some evidence in the record that Sidonio
became angry with the arguing that was going on while they were drinking and using
cocaine, not only an issue of who was better as a comparison of people, but also on the
issue of Gabino maybe making statements about Conrado’s cocaine use to others.
       “In the context of this case, the Court puts a lot of emphasis on that as being a
motivating matter. At least the drug . . . and alcohol use, that certainly would have
clouded any decision process going on that night. Gabino was an outsider, more so than
the others, and the threat of being or possibly disclosing this cocaine use to others.
       “Now, trying to admit the defense—trying to admit, somewhat picking and
choosing, which statements should be excluded as hearsay and which ones should be


                                             27
admitted is for nonhearsy purposes. Certainly, the Court does believe that Conrado made
false statements initially, just as Ramon did.
       “The issue of fleeing is somewhat speculative. If you look at this subjectively, we
don’t know where he and his family are. We don’t know if something bad really did
happen to them. And, certainly, we wouldn’t want the jury to speculate about that with
the evidence that’s in the record of threats having been made on the scene the night of
homicide.
       “Certainly, any aspect of that would be highly prejudicial if it was emphasized in
trial, whether he deliberately fled because of some kind of issue of culpability or because
of fear for his life or because . . . something awful has already happened to him, as he
suspected and was fearful, at least as expressed early on to law enforcement, that he was
very concerned about his family.
       “So picking and choosing the issue of what hearsay statements come in for a
nonhearsay purpose or the fleeing would be highly prejudicial and potentially highly
prejudicial to all parties and, additionally, highly misleading if all the evidence didn’t
come in. And, certainly, the only way that all the evidence could come in is if Conrado
was here to testify and [be] subject to the crucible of cross-examination, and direct, for
that matter.
       “It really is pure speculation that he fled because of fear of his immigration issues
and now intense law enforcement interest in him or culpability for the role he played in
the conspiracy. And, certainly, the Court finds that he was very much engaged in this
conspiracy. He provided labors. He was there in the cultivation of marijuana.
       “Certainly, the stronger evidence is he fled out of fear of the case, meaning the
fear of the defendants and any known or unknown associates. The fact that he fled
because of culpability is a lesser issue.
       “So to place evidence of his fleeing—and the defense is what’s calling it fleeing. I
know all parties have probably made significant attempts. Certainly, I have the exhibit
that the defense gave me on the People’s attempts to interview and meet with him and
track him down. But fleeing is certainly a conclusionary statement. He’s just—neither


                                              28
party has come up with him to place him before the jury; but it would be highly
prejudicial, highly misleading if his other statements of fear weren’t also admitted for a
nonhearsay purpose.
       “And, additionally, placing in the initial lies without also including the entirety of
his statement to put that into context and how that evolved would be highly misleading.
All of this would take time. It would divert the jury. It would allow both sides to argue
speculation, all parties, without the witness actually being present. And that’s the real
danger of admitting hearsay statements.
       “I don’t believe there would be any possible limiting instruction that would
diminish the prejudice or misleading nature of admitting some but not all of the hearsay
statements.
       “The Court also has seen nothing in the record, not any statement, whether
admissible or otherwise, that places a gun in Conrado’s hand. There’s no direct or
circumstantial evidence that Conrado was the shooter.
       “Certainly, a jury could find, just as they could find, with Ramon, that he was a
participant in the conspiracy to cultivate marijuana, as I stated previously. Both
defendants and Ramon also could be found by the jury to equally be armed and in
furtherance of that conspiracy, but not Conrado.
       “So, in substance, the Court does find . . . that this is really collateral evidence.
It’s insignificant as far as any direct or possible role that Conrado had, culpability beyond
the cultivation in actually committing the murder. I think it would incur speculation. I
think it would generate speculation by admitting some but not all the evidence. It would
unduly consume time in giving all parties a pursuit of this highly speculative evidence.
If—certainly, if he comes and testifies—and I don’t know if any efforts are still being
made to find him—all this could be remedied. And, certainly, the Court’s rulings would
be far easier if we had him subject to cross-examination and direct.
       “So, in the absence of anyone producing this witness, I do find under 352 that the
probative value of what the defense asks to admit is far outweighed by its prejudice. I do



                                              29
find it’s not just substantial prejudice, it’s extreme prejudice, to put it in the way the
defense has advocated for.
       “Further admissions, some admission of hearsay regarding false statements in the
very initial stages of the investigation, whether—and we haven’t focused on the wife, but
certainly she hasn’t been produced by any party, either, as a witness. And I don’t have
any factual backdrop. I’m assuming that all the efforts by law enforcement to focus on
finding Conrado also included the spouse. But, in any case, those initial misleading
statements, without further context of all statements, would be extremely misleading and
extremely prejudicial. . . .
       “So I’m not really focusing on the additional delay or undue consumption of time,
but that’s an element of all these extraneous matters. I just am ruling in favor of the
People in this regard and prohibiting that evidence to come in. A lot of evidence is
already in. You know, Conrado’s been placed on the scene. He’s been placed as a co-
conspirator, to a certain extent. The motive, if any, that comes out of those arguments is
before the jury. And anything that’s before the jury may be properly argued by the
parties as to their meaning, if any. But as far as putting in this additional evidence at this
time, the Court excludes it.”
       Conspicuously absent from Cruz-Santos’s brief is any real or systematic attempt to
dismantle or refute the court’s reasoning.
       It is certainly a gross exaggeration to claim the trial court’s ruling left Cruz-Santos
helpless before the jury. “[T]he trial court merely rejected some evidence concerning a
defense, and did not preclude defendant from presenting a defense. . . .” (People v.
McNeal (2009) 46 Cal.4th 1183, 1203.) The ruling did not prevent him from attacking
the credibility of Lopez-Velasco hammer and tongs, and the lack of corroboration for his
version.12 And the ruling did not prevent counsel from drawing the jury’s attention to


       12
         In his closing argument, Cruz-Santos’s attorney asked the jury to see this as “a
one witness case, a witness that is bought and paid for by the prosecution, and will testify
to anything. And you’ve heard him testify about anything, and in the end, I submit you
cannot believe him. And his testimony, even if you didn’t find him to be an

                                              30
other evidence that Lopez-Velasco made false statements to police, and that those
statements had significant discrepancies in them. Zepeda-Onofre’s counsel was, if
anything, even more slashing.13 The trial court’s ruling did not categorically foreclose
the defense arguing that Conrado was not an innocent, but was actually involved in
Gabino’s death. Nor should it be forgotten that counsel’s efforts apparently persuaded
the jury not to convict Cruz-Santos of first degree murder. In short, “the trial court
merely rejected some evidence concerning a defense, and did not preclude defendant
from presenting a defense. . . .” (People v. McNeal, supra, at p. 1203.) No abuse of
discretion is shown here.




accomplice . . . , it is just not worthy of belief that Sidonio committed these crimes. And
when you look at it through the eyes of accomplice testimony, that needs corroboration
before you can find anyone guilty on only that evidence, then there is really doubly no
evidence against Sidonio Cruz-Santos.” “Is there any corroboration for any of the
statements? Is there any physical evidence in this case connecting Sidonio Cruz-Santos
to the crime? There is nothing. Is there any gunshot residue on him? Is there anything
suggesting that he did this? No. There is nothing. There is no physical evidence of any
type that connects him to the offense or to the story that Ramon is giving you.” “I
introduced into evidence . . . the shirt of Ramon. This is Ramon’s shirt. This is the shirt
with no blood on it. This is the shirt he says he was wearing . . . . So if Ramon’s story is
to be believed, how does a person who grabs a body, who doesn’t go home to change,
grabs the body, holds the body on two occasions and doesn’t get any blood on his
sleeves?”
          13
             “Ramon . . . is central to this case. Can’t get away from it. [The] People can’t
avoid it. He’s the one who sees or hears . . . . That’s the bed Ramon has made for
himself in this case. [¶] Now the lies are obvious . . . . And he didn’t just lie, . . . he
made up dialogue, it was like script writing. . . . He becomes the hero. . . . [T]here is the
lie . . . . [T]hat lie is toxic. That lie is an indication that this man who sat in front of
seasoned detectives and told it several times, he’s good. And I don’t mean good in a
good way. He lied so well these detectives bought it. . . . I will go over some of the
credibility instructions . . . instruction [CALCRIM No.] 226, witnesses. Man this list is
like Ramon written all over it.” “[T]his guy lies about stuff . . . there is no point in lying
about.” “[T]his area is apparently pitch black. Right, that night it is pitch black. It is
foggy I think people were saying. Nobody had flashlights, had a lantern. This wasn’t
like a campsite, . . . yet Ramon the all knowing sees everything. . . .”


                                              31
                                     Sentencing Error
       The final contentions come from Cruz-Santos, who claims that the trial court erred
in sentencing him. First, he claims that he should not have been sentenced to eight years
(midterm of three years plus five years for the arming enhancement [§ 12022.5]) for
violating section 136.1. However, when the Attorney General pointed out
section 1170.15 required the sentence, Cruz-Santos withdrew his claim.14
       Next, Cruz-Santos argues section 654 requires that the sentences for the
cultivation and assault charge on Gabino be stayed because they were integral to the
murder of Gabino. We disagree.
       “It is well settled that section 654 protects against multiple punishment, not
multiple conviction. [Citation.] The statute itself literally applies only where such
punishment arises out of multiple statutory violations produced by the ‘same act or
omission.’ [Citation.] However, because the statute is intended to ensure that defendant
is punished ‘commensurate with his culpability’ [citation], its protection has been
extended to cases in which there are several offenses committed during ‘a course of
conduct deemed to be indivisible in time.’ [Citation.] [¶] It is defendant’s intent and
objective, not the temporal proximity of his offenses, which determine whether the
transaction is indivisible. [Citations.] We have traditionally observed that if all of the
offenses were merely incidental to, or were the means of accomplishing or facilitating
one objective, defendant may be found to have harbored a single intent and therefore may
be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored
‘multiple criminal objectives,’ which were independent of and not merely incidental to

       14
          “Notwithstanding subdivision (a) of Section 1170.1, which provides for the
imposition of a subordinate term for a consecutive offense of one-third of the middle term
of imprisonment, if a person is convicted of a felony, and of an additional felony that is a
violation of Section 136.1 . . . , the subordinate term for each consecutive offense that is a
felony described in this section shall consist of the full middle term of imprisonment for
the felony for which a consecutive term of imprisonment is imposed, and shall include
the full term prescribed for any enhancements imposed for being armed with or using a
dangerous or deadly weapon or a firearm, or for inflicting great bodily injury.”
(§ 1170.15.)

                                             32
each other, he may be punished for each statutory violation committed in pursuit of each
objective, ‘even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’ [Citation.] Although the question of whether defendant
harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the
applicability of the statute to conceded facts is a question of law. [Citation.]” (People v.
Harrison (1989) 48 Cal.3d 321, 335.)
       Just what were the defendant’s criminal objectives, or how many objectives were
harbored by the defendant, are issues of fact given over to the trial court’s determination.
And in situations where a trial court imposes separate sentences, a reviewing court looks
to whether substantial evidence supports the sentencing court’s implied finding that the
defendant had more than a single criminal objective. (People v. Brents (2012)
53 Cal.4th 599, 618; People v. Osband (1996) 13 Cal.4th 622, 730–731.)
       Gabino made his first, and only, appearance in the picture on the night he died.
By contrast, it was evident that the marijuana cultivation was already a going concern. It
follows that the objective for that enterprise existed before any thought of homicide.
Because there were separate criminal intents, separate sentences were not forbidden by
section 654.
       Assault is defined as “[a]n unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240.) Because “assault
criminalizes conduct based on what might have happened—and not what actually
happened,” “assault does not require a specific intent to injure the victim.” (People v.
Williams (2001) 26 Cal.4th 779, 787, 788.) It follows that when the assault is committed
with a firearm, neither actual discharge of the weapon nor physical injury is required.
(People v. Chance (2008) 44 Cal.4th 1164, 1167–1168; People v. McCoy (1944)
25 Cal.2d 177, 190–191.) Thus, if present ability is demonstrated (see People v. Chance,
supra, at p. 1172, fn. 7 [“assault cannot be committed with unloaded gun”]), and the jury
clearly concluded that it was (see People v. Rodriguez (1999) 20 Cal.4th 1, 12 [“a
defendant’s statements and behavior while making an armed threat against a victim may
warrant a jury’s finding the weapon was loaded”]), the mere threat to use the firearm


                                             33
would constitute assault with it. This has been the law in California since 1857. (See
People v. Colantuono (1994) 7 Cal.4th 206, 219; People v. McCoy, supra, at pp. 192–193
[both citing and quoting People v. McMakin (1857) 8 Cal. 547, 548].) Accordingly,
when Cruz-Santos brandished a handgun and told the quarreling Gabino and Conrado
that “the devil is touching me and I can be capable of anything,” this could be treated as
an assault intended to halt the quarrel. The homicidal use of the weapon would come
later and have a different intent. Again, separate sentences were not forbidden by
section 654.
                                     DISPOSITION
       The judgments of conviction are affirmed.




                                            34
                                      _________________________
                                      Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.




A139860; People v. Cruz-Santos




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