Filed 8/28/13 P. v. Simon CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G045927

         v.                                                            (Super. Ct. No. 08NF4115)

STANLEY MILES SIMON, JR.,                                              OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed in part and reversed in part.
                   David M. McKinney, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
              An amended information charged Stanley Miles Simon, Jr., Yolanda
Brown, Charles Michael Reynolds, and Nicholas Diogenes Valerio with murder (Pen.
Code, § 187, subd. (a); count 1),1 premeditated attempted murder (§§ 664, subd. (a), 187,
subd. (a); count 2), second degree robbery (§§ 211, 212.5, subd. (c); counts 3 and 4), and
active participation in a criminal street gang (§ 186.22, subd. (a); count 5). It further
alleged counts 1, 2, 3 and 4 were committed for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)), count 1 was committed
under the special circumstances of murder for the benefit of a criminal street gang by
gang members (§ 190.2, subdivision (a)(22)) and murder during the perpetration of a
robbery (§ 190.2, subdivision (a)(17)(A)), and as to counts 1 and 2 personal discharge of
a firearm by a gang member (§ 12022.53, subds. (c), (e)(1)) and personal discharge of a
firearm by a gang member causing serious bodily injury (§ 12022.53, subd. (d)).
              A jury convicted Simon on all counts and found true the special
circumstance allegations and all gang and firearm sentence enhancements. As to count 2
the jury found not true the premeditation allegation. The trial court denied Simon’s new
trial motion and sentenced him to an indeterminate term of life without the possibility of
parole (LWOP), plus 20 years.
              On appeal, Simon challenges the trial court’s denial of his Wheeler-Batson
motion,2 giving of CALCRIM No. 1603 on aider and abettor liability as applied to
robbery, refusal to give CALCRIM No. 3403 on the defense of necessity, and failure to
give CALCRIM No. 240 on causation sua sponte. He also challenges the sufficiency of
the evidence to prove he either killed Jones himself or aided and abetted the killer as



       1  All further statutory references are to the Penal Code. The codefendants were
tried separately and they are not parties to this appeal.

       2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).

                                              2
required under section 190.2, subdivisions (a)(22) and (c). We agree the evidence is
insufficient to support the jury’s true finding on the section 190.2, subdivision (a)(22)
gang murder special circumstance. We reject Simon’s other contentions and affirm the
judgment in all other respects.


                                          FACTS


              In the early morning hours of March 17, 2006, Armand Jones, a young,
African-American actor of some promise, was shot during a robbery at a Denny’s
restaurant in Anaheim.
              The evening had begun with Jones and several of his friends, including
Dwayne Washington, Giovanni Boyd, and Brent Hurd, dancing at the Boogie nightclub
in Anaheim. The young men were well-dressed and wearing expensive looking diamond
stud earrings, gold chain necklaces, and gold watches.
              After the nightclub closed, Jones, Washington, Boyd, and Hurd went to a
nearby Denny’s. They met Ronnell Spencer and some women that they had just met at
the nightclub, and the group of about 10 people sat down to eat. Washington and Boyd
got up to use the restroom. Washington went to the urinal while Boyd went into a stall.
Washington was waiting for Boyd when several African-American males and one
African-American female, who dressed as a male, entered the restroom together. They
asked Washington, “Where you from[,]” and demanded he give them all of his “stuff.”
When Washington hesitated, one of the men pulled out a black revolver and pointed it at
his face. He said to Washington, “Give me all your stuff. And if you go outside and say
anything, I’ll blow your fucking head off.” Words were exchanged before the gunman
ripped a gold chain from Washington’s neck. This man and the woman went through
Washington’s pockets and took his cell phone and shoes.



                                              3
              Washington did not look at the gunman’s face, but he later told police the
gunman had been wearing a black and gold Pittsburgh Pirates baseball cap, black shirt,
black jeans, and a black hooded sweatshirt. After doing some research on MySpace and
talking to other people, Washington told police Damon Hill from the Rollin 20’s criminal
street gang might have been the one who wore the Pirates cap and used the gun.
Washington also recognized Jarrell Kelly, and he later identified Yolanda Brown. He
knew these three people associated with the Rollin 20’s, and he identified the Pirates cap
as a symbol of the Rollin 20’s.
              Boyd heard a commotion behind him and some people asking, “Where you
from[?].” When he turned around, Boyd saw one man in the stall with him and two other
men at the stall door. The first man, who may have been Nicholas Valerio, took Boyd’s
gold chain and shoes and then left the stall. A second male entered the stall with a
semiautomatic handgun and took his car keys, cash, and cell phone. Boyd later identified
this person as Damon Hill. Then a third person walked into the stall and went through
Boyd’s clothing, looking for items to steal, but found nothing. Boyd heard one of the
robbers say, “This is 20’s” or “We’re 20’s.”
              Meanwhile, Jones became impatient when his friends Boyd and
Washington did not return from the restroom. As he entered the restroom to check on his
friends, the man in the Pirates cap put away his gun, turned, and grabbed the gold
necklace from around Jones’s neck. Jones fought back and the robbers ran out of the
restroom. One of them pushed Jones to the ground. Hurd got up from the table and
helped Jones to the door. When Hurd and Jones ran outside, a volley of gunfire erupted.
              Spencer saw Jones run out of the restroom and followed him outside. He
saw a gun lying on the floor of the restaurant, picked it up, and ran outside.3 Once
outside, Spencer exchanged gunfire with the assailants while running for cover. He fired

       3 A friend of several Rollin 20’s associates testified Spencer pulled the gun from
his waistband.

                                               4
nine shots and emptied the gun before seeking shelter behind a car. After he reached a
place of safety, someone came up to him and shot him in the head.
                When the shooting stopped, Jones stumbled back into the restaurant,
holding his chest and asking for help. He collapsed on the floor and died from a gunshot
wound to the chest.
                The following day, Anaheim Police Officer Eddie Gomez retrieved
surveillance footage from the parking lot of the Boogie nightclub. Anaheim Police
Detective Kerry Condon reviewed the footage and recognized Brown and Valerio from
the Rollin 20’s. He also heard another Rollin 20’s gang member, Keith Cantrell, refer to
a man dressed in black pants, a black shirt, and a gold and black Pirates cap as “Stan.”
                One gun, a Glock .45-caliber semiautomatic handgun, was recovered at the
scene of the shooting. One month later, a nine-millimeter handgun was recovered during
the investigation of an unrelated shooting. Ballistics evidence indicated four guns had
been used during the shooting, two nine-millimeter handguns, a .357-caliber revolver,
and a second .357- or .38-caliber revolver. Jones was killed with a .357- or .38-caliber
revolver.


1. Simon’s Pretrial Statement
                In May, 2010, Condon interviewed Simon. After waiving his Miranda
rights,4 Simon first denied any knowledge of Anaheim, or a shooting at the Denny’s
restaurant. When Condon told him he had witness statements, photographs, and
videotape proving his involvement in the crime, Simon admitted waiting in the Boogie’s
parking lot and going into the Denny’s bathroom before anything happened. He denied
any participation in the shooting or robbery.




       4    Miranda v. Arizona (1966) 384 U.S. 436.

                                                5
2. Trial Testimony
              a. Damon Hill
              Hill, a convicted felon who was facing a sentence of life without the
possibility of parole for his participation in the instant crimes, testified against Simon
because it was “the right thing,” and in the hope he would receive some type of
consideration in his own case. But he received no express or implied promise of leniency
in exchange for his testimony. He also said testifying against a member or associate of
his gang, the Rollin 20’s, would endanger his life and the lives of his family members.
              According to Hill, the Rollin 20’s gang is located on the east side of Long
Beach. Two of the gang’s rivals are the Insane Crips and East Side Longo criminal street
gangs. He identified Jarrell Kelly (Chocolate, Choc), Brown (Ya-Ya), Brown’s cousin,
Valerio, Dwight Seay (Tall), Reynolds (Banks), and Simon (Stiky Stan) as fellow Rollin
20’s gang members or associates. Hill admitted associating with the Rollin 20’s, and said
he had three gang monikers, Holyfield, Young Hillside, and 50.
              Hill testified he, several members and associates of Rollin 20’s, and some
of their friends, drove caravan style to the Boogie nightclub from their homes in Long
Beach in the late hours of March 16. He remembered that a fight occurred in the
Boogie’s parking lot, and he said Simon, Reynolds, and Brown were yelling “20’s and
this is 20’s,” during the scuffle. He also heard some other people wearing the color
purple claim the Grape Street Watts Crips gang.
              Many people in Hill’s party decided to go to a nearby Denny’s after the
Boogie closed. They socialized in the parking lot before everyone went inside the
Denny’s. Hill said the whole group went to the general area of the restrooms, and Simon
and Brown were the first to enter the men’s restroom. The restroom was crowded before
Hill entered it. According to Hill, Simon, Brown, Kelly, and Reynolds had one guy
surrounded, and Valerio and Calvin Thomas had another guy pinned in the bathroom



                                              6
stall. Reynolds had a .357-caliber handgun, Simon had a revolver, and Kelly had a nine-
millimeter handgun. Hill knew an armed robbery was in progress and he decided to help.
              Hill testified Boyd recognized Kelly and said something like, “Hey. I know
you. Why you letting your homeboys do me like this?” Reynolds yelled out, “20’s cuz.
This is 20’s.” Hill turned to leave the restroom just as Jones opened the restroom door.
Reynolds bumped into Jones, and Jones said, “What the fuck’s going on?” Reynolds
replied, “Give me your chain.” Jones said, “Hell, no[,]” and Reynolds tried to rip it from
his neck. Reynolds and Jones got into a fist fight, and the rush of people out of the
restroom knocked Jones to the floor.
              On his way out of the restaurant, Hill saw Spencer “waving a gun around
like ‘y’all robbed my homeboy.’” Hill heard gunshots. He thought Spencer was trying to
shoot him and ducked down behind a car. He heard several more gunshots, which
seemed to be coming from all directions. He saw Reynolds shoot Jones. Hill flagged
down Valerio’s Ford Explorer and jumped inside. It was then that Hill noticed Simon
and another gang member or associate in the back of the Explorer. Simon was holding
the gun he used in the robbery on his lap. He told Hill, “I domed that nigga.”


              b. Jeremiah Rodriguez
              Jeremiah Rodriguez agreed to testify for the prosecution in exchange for a
reduced term on crimes unrelated to the shooting. He claimed to have met Simon while
both were incarcerated. They did not share a cell, but Rodriguez and Simon struck up a
conversation during the times inmates were permitted to socialize with each other.
              Rodriguez testified Simon told him about the March 17 shooting, and he
had the foresight to make notes of these conversations. According to Rodriguez, Simon
admitted he had been at the Boogie nightclub during the late hours of March 16. There
had been a scuffle in the Boogie’s parking lot when Simon and Hill tried to rob a



                                             7
Hispanic male who had been driving around the parking lot while flaunting a large
amount of money.
              A video surveillance camera captured this incident. In fact, the video from
the parking lot shows one Rollin 20’s gang member pulling on the sleeve of a person
dressed in black and saying, “Come on, Stan.” And, Rodriguez claimed Simon showed
him a black and white photograph made from the surveillance footage that depicted
Simon in a Pirates cap and wearing a black shirt. Simon told him the Pirates cap was his
“hood hat.”
              Simon also admitted going to a Denny’s restaurant after the fight. In one
version of the events, Simon told Rodriguez he had been in the restroom with two other
men when Hill, Kelly, Reynolds, and Brown rushed in. Simon said he watched Hill and
Kelly rob and hit the two men. Then Jones entered the restroom. Reynolds grabbed him
and at gun point ripped the gold chain from around his neck. Jones fought back, which
prompted Hill, Kelly, Reynolds, Brown, and Simon to flee the restroom.
              After the robbery, Spencer chased two people out of the Denny’s, pulled
out a gun, and fired several shots at them. Simon said he had been armed with a snub-
nose revolver, and he walked up behind Spencer and shot him in the back of the head.
Simon told Rodriguez, “‘I shot that bug nigga in the back of his head[,]’” and that he felt
compelled to shoot Spencer because Spencer “was shooting at his homies.” Simon also
told Rodriguez he did not feel bad about the shooting because Spencer belonged to a rival
gang and being shot is “part of gangbanging.”
              Simon confided to Rodriguez his concern about Seay “trying to tell on
him,” and he threatened to have another gang member talk to Seay’s girlfriend. Simon
was also angry at Kelly and Hill for the robbery, and he thought they were trying to make
him take the blame. Simon stated Kelly had a nine-millimeter handgun with him and
Reynolds had a .357-caliber handgun.



                                             8
              On another occasion, Simon mentioned to Rodriguez that he saw
Washington and Boyd at the Boogie before the robbery, and said he was already in the
restroom when they entered it. Washington and Boyd were texting when Valerio walked
in followed by Kelly, Hill, Reynolds and Brown. Kelly pulled out a gun, and various
members of the group grabbed the victims’ gold chains, wallets, cell phones, and shoes.
Simon claimed he did not steal anything, but he admitted roughing up the victims. Jones
walked into the restroom during the robbery and Reynolds pulled a gun out and
demanded his gold chain. When Jones refused and started a struggle, Reynolds released
him and most of the group ran out of the restroom and into the Denny’s parking lot.
Simon claimed he walked out behind him and shot Spencer in the head. Simon claimed
Spencer was in a gang called Insane, and that he shot Spencer because he shot at Kelly
and Hill. Simon also told Rodriguez that he “was a gunner,” and that Hill shot Jones.
              On another day, Simon told Rodriguez that Hill and Kelly planned the
robbery. Later, Hill bragged about getting Jones’s gold chain. Reynolds and Brown also
got gold chains out of the deal. Rodriguez asked Simon why he had roughed up two
compliant robbery victims, and Simon said it was because “they kicked it with some guys
that were from Insane.” Simon claimed his gang moniker was Stiky Stan, and that the
unusual spelling of sticky represented that he was an insane killer.
              Rodriguez acknowledged he had received a deal for his testimony. He also
admitted he had been Hill’s cellmate, that Kelly was housed next door, and that both men
had contact with him before Simon’s arrest and incarceration.


              c. Ronnell Spencer
              Spencer testified he had been at the Boogie before he went to the Denny’s.
He remembered seeing Jones at Denny’s and recognized him as a customer, but could not
recall if he sat with Jones, Boyd, Washington, and Hurd before the robbery. He
remembered sitting with his back to the restrooms when he heard a “commotion,” turned

                                             9
to look, and saw a fight in progress. During the fight, someone said there had been a
robbery and the robbers had guns. Jones emerged from the area in front of the restrooms.
Jones headed toward the Denny’s entrance and Spencer followed him. There was a fight
going on in the entry way and Spencer saw “several weapons.” One of these weapons, a
semiautomatic gun fell to the floor, and Spencer picked it up. He tried to grab Jones and
stop him from running outside, but Jones ran out the front door and Spencer followed
him. Spencer instantly heard gunshots and muzzle flashes, and he returned fire while
running and seeking cover. He emptied the gun and ducked down behind a parked car.
He heard something behind him and turned to look, and he immediately heard a loud
noise and saw a bright flash of light. He thought he had been unconscious for a short
time, but he remembered opening his eyes and seeing a woman standing over him. Later,
he learned he had been shot in the head.


              d. Gang Expert Testimony
              Long Beach Detective Sean Magee testified as the prosecution’s gang
expert. He explained the culture, habits, and activities of street gangs in general and the
Rollin 20’s gang in particular. His testimony included an explanation of gang signs and
symbols, the significance of gang monikers or nicknames, and the concepts of backup
and respect, and the means by which gang members individually and collectively use
criminal activity to instill fear, intimidate rivals, and enhance their reputations. He
further explained the role that weapons play in gang culture, particularly handguns, and
testified guns form an important part of a gang’s ability to protect its claimed turf,
members, and their ability to commit violent crimes.
              Magee described the Rollin 20’s as a Long Beach criminal street gang with
between 500 and 700 members, whose primary activities include illegal distribution of
narcotics and guns, and the commission of robberies, murders, shootings, and assaults
with deadly weapons. The gang claims the colors black and yellow. He indentified two

                                             10
statutorily required predicate offenses involving Rollin 20’s members Tracy Vaughn
Paul, Jr., and Anthony Wayne Clark. Paul was convicted of a gang-related murder,
possession of a firearm by a felon, and active participation in a criminal street gang in
2005. Clark was convicted of murder, attempted murder, and active participation in a
criminal street gang in 2006.
              Magee testified Simon had at least six prior contacts with law enforcement.
On one occasion, Simon was wearing a black and gold Pirates hat. On another occasion,
Simon was found in possession of a firearm, which he claimed he needed for protection
from a rival gang called Compton Piru. Based on all of the available evidence, Magee
opined Simon was an active participant of the Rollin 20’s gang on March 17, 2006, as
were Brown, Reynolds, Valerio, Hill, and Kelly. He also opined the instant crimes were
committed for the benefit of, at the direction of, and in association with, the Rollin 20’s
gang. He based this opinion on the fact a group of Rollin 20’s gang members acted in
concert and one of them shouted the gang’s name during the robbery. He said the gang
benefitted from these crimes by enhancing their reputation and the receipt of stolen
property.


              e. Ebony Aguilar
              Ebony Aguilar, a friend of several Rollin 20’s associates, had been in the
Boogie and gone to the Denny’s restaurant with the Rollin 20’s group on the night of the
shooting. While she was waiting for a table in the Denny’s, she saw two young men go
to the restroom, and then a group of people following them. Later, she saw a female run
away from the restroom while waving a chain over her head and saying, “I got his chain.”
Hill followed the female, as did a man sitting at Jones’s table, who had a gun, and then a
group of other people. All of these people ran out the Denny’s front door. Aguilar then
heard several gunshots.



                                             11
3. Defense Case
              a. Simon’s Testimony
              Simon testified on his own behalf. He admitted he had been a Rollin 20’s
gang member in March 2006. He had two monikers, “Boo” and “Sticky Stan.” He said
the name Sticky Stan referred to his abilities as a wide receiver and tight end in high
school, and denied using the word “Stiky” because he was an insane killer.
              Simon described going to the Boogie nightclub with some friends on March
16, 2006. They drove into the nightclub’s parking lot, were searched by private security
guards, but could find no parking. He did not have a gun, and he was not wearing a hat.
Simon claimed he did not go inside the nightclub, but he admitted going into the Denny’s
restaurant to use the restroom. He claimed to have no contact with the two or three other
individuals who came in behind him. As he attempted to exit the restroom, Hill, someone
he knew and had a “bit of negative history” with, opened the door with some force and
damaged Simon’s shoes. They exchanged words, and as they did so, a number of other
people came into the restroom, including Kelly. Simon walked out of the restaurant and
into the parking lot. He was sitting in a car with a girl when he heard gunshots. Simon
heard a volley of gunfire and he ducked down, but he never got out of his friend’s car.
When the shooting stopped, Simon’s friend drove them back to Long Beach.
              Simon denied planning or participating in the robbery, and he denied
having or using a gun. He knew Rodriguez, but denied telling him anything about his
case, much less admitting he participated in the robbery, admitted he told Hill he had
“domed a nigga,” or claimed to be a “gunner.”
              Simon’s investigator testified she did not give him pictures or other
discovery materials during his incarceration.




                                             12
                                        DISCUSSION


1. Wheeler-Batson Motion
              a. Jury Selection
              Jury selection took two full days. Juror No. 178, an African-American
man, was questioned on the morning of the second day. During the court’s questioning,
Juror No. 178 said he was a professional carpenter, with friends in law enforcement. He
had once been arrested and had relatives who had been arrested and convicted of crimes.
He had also been the victim of a crime, as had one of his cousins. His cousin had been
killed during some type of gang-related violence, and he grew up in a neighborhood
known for its criminal street gangs. Juror No. 178 also disclosed a recent cancer
diagnosis for which he had received treatment. He said he was awaiting test results to
determine if further treatment would be necessary. Juror No. 178 told the court he did
not believe the test results would interfere with the trial.
              Under the prosecutor’s questioning, Juror No. 178 revealed that he had
applied for a position with the Anaheim Police Department in the mid-1970’s, but that his
“test score was mixed up, and [he] never made it that far.”
              After questioning other members of the panel, both parties accepted the
jury as constituted, including Juror No. 178. As prospective alternate jurors were being
questioned, one seated regular juror, Juror No. 135, told the court he had received a
message from his son, who was serving in the military in Iraq and Afghanistan. Juror
No. 135 said his son would be returning home for a short visit to begin the following
weekend. The court questioned Juror No. 135 about his plans to visit with his son, and
the court and counsel discussed the matter during a brief unreported sidebar. Ultimately,
the court excused Juror No. 135 on its own motion, thereby reopening jury selection.
              Thereafter, both parties exercised further preemptory challenges to the
previously accepted jury panel, and the court replaced these jurors. After the attorneys

                                              13
concluded their questioning of the recently seated jurors, the defense again accepted the
jury as constituted. The prosecutor then exercised a preemptory challenge to Juror No.
178, the African-American juror that had been accepted by both sides earlier in the day.
Defense counsel objected, and the court cleared the courtroom.
              Outside the presence of the jury, defense counsel clarified the basis for his
objection as “Wheeler,” asserting the prosecutor’s exercise of a preemptory challenge to
the only African-American juror in the remaining jury pool would prejudice the defense.
The court responded with a brief recitation of the procedure required under Batson v.
Kentucky, supra, 476 U.S. at page 79 and People v. Wheeler, supra, 22 Cal.3d 258, and
made the following comments: “In observing this venire of 80 people when they came
in, I believe we only had two – well, we had two – I won’t say it in a negative way.
Based on the random selection, I believe we had possibly two African-American jurors.
[¶] I say possibly because juror badge 114 who was previously excused by stipulation
was a woman who works for the Orange County Superior Court or for the Superior Court
here in Orange County. Just looking at her visually, it was difficult to determine if she
was African-American. I thought she was. [T]he parties stipulated to excuse her because
I was informed – and I think it may well have been off the record by both counsel – that
[the prosecutor] is prosecuting someone with the same last name who apparently was
related to her.”
              The court also set forth what had transpired during the brief, unreported
sidebar with counsel. Apparently, the prosecutor had sought to reopen voir dire for the
purpose of excusing Juror No. 135, but the court decided to excuse Juror No. 135 on its
own motion. The court then stated, “[the prosecutor] accepted [Juror No.] 178 and now
you changed your mind. So I am going to find there’s a prima facie showing which shifts
the burden to you to provide a satisfactory non-race-based reason for challenging this
single African-American juror, the only one that we have left.”



                                            14
              The prosecutor explained his reasons, citing factors known to him both
before and after he accepted the jury with Juror No. 178 in place. For instance, the
prosecutor mentioned Juror No. 178’s failed application to the Anaheim Police
Department, his potential health issues, and the fact that he had both a cousin who had
been killed as a result of gang violence and some personal familiarity with street gangs.
In addition, the prosecutor stated, “The problem that I had with [Juror No.] 178 is, as we
were getting towards the last 15 minutes, from about 11:45 till noon . . . Juror 178 was
falling asleep. And I saw him nodding off on multiple occasions. In fact, I looked over;
and I don’t know how long he had been asleep, but he had been asleep during some
questioning.” The prosecutor also said he had told defense counsel about Juror No. 178
falling asleep during the noon recess, and the judge stated he had noticed Juror No. 178
sitting with his eyes closed on several occasions throughout voir dire, although the judge
was not certain Juror No. 178 had been asleep.
              Defense counsel agreed Juror No. 178 had been sitting with his eyes closed,
but asserted he also appeared attentive. Furthermore, defense counsel argued Juror No.
178 seemed to have “a fairness based upon life experience that’s critical to my
client . . . .” Defense counsel summarized his concerns with the following observation:
“[the prosecutor] wanted Juror [No.] 135 excused which then reopened voir dire. And I
think that is a factor that I can’t control; that be it – the motive may be as innocent as they
may be. I don’t think that allows the single and sole black African-American that’s on
this jury to be excluded, especially if it can be shown that it could be potentially a race-
based decision. I just can’t see it as race neutral based on where we are now.” After
carefully considering all of these arguments, the court denied the Wheeler-Batson motion,
and specifically found the prosecutor’s explanation credible and his exercise of a
preemptory challenge to excuse Juror No. 178 non-discriminatory.




                                              15
              b. Analysis
              “Both the state and federal Constitutions prohibit an advocate’s use of
peremptory challenges to exclude prospective jurors based on race.” (People v. Lenix
(2008) 44 Cal.4th 602, 612 (Lenix); People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla), citing Wheeler, supra, 22 Cal.3d 258, 276-277; Batson, supra, 476 U.S. 79, 97;
J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 130-131.) “There is a rebuttable
presumption that a peremptory challenge is being exercised properly, and the burden is
on the opposing party to demonstrate impermissible discrimination. [Citations.]”
(Bonilla, supra, 41 Cal.4th at p. 341.)
              A three-step procedure applies in state and federal Constitutional claims of
juror discrimination. (People v. Bell (2007) 40 Cal.4th 582.) “First, the trial court must
determine whether the defendant has made a prima facie showing that the prosecutor
exercised a peremptory challenge based on race. Second, if the showing is made, the
burden shifts to the prosecutor to demonstrate that the challenges were exercised for a
race-neutral reason. Third, the court determines whether the defendant has proven
purposeful discrimination. The ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike. [Citation.]” (Lenix, supra,
44 Cal.4th at p. 612.)
              The parties do not contest the trial court’s finding defense counsel proved a
prima facie case of discrimination. Nor is Simon contesting the second prong of the
analysis, namely that the prosecutor here provided a race-neutral reason for his challenge.
Simon limits his challenge to the third stage of a Wheeler/Batson inquiry, specifically the
trial court’s credibility assessment and finding defendant failed to prove purposeful
discrimination.
              Simon argues the court mistakenly believed the credibility determination is
based on an evaluation of the prosecutor’s truthfulness, and contends there was no
evidence to support the prosecutor’s perception Juror No. 178 fell asleep during voir dire.

                                            16
He asserts the prosecutor’s stated justification for dismissing Juror No. 178 had a
disproportionate impact on his case, and the court could have used less drastic means to
address the juror’s purported sleepiness. He further faults the court and the prosecutor
for not asking Juror No. 178 additional questions to determine if he had been asleep or
just sitting with his eyes closed. We find none of these contentions persuasive.
              Our review of the trial court’s credibility assessment is deferential,
“examining only whether substantial evidence supports its conclusions. [Citation.]”
(Lenix, supra, 44 Cal.4th at p. 613.) “‘Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; by whether the proffered rationale has some basis in accepted trial
strategy.’ [Citation.]” (Ibid.) “‘So long as the trial court makes a sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled
to deference on appeal. [Citation.]’ [Citation.]” (Id. at p. 614) “‘“[I]mplausible or
fantastic justifications may (and probably will) be found to be pretexts for purposeful
discrimination.” [Citation.]’” (People v. Riccardi (2012) 54 Cal.4th 758, 787.) But the
trial court is in the best position to judge the prosecutor’s demeanor, how reasonable his
or her explanations are, and whether the proffered rationale has some basis in accepted
trial strategy. (Ibid.) And, ‘““the trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great deference on
appeal” and will not be overturned unless clearly erroneous.’ [Citations.]” (Id. at p.
787.)
              Simon fails to demonstrate the trial court’s credibility assessment and no
purposeful discrimination finding was clearly erroneous. The question of whether Juror
No. 178 was actually asleep or just sitting with his eyes closed is not dispositive. As the
Attorney General points out, the prosecutor believed Juror No. 178 had been inattentive,
and, inattentiveness alone is a legitimate reason to dismiss a potential juror. (See People
v. Ramirez (2006) 39 Cal.4th 398, 456-457.)

                                             17
              Furthermore, there is no reason our inquiry should be limited to concerns
which arose after both parties initially accepted Juror No. 178, as Simon suggests. The
prosecutor also voiced concerns about Juror No. 178’s earlier responses, namely his prior
experience with criminal street gangs and gang violence, either of which could have
prejudiced the prosecution’s case. And, finally, although the juror did not believe his
health challenges would disrupt trial, the prosecutor could have legitimately feared the
consequences of negative test results on the conduct of the trial. In short, the prosecutor
gave multiple, credible, nondiscriminatory justifications for dismissing Juror No. 178
based on his perceptions and trial strategy, and the trial court made a sincere and
reasoned effort to evaluate those justifications. It is irrelevant that some of those
justifications related to things discussed before the parties accepted the initial panel and
some relate to things discussed after questioning was reopened.
              With respect to disparate impact, Simon primarily relies on Arlington v.
Metro. Housing Dev. (1977) 429 U.S. 252, 265-266 (Arlington) and Washington v. Davis
(1976) 426 U.S. 229, 242 (Washington). But both of those cases discuss the disparate
impact of official actions in other contexts. In Arlington, the petitioners, a housing
development corporation sought to change the zoning of a particular development from
single-family homes to higher density townhomes for low- and moderate-income tenants.
When the request was denied, the corporation brought suit and alleged the denial of their
request was racially discriminatory under the Fourteenth Amendment to the United States
Constitution and the Fair Housing Act of 1968. In Washington, two African-American
police officers filed suit against a police department, alleging the promotion polices of
that department were racially discriminatory. Neither of these cases discusses racial
discrimination in the context of voir dire in a criminal trial, nor does Simon explain how
their analysis applies here.
              With respect to the court’s failure to further question Juror No. 178 to
determine if he had in fact been asleep or merely resting his eyes, we do not find this lone

                                              18
fact sufficient to upset the trial court’s credibility ruling. Simon relies on Miller-El v.
Dretke (2005) 545 U.S. 231, 246, 250 (Miller), footnote 8 and Kesser v. Cambra (9th Cir.
2006) 465 F.3d 351, 364 (Kesser), for the proposition the court had an affirmative duty to
further question Juror No. 178, but his reliance is misplaced. In Miller, there was ample
evidence of racial bias, and little evidence supporting the prosecutor’s credibility. In a
panel of 108 people, there were 20 members of African-American descent, yet only one
served. Nine had been excused for cause or by mutual agreement, but 10 were
peremptorily struck by the prosecution. (Miller, supra, 545 U.S. at p. 239-241.)
              In Kesser, the prosecutor gave several reasons for dismissing a Native
American panel member, including the panel member’s association with Native
American culture. There, the prosecutor’s stated belief was Native Americans are
“‘resistive’” and “‘somewhat suspicious’” of the justice system. In addition, the
prosecutor characterized the juror as “‘pretentious’” because she tried to claim a work-
related hardship and acted “‘misty’” and “‘emotional.’” (Kesser, supra, 465 F.3d at pp.
362-364.) While the Supreme Court did state, “the failure to ask undermines the
persuasiveness of the claimed concern[,]” Simon plucks this phrase from a footnote
discussing the state’s assertion any pretextual use of peremptory challenges was
mitigated by subsequent acceptance of an African-American juror. (Miller, supra, 545
U.S. at pp. 250-251, fn. 8) Similarly, Simon’s lengthy quote from Kesser must be
considered in light of the “‘“totality of the relevant facts”’” as that analysis applies here.
(Kesser, supra, 465 F.3d at p. 360.)
              Simon also asserts Juror No. 178’s “dozing off” did not warrant an
“automatic dismissal.” Of course Juror No. 178 was not automatically dismissed for
dozing off, but even if he had been the cases Simon cites for this proposition are equally
inapposite. Bonilla, supra, 41 Cal.4th at page 350, People v. Bradford (1997) 15
Cal.4th 1229, 1348-1349, People v. Espinoza (1992) 3 Cal.4th 806, 821, People v.
DeSantis (1992) 2 Cal.4th 1198, 1233-1234, and People v. Bowers (2001) 87

                                              19
Cal.App.4th 722, 731, all involved allegations a juror had been asleep during various
portions of the trial, not during pretrial jury selection. And, while Simon suggests there
were other, “less drastic” means available to the court to address the prosecutor’s
concerns, his argument is entirely based on the sole aspect of Juror No. 178’s
attentiveness. Simon essentially ignores the prosecutor’s other stated reasons for
dismissing Juror No. 178, all of which were facially race neutral, related to sound trial
strategy, and credible.
              For all of the foregoing reasons, we find Simon has not met his “burden of
persuasion regarding racial motivation” (Lenix, supra, 44 Cal.4th at pp. 612-613), and we
reject his contention the trial court’s ruling on this issue violated his state and federal
Constitutional rights.


2. Jury Instructions
              a. General Principles and Observations
              A trial court must instruct on “general principles of law that are commonly
or closely and openly connected to the facts before the court and that are necessary for
the jury’s understanding of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th
1027, 1047.) In addition, the trial court must instruct upon “every theory of the case
supported by substantial evidence, including defenses that are not inconsistent with the
defendant’s theory of the case. [Citations.]” (Ibid.)
              On appeal, “[w]e determine whether a jury instruction correctly states the
law under the independent or de novo standard of review. [Citation.] Review of the
adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on
the applicable law.’ [Citation.] ‘“In determining whether error has been committed in
giving or not giving jury instructions, we must consider the instructions as a
whole . . . [and] assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” [Citation.]’

                                              20
[Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment
rather than defeat it if they are reasonably susceptible to such interpretation.’
[Citation.]’” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
              The People asked the jury to find Simon guilty of the first degree murder of
Jones under a felony-murder theory of murder committed during a robbery, or as a
deliberate killing committed by an active participant in a criminal street gang and to
further the activities of the gang. The prosecutor argued the evidence supported a finding
of criminal liability as the direct perpetrator of the robbery, as an aider and abettor to the
robbery, or as a member of an uncharged conspiracy to commit robbery. The defense
argument focused on the questionable reliability of the prosecution’s chief witnesses and
evidence supporting Simon’s claim he had nothing to do with the robbery. Defense
counsel conceded Simon actively participated in the Rollin 20’s, but asserted Jones’s
murder was not committed to further activities of the gang.
              In keeping with the evidence and the parties’ legal theories, the trial court
gave general instructions on the duties of the judge and jury, how the jury should handle
and evaluate the testimony of experts, accomplices, coconspirators and jailhouse
informants, the burden of proof, and aider and abettor liability. The court further
instructed on murder and its degrees, the felony-murder rule, two special circumstances
(murder during the commission of a robbery and murder while an active participant in a
criminal street gang), liability for coconspirators, and accomplice liability under the
special circumstance of murder committed during the commission of a robbery,
attempted murder with premeditation and deliberation, personal and intentional discharge
of a firearm as either the perpetrator, coconspirator, or aider and abettor, first and second
degree robbery and related instructions on liability for aiding and abetting the crime
(CALCRIM No. 1603), active participation in a criminal street gang, the sentence
enhancement for crimes committed for the benefit of, at the direction of, or in association



                                              21
with criminal street gangs, and a unanimity instruction relating to the special
circumstance of murder committed while an active gang member.


              b. CALCRIM No. 16035
              CALCRIM No. 1603 as given stated, “To be guilty of robbery as an aider
and abettor, the defendant must have formed the intent to aid and abet the commission of
the robbery before or while the perpetrator carried away the property to a place of
temporary safety. [¶] A perpetrator has reached a place of temporary safety with the
property if he or she has successfully escaped from the scene, is no longer being pursued,
and has unchallenged possession of the property.”
              Simon claims CALCRIM No. 1603 permitted the jury to find him guilty of
felony murder regardless of when he formed the intent necessary to aid and abet the
perpetrator of the robbery. He claims his role in the robbery was “unclear,” and while he
admits the jury may have concluded he was part of the robbery from the outset, he argues
it is also possible this instruction allowed the jury to convict him of the murder of Jones
under the felony-murder theory, even if his actual participation did not begin until after
Jones was killed.
              He concedes the bench notes for CALCRIM No. 1603 state, “The court has
a sua sponte duty to give this instruction when the defendant is charged with aiding and
abetting a robbery and an issue exists about when the defendant allegedly formed the
intent to aid and abet,” citing People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166. (Bold
in original.) But he also points out the bench notes further state, “Do not give this
instruction if the defendant is charged with felony murder.” (Bold in original.)


       5 Simon expressly requested and argued this instruction at trial. Regardless of
whether counsel invited the error by this request, as the Attorney General contends, we
reach the merits if for no other reason than to forestall the inevitable ineffective
assistance of counsel claim.

                                             22
              Although the second bench note does not cite any authority, it appears to be
drawn from a long line of cases discussing the complicity of accomplices to a robbery for
the homicidal act of another. (See People v. Pulido (1997) 15 Cal.4th 713, 719-724
(Pulido).) As Pulido observed while discussing CALJIC instructions later reformulated
and restated in CALCRIM Nos. 1603 and 540B, an accomplice to a murder under the
robbery aspect of the felony-murder theory must be jointly engaged in the robbery before
or at the time the murder is committed. (Id. at pp. 728-729.)
              In this case, the prosecution relied on the felony-murder theory to hold
Simon responsible for Jones’s death, based on the robberies of Washington and Boyd.
Simon argues that because he did nothing to further these robberies until after Jones had
been shot, the trial court should not have given CALCRIM No. 1603. Assuming he is
correct, the alleged error does not mandate a reversal of the murder conviction.
              Here, the factual question posed by the alleged error was “‘necessarily
resolved adversely to [Simon] under other, properly given instructions.’ [Citation.]”
(Pulido, supra, 15 Cal.4th at p. 726.) The court gave CALCRIM No. 401 on aiding
abetting, which states in pertinent part, “To prove that the defendant is guilty of a crime
based on aiding and abetting that crime, the People must prove that: [¶] 1. The
perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended
to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime[.]” (Italics added.) The
court also gave CALCRIM No. 540B regarding liability for first degree felony-murder by
an aider and abettor or coconspirator. As given by the court, CALCRIM No. 540B
provides in relevant part: “The defendant is charged in Count 1 [murder of Jones] with
murder, under a theory of felony murder. [¶] The defendant may be guilty of murder,
under a theory of felony murder, even if another person did the act that resulted in the
death . . . . [¶] To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that: [¶] 1. The defendant (committed or attempted to

                                              23
commit,/ or aided and abetted,/ or was a member of a conspiracy to commit), robbery;
[¶] 2. The defendant (intended to commit,/ or intended to aid and abet the perpetrator in
committing,/ or intended that one or more of the members of the conspiracy commit)
robbery; [¶] 3. If the defendant did not personally commit or attempt to commit robbery,
then a perpetrator, (whom the defendant was aiding and abetting/ or with whom the
defendant conspired), personally committed or attempted to commit robbery; [¶] AND
[or] 4. While committing or attempting to commit robbery, the perpetrator caused the
death of another person(;/.) [¶] And [¶] 5. . . . A person may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.” (Italics added.)
              The italicized portions of both instructions properly told the jury that in
order to find Simon guilty of robbery and to find the robbery felony-murder special
circumstance true, the People had to prove Simon formed the intent to commit the
robbery, or act as an accomplice to the robbery, before or at the time Jones was shot. We
view the instructions as a whole and presume jurors are able to correlate and follow the
trial court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) We further
presume the jury followed those instructions, regardless of the few inconsistent timing
references the prosecutor made during closing argument. As the court told the jury, the
court’s instructions on the law trump the arguments of counsel. (CALCRIM No. 200.)
              The jury returned a true finding on the robbery-murder special
circumstance, and found Simon guilty of the robberies of Washington and Boyd. Thus,
the jury necessarily determined Simon formed the requisite intent before or at the time
Jones was shot under these other instructions concerning timing. Nothing in the record
suggests any confusion on the part of the jury over this issue. Consequently, the error in
giving CALCRIM No. 1603, if any, was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24.)




                                             24
              c. CALCRIM No. 3403-Defense of Necessity
              At trial, defense counsel argued Simon participated in the robbery because
he feared reprisals from his fellow gang members, and that he demonstrated this fear by
ducking down in his car during the exchange of gunfire. In keeping with this theory,
defense counsel requested instructions on the defenses of duress (CALCRIM No. 3402),
and necessity (CALCRIM No. 3403). 6 The court expressed doubt about the duress
instruction, noting Simon failed to show he was in immediate danger of reprisal from his
fellow gang members. Simon then withdrew his request for the duress instruction.
              As for the necessity instruction, the trial court asked defense counsel if he
was aware of any case extending this defense to gang members voluntarily present at the
scene of a gang-related crime. Defense counsel cited no such case. Ultimately, the court
ruled, “having read a lot of cases in this area, I’ve never seen [necessity] extended to a
situation . . . that involves voluntary gang membership, voluntary presence at an alleged


       6  CALCRIM No. 3403 states: “The defendant is not guilty of ___ <insert
crime[s]> if (he/she) acted because of legal necessity. [¶] In order to establish this
defense, the defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent
a significant bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She)
had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater
danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually believed
that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable
person would also have believed that the act was necessary under the circumstances; [¶]
AND [¶] 6. The defendant did not substantially contribute to the emergency. [¶] The
defendant has the burden of proving this defense by a preponderance of the evidence.
This is a different standard of proof than proof beyond a reasonable doubt. To meet the
burden of proof by a preponderance of the evidence, the defendant must prove that it is
more likely than not that each of the six listed items is true.” (Boldface omitted.)
        The bench notes for this instruction state, “The court must instruct on a defense
when the defendant requests it and there is substantial evidence supporting the defense.
The court has a sua sponte duty to instruction on a defense if there is substantial
evidence supporting it and either the defendant is relying on it or it is not inconsistent
with the defendant’s theory of the case. [¶] When the court concludes that the defense is
supported by substantial evidence and is inconsistent with the defendant’s theory of the
case, however, it should ascertain whether defendant wishes the instruction on this
alternate theory. [Citations.]”

                                             25
crime scene, and a situation in which the facts are in dispute as to whether or not the
defendant did anything. [¶] I don’t think the defendant’s own testimony creates
substantial evidence to give any of those instructions for the reasons I’ve discussed with
both counsel. He never did anything, according to his testimony. He was only afraid
outside when he was just in the car trying to protect himself. So he was fearful, but he
didn’t engage in any felonious conduct, according to him. [¶] And so I don’t think it
applies. And I just don’t think that gang theory, although it is very creative . . . and
perhaps in the long run will prove to be the law, respectfully, I don’t think it’s the law;
therefore, I’m not going to instruct on [necessity].”
              Simon now argues the trial court’s refusal to give an instruction on the
defense of necessity violated state and federal Constitutional provisions guaranteeing him
the opportunity to present a defense. We disagree.
              A criminal defendant is entitled to instruction on request “on any defense
for which substantial evidence exists. [Citations.]” (People v. Miceli (2002) 104
Cal.App.4th 256, 267; In re Christian S. (1994) 7 Cal.4th 768, 783.) A criminal
defendant seeking to rely on the necessity defense must demonstrate he or she violated
the law “(1) to prevent a significant evil, (2) with no adequate alternative, (3) without
creating a greater danger than the one avoided, (4) with a good faith belief in the
necessity, (5) with such belief being objectively reasonable, and (6) under circumstances
in which he did not substantially contribute to the emergency.” (People v. Pepper (1996)
41 Cal.App.4th 1029, 1035.) The evidence in this case is lacking with respect to all of
these elements.
              Simon’s participation in the robberies, even assuming arguendo it was
limited to assisting other gang members complete a robbery by shooting Spencer, in no
way prevented any legally cognizable, significant evil. In fact, the opposite is true. He
selected an alternative that exponentially increased the likelihood someone else would be
hurt or killed. (See People v. Bland (1995) 10 Cal.4th 991, 996 [Legislature enacted
sections 12022 and 12022.5 “‘to deter persons from creating a potential for death or

                                              26
injury resulting from the very presence of a firearm at the scene of a crime’”].) He
certainly had other alternatives, including leaving the restaurant when he realized what
his compatriots were doing, or not getting out of his car during the robbers’ flight. As for
his belief in the need to act, nothing suggests this belief, even assuming it was in good
faith and objectively reasonable, so overwhelmed him no other course of action seemed
possible. According to his own testimony, Simon had no problem walking out of the
restroom when his fellow gang members burst in to rob Washington and Boyd.
Moreover, in light of evidence favorable to the prosecution, Simon absolutely contributed
to the criminal activity of his fellow gang members.
              In sum, Simon cannot satisfy the substantial evidence requirement on any
of the elements of the necessity defense, despite the gang expert’s testimony his gang
might have retaliated had he opted to sit still and do nothing to aid them in the flight with
the loot. There was no error in refusing CALCRIM No. 3403 under these circumstances.
To hold otherwise would be to legitimize criminal street gang culture in derogation of
express public policy to the contrary. (See § 186.21.) No reported case has ever done so
and we decline to do so here. There is no basis for extending the necessity defense to
gang members voluntarily present at the scene of a gang-related crime initiated by
members of his or her own gang.


              d. CALCRIM No. 240-Causation
              Simon also contends Spencer’s “legally unjustified assault with a deadly
weapon/attempted murder” is an independent intervening cause that terminated his
liability for Jones’s death under the felony-murder theory. Simon points to testimony
indicating Spencer already possessed the gun he later claimed to have found on the floor
of the Denny’s entryway, and a portion of Rodriguez’s testimony recounting Simon’s
claim Spencer started the gunfight and he shot Spencer to defend his friends, as evidence




                                             27
in support of his claim. Moreover, Simon argues this evidence triggered the court’s sua
sponte duty to instruct the jury with CALCRIM No. 240.7 Again, we disagree.
              In People v. Cervantes (2001) 26 Cal.4th 860 (Cervantes), the California
Supreme Court had occasion to discuss proximate causation in the context of a
provocative act murder prosecution. (Id. at p. 866.) The high court stated, “‘In general,
an “independent” intervening cause will absolve a defendant of criminal liability.
[Citation.] However, in order to be “independent” the intervening cause must be
“unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of
an exonerating, superseding cause.” [Citation.] On the other hand, a “dependent”
intervening cause will not relieve the defendant of criminal liability. “A defendant may
be criminally liable for a result directly caused by his act even if there is another
contributing cause. If an intervening cause is a normal and reasonably foreseeable result
of defendant’s original act the intervening act is ‘dependent’ and not a superseding cause,
and will not relieve defendant of liability. [Citation.] ‘[ ] The consequence need not
have been a strong probability; a possible consequence which might reasonably have
been contemplated is enough. [ ] The precise consequence need not have been foreseen;
it is enough that the defendant should have foreseen the possibility of some harm of the



       7 The version of CALCRIM No. 240 in effect at the time of trial provided, “An
act causes (injury/____<insert other description>) if the (injury/____<insert other
description>) is the direct, natural, and probable consequence of the act and the
(injury/____<Insert other description>) would not have happened without 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. [¶] <Give if
multiple potential causes.> [¶] [There may be more than one cause of
(injury/____<insert other description>). An act causes (injury/____<insert other
description>), only if it is a substantial factor in causing the (injury/____<insert other
description>). A substantial factor is more than a trivial or remote factor. However, it
does not have to be the only factor that causes the (injury/____<insert other
description>).]”

                                              28
kind which might result from his act.’ [Citation.]” [Citation.]’ [Citations.]” (Id. at p.
871.)
              In Cervantes, members of different gangs attended the same party. The
defendant, a member of the Highland Street gang, shot a member of the Alley Boys gang
(Linares) in the arm and chest during a scuffle over a perceived slight to a woman
associated with the Alley Boys. (Cervantes, supra, 26 Cal.4th at pp. 863-864.) A melee
erupted with several participants yelling gang challenges. (Ibid.) A short time later, a
group of Alley boys spotted a lone Highland Street gang member (Cabrera) and fired
several shots, killing him. (Id. at p. 864.) At trial on charges he killed Cabrera, the
defendant testified he did not intend to shoot anyone, and that he was driving away from
the party when he heard several shots being fired. (Ibid.)
              The California Supreme Court reversed the defendant’s conviction,
observing, “Defendant was not the initial aggressor in the incident that gave rise to the
provocative act. There was no direct evidence that Cabrera’s unidentified murderers
were even present at the scene of the provocative act, i.e., in a position to actually witness
defendant shoot Linares. Defendant himself was not present at the scene where Cabrera
was fatally gunned down; the only evidence introduced on the point suggests he was
already running away from the party or speeding off in his car when the victim was
murdered.” (Cervantes, supra, 26 Cal.4th at p. 872, fns. omitted.) The high court further
observed, Cabrera’s murderers “‘intend[ed] to exploit the situation created by
[defendant], but [were] not acting in concert with him,’ a circumstance that is ‘normally
held to relieve the first actor [defendant] of criminal responsibility.’ [Citations.]” (Id. at
p. 874.)
              Here, unlike Cervantes, Spencer took it upon himself to protect his friends
during the course of a robbery, but there is no evidence he sought to exploit the situation
caused by Simon and his fellow gang members. In fact, Spencer testified he tried to stop
Jones from going outside. When he failed to do so and realized Jones was under fire

                                              29
from various areas in the parking lot, he “prayed that [the gun he found] had bullets in it.”
In our view, Spencer stands in the shoes of a victim of the robbery or a responding police
officer, and should not be considered an intervening or superseding cause cutting off
Simon’s liability for Jones’s death. (See Cervantes, supra, 26 Cal.4th at p. 868; see also
People v. Gilbert (1965) 63 Cal.2d 690, 704-705 [police officer kills accomplice]
reversed on grounds not relevant here sub nom. Gilbert v. California (1967) 388 U.S.
263.)
              Under established principles of causation, “[t]he defendant remains
criminally liable if either the possible consequence might reasonably have been
contemplated or the defendant should have foreseen the possibility of harm of the kind
that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.)
A shooting death during a gang-related armed robbery like this is a reasonably
foreseeable risk, not an extraordinary or abnormal occurrence. By way of contrast, if an
airplane had fallen from the sky and killed Jones, Simon’s argument would have merit.
But here we see no reason for absolution simply because the victims’ friend intervened as
opposed to one of the victims himself or a responding peace officer.
              The evidence shows Simon participated in two armed robberies in which
more than one perpetrator possessed a gun. The crimes took place in a busy restaurant.
Although a bystander’s violent intervention was not inevitable, Spencer’s involvement in
the robbery is hardly the type of occurrence so remote and unusual that it would cut off
the criminal liability of one of the robbery participants. “[I]t is impossible to see how it
could reasonably be concluded that the death[] of [Jones] in such circumstances could
have been an unnatural or improbable consequence of appellants’ admitted acts.”
(People v. Anderson (1991) 233 Cal.App.3d 1646, 1662.)
              Simon also argues Spencer’s acts were not legally justifiable, and he
“cannot be liable for the robbers’ reaction to Spencer’s independent, illegal, and lethal
conduct.” He has cited no authority for the proposition an intervening act cuts off

                                             30
liability unless the intervening act is both foreseeable and legally justifiable.
Furthermore, we are not prepared to find on this record that his acts fall outside of section
197’s provision for justifiable homicide when the life of another is threatened, or as a
justified act to apprehend those who had just robbed his friend. (See § 197, subds. (1),
(4).)
              Finally, as Simon concedes, the court gave CALCRIM No. 540B, which
required the jury to find, among other things, a “logical connection” between the cause of
Jones’s death and the robbery, and that the connection between the robbery and murder
was more than just their occurrence at the same “time and place.” (See People v. Cavitt
(2004) 33 Cal.4th 187, 201 [to satisfy the “complicity aspect” of the felony-murder rule,
a nonkiller is responsible for a homicide committed by a cofelon when there is “a logical
nexus, beyond mere coincidence of time and place, between the felony the parties were
committing or attempting to commit and the act resulting in death”].) And, as the
Attorney General notes, the trial court also gave CALCRIM Nos. 549 and 730, which
informed the jury Simon could be convicted of felony murder only if it determined the
act causing Jones’s death and the robberies were part of one continuous transaction.
Thus, there was no sua sponte obligation to instruct the jury with CALCRIM No. 240.


3. The Gang Murder Special Circumstance
              In his opening brief, Simon challenged the sufficiency of the evidence to
prove the criminal street gang special circumstance finding.8 (§ 190.2, subd. (a)(22).)
He argued no evidence demonstrated he aided and abetted whoever shot Jones with the
intent to kill as required under section 190.2 subdivision (c). After oral argument, we


        8 To be clear, Simon does not even challenge the true felony-murder special
circumstance finding (§ 190.2, subd. (a)(17)), and he expressly acknowledges that single
special circumstance finding alone is sufficient to support the LWOP sentence if the
robbery conviction is upheld.

                                              31
requested further briefing on whether the jury was misdirected with respect to the
criminal street gang special circumstance finding because the trial court added “reckless
indifference to human life” as an alternative legal theory in response to a jury question.
The Attorney General conceded the court misdirected the jury on this point, and also that
the error was not harmless. We accept this concession.
              Section 190.2, subdivision (a)(22) provides for a sentence of death or life
without the possibility of parole for first degree murder when “[t]he defendant
intentionally killed the victim while the defendant was an active participant in a criminal
street gang . . . and the murder was carried out to further the activities of the criminal
street gang.” Subdivision (c) extends liability for first degree murder to “[e]very person,
not the actual killer, who, with the intent to kill, aids, abets, counsels, commands,
induces, solicits, request, or assists any actor in the commission of murder in the first
degree . . . .” There is insufficient evidence to support a finding that Simon shot Jones.
Consequently, the prosecution had the burden to prove Simon while an active participant
in a criminal street gang aided and abetted another person to commit murder in the first
degree, with the intent to kill and to further the activities of this gang. (People v. Mejia
(2012) 211 Cal.App.4th 586, 611.)
              Neither the statute, nor case law support a theory of liability under section
190.2, subdivision (c) for aiding and abetting with a reckless disregard for human life
rather than or in addition to the specific intent to kill. (See People v. Pearson (2012) 53
Cal.4th 306, 322 [“‘reckless indifference’ to human life, applies only to the felony-
murder special circumstances listed in section 190.2, subdivision (a)(17)”].) But during
the prosecutor’s closing argument, the People asserted Simon could be found responsible
for first degree murder for Jones’s death whether either the robbery-murder or murder by
an active participant in a criminal street gang if he acted either with intent to kill or with
reckless indifference to human life.



                                              32
              Then, during deliberations, the jury submitted the following question: “We
are uncomfortable with the language in the 4th [gang-related murder special circumstance
verdict] form that implies the defendant intentionally murdered Mr. Jones. Is this form
merely asking us to apply principals of aiding and abetting to the act of murder[?].” The
court discussed the note with both counsel outside the jury’s presence and concluded the
problem arose because the verdict form only addressed specific intent to kill and was
inconsistent with the other instructions. Convinced by the district attorney and over
defense objection, the court then modified the verdict form to include the option of
finding true the gang-related murder special circumstance if Simon participated in the
robbery and did so with a reckless indifference to human life. This was error.
              Subdivision (d) of section 190.2 specifically exempts robbery-murder
felony murder from the specific intent requirement of subdivision (c). It does not list any
of the other circumstances enumerated under section 190.2, subdivision (a) such as
subdivision (a)(22). In fact, the trial court took steps to ensure CALCRIM No. 703, an
instruction on section 190.2, subdivision (d), referenced only the robbery-murder special
circumstance. But reckless disregard for human life does not suffice for a gang-related
murder special circumstance when an active participant in a criminal street gang aids and
abets a robbery. The Attorney General rightly concedes the error.
              Furthermore, we agree with the Attorney General the error cannot be
deemed harmless in this case because it is impossible to determine from other portions of
the verdict on which of the two legal theories the jury relied to find true the gang-related
murder special circumstance. (People v. Perez (2005) 35 Cal.4th 1219, 1233.) Thus, the
true finding on the gang-related murder special circumstance must be reversed.




                                             33
                                      DISPOSITION


              The jury’s true finding on the gang-related murder special circumstance
(§ 190.2, subd. (a)(22)) is reversed. In all other respects, the judgment is affirmed.




                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




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