Filed 1/31/14 P. v. Silva CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064330
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. CRM005996A)
                   v.

RUBEN SILVA, JR.,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Solomon Wollack, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos
A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Ruben Silva, Jr. (defendant) stands convicted, following a jury trial, of second
degree murder committed for the benefit of or in association with a criminal street gang
(Pen. Code,1 §§ 186.22, subd. (b)(1), (5), 187, subd. (a); count 1) and active participation
in a criminal street gang (§ 186.22, subd. (a); count 2).2 His motion for a new trial was
denied, and he was sentenced to prison for 15 years to life plus two years and ordered to
pay restitution and various fees, fines, and assessments.
       On appeal, we reject defendant’s claims he is entitled to reversal because (1) the
trial court failed to clear up the jury’s confusion regarding the elements of aiding and
abetting, (2) the trial court erred by instructing with CALCRIM No. 3261, and (3) the
jury was inadvertently given a copy of a legal memorandum that addressed the natural
and probable consequences doctrine. We agree, however, that the sentence on count 2
should have been stayed pursuant to section 654. Accordingly, we modify the sentence
on count 2, but otherwise affirm.
                                          FACTS
                                              I
                                PROSECUTION EVIDENCE
       Shortly after 11:00 p.m. on November 6, 2009, a group of men walked into the
Pastime Club in Gustine.3 In the group were defendant, who was wearing a black T-
shirt; Albert Aleman, who was wearing a white T-shirt; Richard Naudin, who was
wearing a hoodie; Brandon Carvalho, who was wearing a black and white Raiders jacket;


1      All statutory references are to the Penal Code unless otherwise stated.
2      During the course of proceedings, the information was amended several times. In
particular, a gang-murder special circumstance (§ 190.2, subd. (a)(22)) and allegation that
defendant personally used a knife (§ 12022, subd. (b)(1)) were eliminated from count 1,
and the trial court and prosecutor agreed only second degree murder could be charged in
that count.
3      Unspecified references to dates in the statement of facts are to 2009.



                                             2.
identical twins Mark and Anthony Oseguera, one of whom was wearing a long jacket and
thermal shirt, and the other of whom was wearing a long-sleeved white shirt; and Andrew
Silva. All were members of the Mongols outlaw motorcycle gang except Silva, who was
an affiliate. They appeared to search the bar, then left.
       A short time later, Ashley Klug, Sara Galas, Bill James, Denise Gibbons, Amaro
Morais, and Jennifer Herbst were in the Gustine Club when a group of men walked in.
To Herbst, the men looked like gang members.4 At least part of the group — including
defendant — headed for James, yelling something like, “Mongols, motherfucker,
Mongols, Mongols. What’s up? Mongols.” They surrounded James, who responded, “I
don’t give a shit” or “I don’t give a fuck who you are,” and started to take off his jacket.
Klug heard the sound of a knife opening. Galas saw defendant make a motion like he
was flipping out a knife and she heard a knife open, although she did not see a weapon.
Morais saw one of the men make a motion with his hand, and he heard a “flick” that
sounded like a knife.
       James had his jacket about halfway off when the man with the gray hoodie struck
him in the face and all but one of the rest attacked James. Klug, who was sitting next to
James, did not see James actually get stabbed, but when she got home, she found blood
on her sweater. Gibbons similarly did not see James get stabbed, but she believed
defendant was one of the men who lunged for James.
       Morais saw someone between defendant and James, and defendant leaning over,
making a motion that kind of went over the top and down on James. The one who


4      Eyewitness estimates of the number of men in the group ranged from four to six,
to 12 to 15. Accounts of what the men were wearing also varied. Herbst described one
as wearing a gray-and-white plaid flannel shirt, and another as having on a dark gray
hoodie. Klug believed all were wearing black and white, with one having on a Raiders
jersey. Morais recalled one wearing a black, white, and gray-checkered flannel shirt, and
another having on a Mongol “one-percenter” T-shirt underneath a flannel shirt.



                                              3.
Morais believed had a knife was making a thrusting motion. Morais grabbed this man
from behind and was trying to pull him off when the man who had not joined in the
attack pulled a canister about the size of a small fire extinguisher from inside his shirt and
discharged pepper spray or a similar substance.5 Morais could not see, but he felt
everyone “swarming” toward the front door. Morais managed to run out where he saw
James standing in the doorway of a white extended-cab pickup. It was parked in one of
the parking stalls, the passenger side door was open, and James was fighting with
someone in the backseat.
       James was throwing punches when defendant, whom Morais described as wearing
a white T-shirt with a Mongols insignia on the back, ran up behind James and stabbed
him twice in the back with a 10- to 12-inch knife.6 Defendant then ran behind the truck.
He kind of threw his hands up and said something to James, then ran off. Morais did not
know where he went; he was looking at James, and all the vehicles took off. James fell to
the ground, bleeding badly in several places.



5      Klug subsequently identified Carvalho as this person.
6      Morais initially told police the man who stabbed James outside the bar was the
same person who had been yelling “Mongols, motherfucker, what’s up” inside, and that
this was the person in the black, white, and gray-checkered flannel. Morais also said the
same person he saw stabbing James inside the bar was the same person he saw stabbing
him outside, but he later said he thought they were two different people. When shown
photographic lineups, Morais identified someone (apparently Mark Oseguera, although
the record is not clear) as the person who yelled “Mongols, motherfucker,” had the
folding knife in his hand, and stabbed James in the back while James was fighting
someone in the pickup. At trial, however, Morais identified defendant as the one who
stabbed James twice in the back outside the bar. Morais explained that sometime after he
made the initial photographic identifications and told police the same person stabbed
James both inside and outside the bar, he contacted one of the case detectives and said he
had been mistaken. He told the detective he was positive the man with the scar on his
forehead, whom he had identified, was the person who stabbed James inside the bar, but a
different person — defendant — “finished” James outside.



                                              4.
       Gibbons saw James collapse. She bent down to see what was wrong with him,
and her hands came up “full of blood.” She saw a “silverish” extended-cab pickup pull
away with the passenger side door partially open. Galas saw the men who had attacked
James jump in two or three different vehicles. One was a car, but defendant got in a
dark-colored, black or charcoal gray truck. Herbst saw people jumping into a white
Chevrolet Tahoe and a gray pickup and quickly driving away.
       Gustine Police Officer Warner was the first officer on the scene, arriving shortly
after 11:36 p.m. He found James covered in blood and face down, partly in the roadway
and partly on the sidewalk, in front of the Gustine Club. A subsequent autopsy revealed
James had seven sharp force injuries (stab and incised wounds) to his body.7 Two of the
wounds had an estimated depth of penetration of nine inches. Of these, one nearly cut the
liver in half, passed through the diaphragm and one lung, and nicked the superior vena
cava (a large vessel around the heart). The other penetrated the back, entered the
abdominal cavity, and incised multiple loops of small bowel. Two of the other wounds
had an estimated depth of penetration of four inches. One of these passed through part of
one lung. The other penetrated a lung, incised the pericardium, and involved the vital
structure near the center of the lung itself. The cause of death was multiple stab wounds.
It was possible two or more knives were used. The mechanism of death was bleeding to
death, a process that takes time that varies with the underlying health of the person.
Given James’s wounds, he would have had the ability to continue to move and attempt to
defend himself even though he received, what turned out to be, a mortal wound.
       At approximately 11:30 p.m., Merced County Sheriff’s Deputy Daniel headed
from Los Banos toward Santa Nella in search of a white Chevrolet Tahoe last seen


7       A stab wound is deeper than it is long and, in general terms, involves the insertion
of a sharp object. An incised wound is longer than it is deep, and is more of a cutting
injury.



                                             5.
headed southbound on Highway 33. As he came down the overpass on Henry Miller
Road, he saw a white Chevrolet Tahoe southbound on Highway 33. It was followed so
closely by a silver pickup that Daniel equated it to a Nascar race, with the pickup drafting
the Tahoe.8 Both vehicles turned into the parking lot of the Ramada Inn (now, the Hotel
De Oro), then the Tahoe went north and the pickup went south.
       As Daniel came around the north side of the hotel and approached the Tahoe, four
to six males ran around the vehicle then they went into the hotel.9 Daniel backed into the
corner of the parking lot, where he could watch the Tahoe, and called for additional units.
The men did not return. A group of 10 or more other men came out and were in the
breezeway adjacent to the vehicle, but they never actually approached the Tahoe. Two
males, a Hispanic female, and a White female exited the upstairs east wing of the facility.
The White female came down the stairwell, opened the Tahoe with a remote, retrieved
some items, and went back upstairs. She made three trips in all, then went back inside,
followed by the Hispanic female and the two males.
       After other officers arrived and established a perimeter, an approximately 16-inch-
long sheath or scabbard that said “Mongols” was found lying in front of the Tahoe. Near
the sheath was a black beanie/watch cap with a red stain on it that could have been blood.
Another black beanie was found on the south side of the parking lot.




8      Evidence presented at trial concerning the pickup became needlessly confusing
when, although both counsel stipulated the pickup was a GMC and some witnesses so
referred to it, it became apparent the vehicle almost certainly was a Chevrolet, as other
witnesses referred to it. To the extent possible, we will refer to the two vehicles as the
pickup and the Tahoe.
9       Daniel did not see anyone actually get out of the Tahoe. He was aware the
Mongols were in town that weekend for an annual event, that they habitually rented most
of the rooms at the hotel for the occasion, and that they used their own members to
provide security.



                                             6.
       The Tahoe and the pickup were impounded and processed for evidence. James’s
blood was found in several locations both inside and outside the pickup, on the passenger
side. Although defendant was excluded as a possible contributor to any of the blood
samples taken from the pickup, his thumbprint was found on a snack bag inside the
vehicle. James’s blood was also found in several locations inside the Tahoe, as was
blood from Mark or Anthony Oseguera.10 Defendant was excluded as a possible
contributor to any of the blood samples taken from the Tahoe. Fingerprints from Aleman
and Naudin were found on or in the Tahoe.
       The next morning, November 7, a maintenance worker at the hotel found a long-
sleeved, white cotton shirt with red stains around the cuff and a large hunting-type knife
under the first step of the back stairway at the east end of the building. The knife —
which Morais testified “look[ed] very much” like the knife he saw used to stab James in
the back — was next to the shirt. Traces of blood belonging to James and Mark and/or
Anthony Oseguera were found on the blade. Defendant was excluded as a possible
contributor. A mixture of DNA was found on the handle; Anthony and Mark Oseguera
were possible contributors, James could not be excluded as a possible contributor, and
defendant was excluded as a possible contributor. A black, white, and gray-plaid flannel
shirt/jacket, and one or more white T-shirts, were found in a garbage can at a different
location at the hotel.11 Defendant’s DNA was found on the collar of one of the T-shirts.
       That same morning, a black-handled folding knife was discovered near the street
end of one of the parking stalls down the block from the Gustine Club. Traces of James’s
blood were found on the handle. A DNA mixture of at least three contributors was also

10     Stephen Cavanaugh, the senior criminalist for the Department of Justice who
performed the DNA analysis, explained that because Mark and Anthony Oseguera are
identical twins, they have the same DNA profiles.
11     When removed from the evidence bag for viewing, the long-sleeved and plaid
flannel shirts caused the viewers to react to pepper spray residue.



                                            7.
found on the knife. Mongol Rafael Valdez was included as a possible major
contributor.12 Defendant was excluded as a possible contributor toward either sample.
       Later that day, defendant went to the Gustine Police Department to try to get the
pickup released from impound. Defendant, who gave a home address in Whittier,
explained he had arrived at the motel about 4:00 p.m. Friday afternoon, and had gone by
himself to a bar in Gustine. He could not recall the name of the bar.13 Defendant related
that he walked in to get a drink, saw a commotion and Mace being sprayed, got scared,
ran out, and got in the truck. As he started backing out, “some … dude” started
“jumping at” the vehicle and tried to lunge through the window. Defendant “threw [the
truck] in reverse” and took off. Nobody was in the vehicle with him. (Full capitalization
omitted.) Defendant had Mace in his eyes and could not describe the person, but when he
got back to the hotel, he saw blood on the passenger door, which was the side through
which the person had tried to gain entry. Defendant used a rag to clean it off. Defendant
denied affiliating with the Mongols or having any friends who were Mongols. He denied
having seen the individual before or exchanging words with him.
       Sergeant Christopher Cervantes of the Montebello Police Department testified as
an expert on the Mongols.14 Cervantes explained that the Mongols are commonly
referred to as a “one-percenter gang,” meaning they belong to the one percent of
American motorcyclists who are not law-abiding. The Mongols (who had 250 to 300
members in 2009) engage in both criminal and noncriminal activities. Their criminal
activities include petty theft of motorcycle parts, grand theft of motorcycles, drug sales,

12     Cavanaugh explained that because there was so much other information included
in the mixture, Valdez’s alleles were detected, but Cavanaugh was unable to say
conclusively it was Valdez’s DNA.
13     According to Sergeant Hamera, Gustine only had two bars.
14     We summarize only those parts of Cervantes’s testimony that are pertinent to the
issues raised on appeal.



                                             8.
firearms proliferation, witness intimidation, violent assaults, and murder. Cervantes
testified that, although Mongols have enemies among the Mexican Mafia-affiliated
Sureño street gangs in Southern California, their “most bitter and probably bloody rival”
is the Hell’s Angels, an enmity that has endured for years. The Mongols — whom
Cervantes characterized as even more violent than the Hell’s Angels — “associate[]
with” the colors black and white, and typically wear any variation of those colors; the
Hell’s Angels, the colors red and white. Both the Mongols and the Hell’s Angels claim
Central California as their territory, although the Hell’s Angels are a “dominant
presence” in Northern California, including the Merced area.
         According to Cervantes, it is common for the Mongols to have large parties. Their
standard protocol for such events is to rent hotels or other facilities and run their own
security. When coming into enemy territory, Mongols are completely self-regulated.
They stay where they are at, such as at a hotel they know is going to be safe. In
Cervantes’s experience, when the Mongols are together in large groups at a hotel or at an
event, law enforcement has very few problems with them. When small groups leave and
go to bars or other public places, however, simple fights, stabbings, shootings, or assaults
occur.
         Cervantes related that a “rat pack” — when a person gets jumped or beaten by
multiple people — is a common activity of the Mongols. Cervantes testified that
Mongols are indoctrinated into an “at war” mindset that is “on guard” for the Mexican
Mafia and, more importantly, for Hell’s Angels who are to be dealt with “on[ sight]”
which “included murder.” A Mongol must “jump in” and “protect [their] members” if a
member of a Mongols’ chapter or organization is involved in any type of physical activity
or fight. Mongols are required to carry knives, and weapons may be used even if the
victim does not have one. The Mongols’ written protocol reminds members that what
they do reflects on the club, and to “[n]ever make the club look bad.” When someone
“disrespects” one Mongol, it is viewed as extending to the whole group. Failing to

                                              9.
address the insult makes the club “look bad.” Such failure could result in the individual
being kicked out of the club. Cervantes explained that a Mongol would not be with the
group long if he failed to act. Because “disrespect” to one is “disrespect” to all, if a
group of Mongols were together and one was “disrespected,” the group would get
involved. If they were not armed (for instance, because they were in a bar that checked
for weapons at the door), then they would use their feet (kicks), or bottles, or anything
similar in the attack. If they were armed, they would “go immediately to” weapons. The
entire group would participate in the attack; they are empowered by numbers, acting as a
group solidifies their unity. Typically, they would assist each other in getting rid of
evidence.
       In Cervantes’s opinion, going into the Gustine Club and yelling “Mongols,
motherfuckers, Mongols, what’s up?” was to see “who wanted to disrespect their
presence.” Given his appearance, James could easily have been mistaken for a Hell’s
Angel, and his response to the group yelling out their gang name would have been
considered disrespectful. In Cervantes’s opinion, “disrespect … ultimately ended up
costing … [James his] life.”
       Cervantes viewed a video from the Pastime Club and identified the Mongols who
walked into the bar. The group did not make contact with anyone inside, nor did they
order drinks. Instead, they looked around in “high alert.” In Cervantes’s experience,
they were identifying problems and/or rivals, meaning potential Hell’s Angels.
Cervantes explained that the group was a “war party.” They left the secured hotel, then
secured the bar. When nothing sparked their interest, either the presence of Hell’s Angels
or disrespect, they left. In Cervantes’s opinion, the group was “on a hunt.” They were in
Northern California — where the Hell’s Angels dominate — and entered the bar looking
for issues. When they found no one, they went on to the next bar. Although a Hell’s
Angel would be their preferred victim, anyone disrespecting them would do. Cervantes
opined that when the group left the hotel that night, they were “100 percent sure” this

                                             10.
type of trouble was possible and that somebody could die, although what occurred was
not a planned event.
                                            II
                                    DEFENSE EVIDENCE
        Gary Mendonica was in the Gustine Club at the time of the incident. He was
watching television when some kind of aerosol was discharged in the area behind him.
He did not recall hearing anyone yell “Mongols” or anything similar. Mendonica ran
outside. He did not really see a fight outside, but he saw James stumble out and fall
down.
        Warner interviewed Morais outside the Gustine Club shortly after the incident.
Morais related that one person who came into the club bumped into James, and that
James said, “What the fuck motherfucker.” Asked if the individuals specifically targeted
or went to James, Morais said no.
        Merced County Sheriff’s Detective Taylor interviewed Morais on November 7.
Morais related he was about 20 to 25 feet from the door, and James was about eight feet
down from him toward the back, when a group of about six men came “piling in.” One,
who was wearing a black, gray, and white-checkered flannel shirt, said, “Mongols
motherfucker, what’s up? Mongols. What’s up? What’s up? Mongols. Mongols.” As
the man walked by, Morais saw him reach into his pocket and make a motion, and then
heard a sound he knew was a knife. Out of the corner of his eye, he saw James quickly
turn around. Morais thought somebody bumped into him, or perhaps it was when the
man yelled “Mongols.” Whatever the reason, the group went straight to James and were
“on him” all at once. The man with the knife looked like he punched James in the upper
torso. According to Morais, the group were all wearing Mongol “one-percenter” T-shirts,
white with black print, but no vests. Someone discharged pepper spray then they all
“rush[ed] out.”



                                            11.
       Morais related he managed to get outside where he saw a gray or silver extended-
cab pickup. The passenger side door was open. James was standing in the door,
“cracking” somebody inside the truck. Someone then came from Morais’s left. Morais
jumped up to grab him, but something happened and Morais fell. When he looked up, he
saw the man hit James twice in the back. Morais described the man as five feet seven or
eight inches tall, between 180 and 210 pounds, short and squatty, with a “[b]ig mouth on
him.”15 This was one of the first men who walked in, and it was the one yelling
“Mongols motherfucker, Mongols.” The man who hit James did not get into the truck,
but got into his own vehicle. There was a white vehicle on the other side of the truck.
       Detective Clark talked to defendant shortly after defendant was detained. Clark
observed no obvious signs that defendant had been in a fight.
       James Hernandez, a professor of criminal justice at California State University,
Sacramento, testified as a gang expert. Hernandez disagreed with Cervantes’s
assessment of the group “storming” the Pastime Club. In Hernandez’s opinion, the video
simply showed a group of men going into a bar. He opined that they walked toward the
restroom to use the bathroom. Based on his review of various reports and other
materials, Hernandez did not believe the group left the hotel looking for trouble. He
found nothing to suggest James could have been confused with, or identified as, a Hell’s
Angel. Hernandez disagreed with Cervantes’s opinion that the group was a war party,
and found nothing unusual in the group looking around their location.
       Hernandez did not believe it was necessarily true that every Mongol present would
have participated in the stabbing. He explained there were a growing number of
situations in which an altercation began and members of the club dragged their own



15    On November 22, defendant was five feet eight inches tall and weighed
306 pounds.



                                            12.
people away. He found a lot of the behavior of the outlaw motorcycle clubs to have
changed “drastically” in the few years before trial.
       Robert Shomer, an experimental psychologist, testified as an expert on eyewitness
identification. He explained that eyewitness identification of a stranger has a low level of
reliability, especially if the identification is made under circumstances including a
sudden, unexpected event; multiple individuals; high stress; some kind of impairment of
the eyewitness such as fatigue, drugs, alcohol, or the focus of attention; the lighting; and
the distance. Further, the identification procedure itself, if not done correctly, taints,
alters, and sometimes ruins the evidence. The police must get as much information as
possible from the witness before showing him or her anything, because showing the
witness something alters the evidence. Memory is dynamic and incorporates information
obtained from other people. The most accurate reports are the initial reports made by a
witness, after he or she has had a little time to calm down. The initial reports do not
suffer from memory decay or, to the extent witnesses can be kept from talking to each
other, from incorporation of information from other people.
       In answer to a hypothetical question based on evidence adduced at trial, Shomer
opined the situation was not one in which perceptions would be expected to be highly
accurate. If eyewitnesses were shown a video taken at the first location, but no video of
the second location where the stabbing occurred, and they were then shown photographic
lineups, the procedure would be suggestive and tainting, and likely to change the
evidence in the witness’s head. The procedure could produce a false identification.
                                       DISCUSSION
                                               I
                             RESPONSE TO JURY’S QUESTION
       Defendant says the trial court violated his due process rights by failing to clear up
the jury’s confusion about the elements of aiding and abetting. We conclude the trial
court acted within its discretion.

                                              13.
A.    Background
      Defendant was tried as an aider and abettor. In pertinent part, the jury was
instructed, pursuant to CALCRIM No. 400 (Aiding and Abetting: General Principles):

             “A person may be guilty of a crime in two ways: One, he or she
      may have directly committed the crime. I will call that person the
      perpetrator. Two, he or she may have aided and abetted that perpetrator
      who directly committed the crime. A person is guilty of the crime whether
      he or she committed it personally, or aided and abetted the perpetrator.

             “Under some specific circumstances if the evidence establishes
      aiding and abetting in one crime, and [sic] a person may also be found
      guilty of other crimes that occurred during the commission of the first
      crime.”
      Pursuant to CALCRIM No. 401 (Aiding and Abetting: Intended Crimes), jurors
were told:

             “To prove that the defendant is guilty of a crime based on aiding and
      abetting that crime, the People must prove that: One, the perpetrator
      committed the crime; two, the defendant knew that the perpetrator intended
      to commit the crime; three, before or during the commission of the crime
      the defendant intended to aid and abet the perpetrator in committing the
      crime; and four, the defendant’s words or conduct did, in fact, aid and abet
      the perpetrator’s commission of the crime.

             “Someone aids and abets a crime if he or she knows of the
      perpetrator’s unlawful purpose and he or she specifically intends to and
      does in fact aid, facilitate, promote, encourage or instigate the perpetrator’s
      commission of that crime.

             “If all of these requirements are proved the defendant does not need
      to actually have been present when the crime was committed to be an aider
      and abettor.

              “If you conclude that the defendant was present at the scene of the
      crime and failed to prevent the crime you may consider that fact in
      determining whether the defendant was an aider and abettor. However, the
      fact that a person is present at the scene of a crime or fails to prevent the
      crime does not, by itself, make him or her an aider and abettor.”




                                            14.
      Finally, jurors were instructed, pursuant to CALCRIM No. 403 (Natural and
Probable Consequences (Only Non-Target Offense Charged)):

             “Before you may decide whether the defendant is guilty of murder as
      an aider and abettor you must decide whether he is guilty of assault with a
      deadly weapon or with force likely to produce great bodily injury, assault
      or battery.

              “To prove that the defendant is guilty of murder as an aider and
      abettor the People must proof [sic] that: One, the defendant is guilty of
      assault with a deadly weapon, or with force likely to produce great bodily
      injury, assault or battery, either as a perpetrator or as an aider and abettor;

             “Two, during the commission of assault with a deadly weapon or
      with force likely to produce great bodily injury, assault or battery, a co-
      participant in that assault with a deadly weapon or with force likely to
      produce great bodily injury, assault or battery committed the crime of
      murder; and

             “Three, under all of the circumstances a reasonable person in the
      defendant’s position would have known that the commission of the murder
      was a natural and probable consequence of the commission of the assault
      with a deadly weapon or with force likely to produce great bodily injury,
      assault or battery.

            “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 or probable, consider all the
      circumstances established by the evidence. If the murder was committed
      for a reason independent of the common plan to commit the assault with a
      deadly weapon or with force likely to produce great deadly [sic] injury,
      assault or battery, then the commission of murder was not a natural or
      probable consequence of assault with a deadly weapon or with force likely
      to produce great bodily injury, assault or battery.

              “To decide whether the crime of murder was committed, please refer
      to the separate instructions that I will give you on that crime.




                                             15.
              “The People are alleging that the defendant originally intended to act
       as a perpetrator or intended to aid and abet the commission of assault with a
       deadly weapon or with force likely to produce great bodily injury, assault
       or battery.

               “If you decide that the defendant perpetrated or aided and abetted
       one of those crimes and that murder was a natural or probable consequence
       of that crime the defendant is guilty of murder. You do not need to agree
       about which of these crimes the defendant aided and abetted.”
       During deliberations, the jury sent out the following question: “If Ruben Silva
didn’t know the people he was with were carrying weapons (knives and more) would
simply driving the vehicle away from the scene (with no one with him) meet the test of
aiding and abetting?” The trial court’s initial reaction was “‘[n]o.’” Defense counsel
concurred. The prosecutor objected because such a response would invade the jury’s
duties to determine the facts and apply the law given by the court and, he argued, the
court should refer to the instructions on aiding and abetting so the jury would apply the
law to the facts in the question. The court agreed, finding its initial proposed response
created a risk of influencing jurors on what their factual findings should be. Defense
counsel again urged the court to answer the question “‘[n]o,’” because under the fact
pattern presented, there would be no aiding and abetting. Over defense objection, the
trial court told the jury:

              “Okay. Ladies and Gentlemen, in response to your question, the
       Court cannot tell you how to decide the facts. You are the adjudicator and
       body that decides what the facts are in this matter. Once you decide what
       the facts are I call your attention to Jury Instruction 400 and 403. Okay.

              “400 sets forth the four elements required as an aider and abetter
       [sic] under that section. And 403 sets forth the three elements required
       under the natural and probable consequences doctrine as to what the law
       requires, okay.

               “That’s the best I can provide to you. Okay. Good luck. Thank
       you.”




                                            16.
       The next day, the jury returned its guilty verdicts. Defendant subsequently moved
for a new trial, in part based on the trial court’s failure to answer “‘[n]o’” to the jury’s
question. Following argument, the trial court denied the motion.
B.     Analysis
       After the jury retires for deliberation, “if they desire to be informed on any point
of law arising in the case, … the information required must be given .…” (§ 1138.) “The
court has a primary duty to help the jury understand the legal principles it is asked to
apply. [Citation.] This does not mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations are sufficient
to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging
from the standard are often risky. [Citation.] [A] trial court [may be] understandably
reluctant to strike out on its own. But a court must do more than figuratively throw up its
hands and tell the jury it cannot help. It must at least consider how it can best aid the
jury. It should decide as to each jury question whether further explanation is desirable, or
whether it should merely reiterate the instructions already given.” (People v. Beardslee
(1991) 53 Cal.3d 68, 97.)
       “An appellate court applies the abuse of discretion standard of review to any
decision by a trial court to instruct, or not to instruct, in its exercise of its supervision
over a deliberating jury. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 745-746;
accord, People v. Hodges (2013) 213 Cal.App.4th 531, 539.) “[D]iscretion is abused
whenever the court exceeds the bounds of reason, all of the circumstances being
considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
       Applying this test, we find no error. The trial court here did not “figuratively
throw up its hands and tell the jury it [could not] help” (People v. Beardslee, supra, 53
Cal.3d at p. 97); rather, it considered how best to aid jurors while maintaining neutrality
as between the parties. “‘The influence of the trial judge on the jury is necessarily and

                                               17.
properly of great weight,’ [citation], and jurors are ever watchful of the words that fall
from him [or her]. Particularly in a criminal trial, the judge’s last word is apt to be the
decisive word.” (Bollenbach v. United States (1946) 326 U.S. 607, 612.) “‘“An
instruction should contain a principle of law applicable to the case, expressed in plain
language, indicating no opinion of the court as to any fact in issue.”’ [Citation.]”
(People v. Assad (2010) 189 Cal.App.4th 187, 198; see § 1127 [“The court shall inform
the jury … that the jurors are the exclusive judges of all questions of fact submitted to
them .… Either party may present to the court any written charge on the law, but not
with respect to matters of fact ….”].)
       We question whether the jury’s inquiry truly sought guidance on a point of law.
(Compare People v. Santos (1990) 222 Cal.App.3d 723, 745-746 with People v. Loza
(2012) 207 Cal.App.4th 332, 349, 354-355; People v. Thoi (1989) 213 Cal.App.3d 689,
697-698 & fn. 5.) “Whether a person has aided and abetted in the commission of a crime
ordinarily is a question of fact. [Citations.]” (In re Lynette G. (1976) 54 Cal.App.3d
1087, 1094, italics added.) A trial court’s answer to a jury question pursuant to
section 1138 is an instruction on the law, not a comment on the evidence, and as such
must be neutral. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1141.) “‘Questions
or illustrations from the jury may be phrased so that a simple affirmative or negative
response might favor one party’s position, place undue weight on certain evidence, or
indicate that the trial judge believes certain facts to be true when such matters should
properly be determined by the jury. Because the jury may not enlist the court as its
partner in the factfinding process, the trial judge must proceed circumspectly in
responding to inquires from the jury. The court may properly attempt to avoid intrusion
on the jury’s deliberations by framing responses in terms of supplemental instructions
rather than following precisely the form of question asked by the jury.’ [Citations.]”




                                             18.
(Arizona v. Johnson (9th Cir. 2003) 351 F.3d 988, 994, italics omitted; see also U.S. v.
Anekwu (9th Cir. 2012) 695 F.3d 967, 987.)16 “When a question shows the jury has
focused on a particular issue, or is leaning in a certain direction, the court must not appear
to be an advocate, either endorsing or redirecting the jury’s inclination.” (People v.
Moore (1996) 44 Cal.App.4th 1323, 1331.)17
       Even assuming the jury here was requesting information on a point of law, the trial
court’s decision not to give a categorical answer was reasonable because, under the
hypothetical facts in the jury’s question, “no” was not necessarily the correct answer.
The jury’s question posited defendant was with people, but did not know they were
carrying weapons.18 Defendant did not have to have such knowledge to aid and abet
simple assault or battery or assault by means of force likely to produce great bodily
injury, or for murder to be a natural and probable consequence of the assault. (See
People v. Medina (2009) 46 Cal.4th 913, 921-923.) And, while mere presence at the


16     Defendant, while himself citing a number of federal circuit court cases, notes in
response to the Attorney General’s citation of Arizona v. Johnson, supra, 351 F.3d 988,
that such cases are not binding on this court. This is true. Such cases can, nevertheless,
be persuasive and considered. (People v. Avena (1996) 13 Cal.4th 394, 431.)
17     A trial court may not, consonant with a criminal defendant’s right to a jury trial,
directly inform the jury that an element of the crime charged has been established, no
matter how conclusive the evidence. (See, e.g., People v. Yarbrough (2008) 169
Cal.App.4th 303, 315; People v. Higareda (1994) 24 Cal.App.4th 1399, 1406.) Article I,
section 29 of the California Constitution affords the People the right to due process of
law in a criminal case. Because the People’s rights are not coextensive with a criminal
defendant’s rights, however (Miller v. Superior Court (1999) 21 Cal.4th 883, 896), we
assume without deciding that, under proper circumstances, a trial court could inform a
jury that an element of the crime charged or basis for liability has not been established.
18     Defendant says the hypothetical facts “almost exactly matched the account” given
by defendant to law enforcement. In the hypothetical, however, defendant was with other
people, while when interviewed by Hamera, defendant said he went to the bar alone.
This is a small difference, perhaps, but potentially a significant one in terms of aider and
abettor liability.



                                             19.
scene of an offense is insufficient to constitute aiding and abetting (People v. Miranda
(2011) 192 Cal.App.4th 398, 407), “‘one who is present for the purpose of diverting
suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere,’” is
a principal in the crime committed (People v. Swanson-Birabent (2003) 114 Cal.App.4th
733, 743-744). Advance knowledge is not a prerequisite for aiding and abetting liability.
(Id. at p. 742.) To answer the jury’s question “no” and have that direct answer be legally
correct, the trial court would have been constrained either to explain that a negative
answer applied only under particular factual circumstances, or how presence could
constitute aiding and abetting. Either explanation could have had a harmful, rather than
clarifying, effect as far as defendant was concerned. (See People v. Hill (1992) 3
Cal.App.4th 16, 25, disapproved on another ground in People v. Nesler (1997) 16 Cal.4th
561, 582, fn. 5.)
       “Where, as here, the original instructions are themselves full and complete, the
court has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1213, superseded by statute on another ground as stated in In re
Steele (2004) 32 Cal.4th 682, 691.) Under the circumstances, the trial court here acted
reasonably in referring the jury back to the aiding and abetting instructions. (See People
v. Gonzalez, supra, at p. 1213.)
       Defendant says, however, that the trial court erred by specifically calling the jury’s
attention to CALCRIM Nos. 400 and 403, rather than CALCRIM No. 401, which set out
the elements of aiding and abetting.19 Although the court may have misspoken as to the

19    The record contains a certified settled statement of the in-chambers discussion
concerning the appropriate response to the jury’s question. Although it is clear defense
counsel objected to the trial court not responding directly to the jury’s question, we
cannot tell whether counsel objected on the particular ground defendant now raises.
Under the circumstances, we will not find the issue forfeited by failure to object.



                                            20.
number of the instruction that contained the elements, its reference to “the four elements
required” advised jurors of what they should go back and consider again. Nothing in the
record suggests jurors remained confused after following the court’s direction or could
not find the information to which the court referred them, or that the trial court’s response
somehow discouraged them from asking additional questions if they had any. (See
Weeks v. Angelone (2000) 528 U.S. 225, 234; People v. Beardslee, supra, 53 Cal.3d at
pp. 96, 98.)
       We conclude the trial court did not abuse its discretion in responding to the jury’s
question by referring jurors back to the original, correct instructions rather than directly
and categorically answering. We further conclude any error in the court’s specification
of instructions was harmless. Even if we consider the error a failure adequately to answer
the jury’s question, it did not constitute a failure to instruct on all elements of an offense
or of aiding and abetting liability in light of the instructions originally given.20
Accordingly, it is subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d
818, 836. (People v. Hodges, supra, 213 Cal.App.4th at p. 539; People v. Eid (2010) 187
Cal.App.4th 859, 882.) There is no reasonable probability defendant would have
obtained a more favorable result had the trial court specified CALCRIM No. 401. There
was manifestly no due process violation. (See Weeks v. Angelone, supra, 528 U.S. at
pp. 231-232; Estelle v. McGuire (1991) 502 U.S. 62, 72-73.)




20     “When an instruction tells the jury it may convict the defendant on a theory he or
she aided and abetted in commission of the offense, but omits one or more of that
theory’s necessary findings, the error may be deemed equivalent to omitting an element
of a charged offense. [Citation.]” (People v. Delgado (2013) 56 Cal.4th 480, 490; see
People v. Beeman (1984) 35 Cal.3d 547, 555, 561.) Such error is of constitutional
dimension and so is analyzed under the harmless-beyond-a-reasonable-doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Bunyard (1988) 45 Cal.3d
1189, 1226-1227; Martinez v. Borg (9th Cir. 1991) 937 F.2d 422, 423.)



                                              21.
                                              II
                                   CALCRIM NO. 3261
       For unknown reasons, the trial court followed the instructions on the natural and
probable consequences doctrine with a modified, truncated version of CALCRIM
No. 3261 (In Commission of Felony: Defined — Escape Rule), which told jurors: “The
People must prove that the defendant aided and abetted the commission of murder. The
crime of murder continues until the perpetrators have actually reached a temporary
place of safety. The perpetrators have reached a temporary place of safety if they have
successfully escaped from the scene and are no longer being chased.” (Italics added.)
       Defendant now contends the trial court violated his due process rights by giving
this instruction, the italicized portion of which he says erroneously allowed the jury to
find aiding and abetting liability even if defendant did not form the requisite intent, or
perform the necessary act, until after the murder had already been completed. We
conclude the error was harmless.21
       We independently assess whether an instruction correctly states the law. (People
v. Posey (2004) 32 Cal.4th 193, 218.) As given here, CALCRIM No. 3261 does not.
“[A] murder ends with the death of the victim.” (People v. Esquivel (1994) 28
Cal.App.4th 1386, 1397; accord, People v. Celis (2006) 141 Cal.App.4th 466, 471.) The
escape rule22 does not apply to a determination of aider and abettor liability (People v.

21     Jury instruction requests were emailed to the court and opposing counsel, and the
jury instruction conference was not reported. Thus, we cannot tell whether either party
requested the instruction. Insofar as the record shows, there was no objection to it.
Because the Attorney General agrees with defendant (as do we) that the claim is
cognizable on appeal despite the apparent lack of objection, we do not address
defendant’s alternative claim that defense counsel’s failure to object constituted
ineffective assistance of counsel.
22      “The ‘escape rule’ defines the duration of the underlying felony, in the context of
certain ancillary consequences of the felony [citation], by deeming the felony to continue
until the felon has reached a place of temporary safety. [Citation.]” (People v. Cavitt


                                             22.
Cooper (1991) 53 Cal.3d 1158, 1169; see People v. Gomez (2008) 43 Cal.4th 249, 256 &
fn. 5), even though “the temporal threshold for establishing guilt — a fixed point in time
at which all elements of the substantive offense are satisfied so that the offense itself may
be considered to have been ‘initially committed’ rather than simply attempted — is not
synonymous with the ‘commission’ of that crime for the purpose of determining aider
and abettor liability. [Citation.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1040;
People v. Cooper, supra, at p. 1164.)
       “It is settled that if a defendant’s liability for an offense is predicated upon the
theory that he or she aided and abetted the perpetrator, the defendant’s intent to
encourage or facilitate the actions of the perpetrator ‘must be formed prior to or during
“commission” of that offense.’ [Citations.]” (People v. Montoya, supra, 7 Cal.4th at
p. 1039.) “In a simple murder case, i.e., not involving the felony-murder rule, a person
may aid and abet a murder after the fatal blow is struck as long as the aiding and abetting
occurs before the victim dies. After the victim dies, what would be aiding and abetting
legally turns into being an accessory ‘after a felony has been committed.’ (§ 32.)”
(People v. Celis, supra, 141 Cal.App.4th at pp. 473-474.) Defendant “cannot be
retroactively culpable for the killing of [James] if it occurred before [defendant’s]
becoming an aider and abettor. Any other holding would ignore the primary rationale for
punishing aiders and abettors as principals, which is to deter them from aiding or




(2004) 33 Cal.4th 187, 208, italics added.) It arises in the context of felony murder when
there is evidence that the fleeing felon may have reached a place of temporary safety
prior to the commission of a killing. (See People v. Wilkins (2013) 56 Cal.4th 333, 348).
It arises in “other contexts requiring proof that an act occurred in the commission of a
crime — such as inflicting great bodily injury in the course of commission of a crime
[citation], kidnapping for purposes of robbery [citation], and use of a firearm in the
commission of a robbery [citation].” (Id. at p. 341; see also People v. Portillo (2003) 107
Cal.App.4th 834, 843.)



                                              23.
encouraging the commission of offenses. [Citations.]” (People v. Esquivel, supra, 28
Cal.App.4th at p. 1397.)
       Permitting aider and abettor liability to be predicated on intent formed after the
murder was completed constitutes an invalid legal theory. Such an error generally
requires reversal, “absent a basis in the record to find that the verdict was actually based
on a valid ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129, fn. omitted.) Had the
issue before the jury been whether defendant directly aided and abetted murder, the rule
of reversal might well apply here.23
       However, “[i]n assessing a claim of instructional error, ‘we must view a
challenged portion “in the context of the instructions as a whole and the trial record” to
determine “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.”’ [Citations.]” (People v.
Jablonski (2006) 37 Cal.4th 774, 831; accord, Estelle v. McGuire, supra, 502 U.S. at
p. 72.) “‘“[A] single instruction to a jury may not be judged in artificial isolation .…”’
[Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       The issue before the jury was not whether defendant directly aided and abetted
murder, but whether he directly aided and abetted a specified assaultive crime of which
murder was a natural and probable consequence. Jurors were expressly told that before
they could decide whether defendant was guilty of murder as an aider and abettor, they
had to decide whether he was guilty of one of the specified assaultive offenses. “‘Jurors
are, of course, presumed to follow the instructions given by the court.’ [Citation.]”
(People v. Murtishaw (1989) 48 Cal.3d 1001, 1044.) They were instructed that to find

23     No evidence was presented at trial concerning the actual time of James’s death.
Although it appears he was still alive for at least a short time after defendant and the
other participants left the scene, jurors would have had no way of determining for how
long.



                                             24.
aiding and abetting, defendant had to form the requisite intent before or during the
commission of the crime. Significantly, they were never told any of the specified
assaultive crimes continued until the perpetrators reached a place of temporary safety.
Jurors were further told that to prove defendant guilty of murder as an aider and abettor,
the People had to prove (1) defendant was guilty of one of the specified assaultive
offenses, either as a perpetrator or as an aider and abettor; (2) during the commission of
said specified assaultive offense, a coparticipant in that offense committed the crime of
murder; and (3) a reasonable person in defendant’s position would have known the
commission of the murder was a natural and probable consequence of the commission of
the specified assaultive offense. Murder was defined because jurors had to decide
whether it was committed by a coparticipant in the assaultive offense.24 (See People v.
Prettyman (1996) 14 Cal.4th 248, 267 (Prettyman).) A finding murder was committed
required jurors to find commission of an act that caused the death of another person. On
the evidence presented, the requisite act could only have been the stabbing of James, the
timing of which could not have been impacted by CALCRIM No. 3261. Under the
circumstances, CALCRIM No. 3261 did not present jurors with an erroneous legal
theory; it was irrelevant.
       As given, the first sentence of CALCRIM No. 3261 stated: “The People must
prove that the defendant aided and abetted the commission of murder.” (Italics added.)
However, jurors were told to consider the instructions together. We presume they did so.
(People v. Murtishaw, supra, 48 Cal.3d at p. 1044.) Read in context of the instructions as
a whole, the first sentence merely clarified the ultimate issue was whether defendant
aided and abetted murder; other instructions made it clear jurors could not go


24      Although the instructions on murder referred to “the defendant,” the prosecutor
clarified, in his opening argument, that jurors should “replace the ‘defendant’ with
‘perpetrator’ or ‘co-participant,’” because “they all aided and abetted each other .…”



                                            25.
immediately to that issue, but first had to decide whether defendant perpetrated or aided
and abetted a specified assaultive crime and then if murder was a natural and probable
consequence of that crime. If jurors did not find defendant perpetrated or aided and
abetted a specified assaultive crime, there is no way, under the instructions as a whole
and the evidence at trial, they could have found him guilty of murder based solely on
what occurred on the way back to the hotel.
       We recognize the prosecutor briefly referred to CALCRIM No. 3261 in arguing to
the jury: “[James] gets hit with the knife, he goes down, and the defendant drives away.
What’s important is this isn’t something -- this is the act of murder still in progress. The
crime of murder hasn’t ended yet. It doesn’t end until they get back to Santa Nella and
there is a jury instruction that tells you that.” However, there was no other mention of the
instruction. More importantly, the prosecutor never suggested defendant could be guilty
if he did not form the intent to aid and abet until he reached Santa Nella or until James
died. Nor did he argue defendant could be guilty simply by driving away or simply
aiding and abetting an escape of the perpetrators. Rather, he argued defendant was guilty
of murder by aiding and abetting the target crime of assault with a deadly weapon
because he assisted in the fight in the bar and because he was the getaway driver. This
was a valid theory for murder liability based on aiding and abetting principles.
       The following occurred during defense counsel’s summation:

               “[DEFENSE COUNSEL:] And he had to know that the commission
       of the crime, before or during the commission of the crime defendant
       intended to aid and abet the perpetrator. That he intended to, before and
       during the crime he intended to aid the perpetrator. And the reason I think
       that’s important is don’t be confused by the fact that my client got in his
       truck and drove back to the hotel, and that is aiding and abetting. That is
       not. He had to know before the crime was committed and he had to be
       participating during the crime.

              “There is another crime if you felt he didn’t know before and he
       didn’t know what was going on during but say he left the place to avoid
       something at that point left the place, that is aiding and abetting possibly


                                             26.
       after the fact, which is not murder, that’s totally different case. Totally
       different scenario.

              “[PROSECUTOR]: Objection, Your Honor. Misstates the law.

              “THE COURT: Yeah. Sustained.”
       Defendant says the prosecutor’s objection and trial court’s ruling, coupled with the
instructional error, curtailed defense counsel’s ability to argue a key aspect of the defense
— that to be guilty, defendant had to have formed the requisite intent before the drive
back to the hotel. We disagree. The prosecutor did not object to defense counsel’s
argument that defendant had to intend to aid and abet before or during the commission of
the crime, and that merely getting in the truck and driving back to the hotel was not
aiding and abetting. Rather, the objection was to defense counsel’s apparent attempt to
bring the crime of accessory into the picture.25 Because James was still alive when
defendant left the scene, he could not be guilty of accessory after the fact to murder.
(People v. Celis, supra, 141 Cal.App.4th at pp. 471-472.) Further, the crime of accessory
after the fact was not charged, nor was it a lesser included offense of the murder charge.
Hence, any suggestion the jurors might convict defendant of something other than murder
was incorrect. (See People v. Jennings (2010) 50 Cal.4th 616, 668.) The objection to
this suggestion was properly sustained.
       Finally, we disagree with defendant’s prejudice argument that the instructional
error permitted the jury to convict him under an erroneous legal theory under People v.
Guiton, supra, 4 Cal.4th at page 1122. There is no way the jury could have found
defendant guilty on the basis that it might have found he first formed the intent to aid and
abet the perpetrators on the way back to the hotel by using his vehicle to “draft[]” the

25     Section 32 provides: “Every person who, after a felony has been committed,
harbors, conceals or aids a principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment, having knowledge that said
principal has committed such felony or has been charged with such felony or convicted
thereof, is an accessory to such felony.”



                                             27.
suspect Tahoe vehicle. This theory was never suggested, let alone relied upon, by the
prosecution as an alternative theory for conviction. As such, “the Green rule” as
explained in Guiton does not apply here. (Id. at p. 1121 [explaining the prejudice rule
adopted in People v. Green (1980) 27 Cal.3d 1 where the prosecutor expressly urged a
kidnapping verdict on an invalid alternate theory of asportation].)
       The erroneous giving of CALCRIM No. 3261 was harmless. (See People v.
Wilkins, supra, 56 Cal.4th at pp. 348-351; People v. Nguyen (2000) 24 Cal.4th 756, 765;
People v. Hagen (1998) 19 Cal.4th 652, 670.) Defendant is not entitled to reversal.
                                             III
                 INCLUSION OF LEGAL MEMORANDUM WITH EXHIBITS
       Defendant claims his due process rights were violated when the jury was
inadvertently given a copy of a legal memorandum discussing the natural and probable
consequences doctrine. He says the issue should be treated as instructional in nature;
hence, he had no burden to prove jurors actually read the memorandum. Alternatively,
he says trial counsel was ineffective for failing to attempt to obtain such information from
the jurors. We find no cause for reversal.
A.     Background
       As previously stated, defendant’s jury was instructed on the natural and probable
consequences doctrine. Jurors were also instructed that during trial, several items were
received into evidence as exhibits; they could examine whatever exhibits they thought
would help them in their deliberations; and the exhibits would be sent to the jury room
when they began to deliberate. After the jury was directed to retire and begin
deliberations, the trial court again noted the exhibits would be brought in to them along
with the verdict forms.
       After the jury returned its verdicts, jurors were told they could discuss the case
with the attorneys or with anyone else, but were not obligated to do so. They were told
that if they did not want to talk to the attorneys, to say so, and the attorneys were ordered

                                             28.
to respect those wishes and cease contact. The attorneys and their representatives were
further ordered not to contact jurors “at any unreasonable time or place.”
       The following day, the trial court sent an email to both counsel informing them
that, as the court clerk was collecting the exhibits from the jury room, she found
“intermixed with the exhibits” a memorandum that the court had prepared for its own
use. Both counsel were provided with a copy of the memorandum, which is also
contained in the clerk’s transcript on appeal. As the trial court subsequently stated for the
record, and our independent comparison has confirmed, it consisted solely of verbatim
excerpts from both the majority opinion, and Justice Brown’s concurring and dissenting
opinion in Prettyman, supra, 14 Cal.4th 248. It contained no independent analysis. The
court advised counsel it believed the memorandum “got stuck with the predicate
offenses.”26
       Defendant raised “[j]urors in possession of outside materials during deliberations”
as a ground upon which he moved for a new trial. In opposition, the prosecutor argued
there was no juror misconduct. The prosecutor asserted the memorandum was neither
evidence nor received from an outside source; there was no showing the jury read or
discussed it.
       After argument on the motion, the court reiterated the memorandum was merely
an excerpt of portions of Prettyman that the court “cut and pasted” for its own use in
preparing the jury instructions. The court expressed its belief “that during the course of
[the court’s] preparation of jury instructions and particularly looking at the predicate
offenses that somehow this document got intermixed with the predicate offenses and that
inadvertently was taken into the jury room.” The court found no juror misconduct,


26      It is unclear if the court was referring to the certified copies of court records the
prosecutor introduced through his gang expert to establish the Mongols were a criminal
street gang.



                                              29.
because the jurors did not seek to obtain information from any outside source and the
document was not evidence. The court considered the situation as possibly being akin to
an instructional error because the memorandum amplified what the natural and probable
consequences doctrine was and the reason for it, but found it did not mislead the jury “on
the principles.” The court further observed it was defendant’s burden to show jurors saw
the document, and it corrected defense counsel’s mistaken belief that the court had
ordered no contact with the jurors. Although the court’s statement, as set out in the
reporter’s transcript, is somewhat unclear, it appears to have found any error harmless
beyond a reasonable doubt.27 As previously noted, the motion for new trial was denied.
B.     Analysis
       The parties disagree on the appropriate standard of review. Defendant argues that,
although he raised the issue now before us with a new trial motion, the substance of the
error was the same as an error in jury instructions; hence, we should employ the de novo
standard of review applicable to a claim of instructional error. (See People v. Johnson
(2009) 180 Cal.App.4th 702, 707.) The Attorney General, on the other hand, says we
should use the deferential abuse-of-discretion standard applicable to review of a trial
court’s ruling on a motion for a new trial. (See People v. Thompson (2010) 49 Cal.4th
79, 140.)
       If we needed to determine the appropriate standard of review, the issue would be
complicated by the possibility of juror misconduct. In People v. Clair (1992) 2 Cal.4th
629, 667, the California Supreme Court applied the abuse-of-discretion standard to the
defendant’s claim the trial court erred in denying his new trial motion on the ground the

27     According to the reporter’s transcript, the court stated: “The Court views it as an
application of instruction and that there was not a harmless error that would create some
reasonable doubt about the defendant receiving a fair trial or that the jury did not base its
decision on the law as applied to the case based on the facts and evidence as they found
them to be in the trial.”



                                             30.
jury received evidence out of court.28 In People v. Gamache (2010) 48 Cal.4th 347, 396
(Gamache), however, the state Supreme Court stated it independently reviewed a trial
court’s denial of a new trial motion based on alleged juror misconduct.29
       Defendant’s contention fails whichever standard we apply, and regardless of
whether we treat the legal memorandum in the jury room as potential jury misconduct or
as a species of instructional error. However we view the issue, a prerequisite to
defendant’s claim is a showing one or more jurors actually read the memorandum.
Defendant failed to make any such showing.30
       “To succeed [on a claim of jury misconduct], defendant must show misconduct on
the part of a juror .…” (People v. Marshall (1990) 50 Cal.3d 907, 949, italics added; see,


28     See section 1181, subdivision 2. The trial court’s misdirection of the jury on a
point of law also furnishes grounds for a new trial motion. (Id., subd. 5.)
29      The Gamache court further observed: “Juror misconduct gives rise to a
presumption of prejudice [citation]; the prosecution must rebut the presumption by
demonstrating ‘there is no substantial likelihood that any juror was improperly influenced
to the defendant’s detriment’ [citations]. In contrast, in the absence of misconduct, the
burden remains with the defendant to demonstrate prejudice under the usual standard for
ordinary trial error. [Citations.]” (Gamache, supra, 48 Cal.4th at p. 397.) The court
explained that when jurors consider extrinsic evidence that finds its way into the jury
room through party or court error, such as when a transcript or exhibit “never intended
for the jury’s eyes” is inadvertently provided to the jury, there is no misconduct, but only
ordinary error. When, by contrast, a juror actively or even passively obtains information
about a case from outside sources, it is considered juror misconduct that gives rise to a
presumption of prejudice, even if not truly blameworthy conduct. (Id. at pp. 397-398.)
30      On the record before us, we cannot assume the memorandum was read, or even
that jurors were aware of its presence. Jurors did not ask to examine any or all of the trial
exhibits. Instead, those exhibits were all sent in to them automatically. (Compare People
v. Jackson (1996) 13 Cal.4th 1164, 1213 [jurors specifically requested to see transcript
that, due to clerical error in transposing exhibit numbers of edited and unedited versions,
may have been version not meant for jury].) They were not told they had to review any
or all exhibits; they were simply told they could examine whatever exhibits they thought
would help them. Under the circumstances, we have no way of knowing — or even
surmising — which, if any, of the exhibits jurors reviewed.



                                            31.
e.g., Gamache, supra, 48 Cal.4th at pp. 395-396 [trial court held evidentiary hearing that
revealed jury watched unadmitted videotape inadvertently sent in to jury]; People v.
Brasure (2008) 42 Cal.4th 1037, 1070 [juror admitted in a declaration that she consulted
dictionary before penalty deliberations]; People v. Williams (2006) 40 Cal.4th 287, 330
[after verdict, several pages copied from Bible were discovered in jury room; defendant’s
motion for new trial on grounds of jury misconduct was supported by declarations from
two jurors]; People v. Clair, supra, 2 Cal.4th at pp. 665-667 [upon realizing unredacted
audiotape and transcript were sent in to jurors, trial court examined jurors to determine
what, if anything, jurors had heard or read]; People v. Cooper (1991) 53 Cal.3d 771, 833-
835 [jurors informed court they knew of information contained in material inadvertently
admitted into evidence]; People v. Karis (1988) 46 Cal.3d 612, 642-643 [defendant’s
motion for new trial based on declaration by juror stating another juror consulted
dictionary during deliberations]; U.S. v. Vasquez (9th Cir. 1979) 597 F.2d 192, 193
[official court file inadvertently left in jury room during deliberations; trial court
questioned jurors and learned most had at least glanced at file’s contents].) Even hearsay
is not enough (People v. Hayes (1999) 21 Cal.4th 1211, 1256), and defendant did not
even present that much, but instead merely relied — as he does on appeal — on the fact
the memorandum was sent into the jury room with the exhibits.
       The parties have not called our attention to, and we have not found, any case in
which it has been assumed, on such a bare record, that jurors had actual knowledge of
assertedly improper information. We will not overturn a criminal conviction on such a
meager showing. Nor will we dispense with the need for an adequate showing on the
ground what happened was tantamount to instructional error and a defendant raising an
issue of instructional error need not prove the jury relied on the erroneous instruction.
Even assuming a defendant need not prove the jury relied on the erroneous instruction,
there must be something in the record from which a reviewing court can conclude — not



                                              32.
merely speculate — the jury received the instruction in such a way jurors were aware of
its contents.
        Under any standard, the trial court did not err in denying defendant’s new trial
motion, and defendant has shown no cause for reversal on appeal.
        Defendant says, however, that if the burden was on him to demonstrate the jury
actually viewed the memorandum, then trial counsel was ineffective for failing to
interview jurors or at least obtain juror contact information.
        The burden of proving ineffective assistance of counsel is on the defendant.
(People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-
694.)
        Defense counsel misinterpreted the trial court’s order that the attorneys and their
representatives not contact jurors at any unreasonable time or place as meaning there
could be no contact at all. A reasonably competent attorney would have been aware of
the procedures, which have been set out in Code of Civil Procedure sections 206,
subdivision (g) and 237 for more than 15 years, by which juror contact information may
be sought. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 603-604 [discussing
procedure under previous version of Code Civ. Proc., § 237]; People v. Carrasco (2008)
163 Cal.App.4th 978, 989-990 [noting differences between pre-1996 and post-1996
procedures under Code Civ. Proc., §§ 206, subd. (g), 237].) We, however, have no way

                                             33.
of knowing what defense counsel might have discovered had he undertaken appropriate
action. Defendant has not, therefore, shown he was prejudiced by counsel’s deficient
performance. Defendant’s claim of ineffective assistance of counsel fails on this appeal.
(See People v. Blair (2005) 36 Cal.4th 686, 729.)
                                            IV
                                CUMULATIVE PREJUDICE
       Defendant says the cumulative effect of the trial court’s errors deprived him of a
fair trial. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 844-845; People v. Jasso
(2012) 211 Cal.App.4th 1354, 1378.) “To the extent that there are a few instances in
which we found … the existence of error, we concluded that no prejudice resulted. We
reach the same conclusion after considering [their] cumulative effect.” (People v. Booker
(2011) 51 Cal.4th 141, 195.)
                                             V
                                   SENTENCING ERROR
       The trial court imposed consecutive sentences for defendant’s convictions.
Defendant contends that because both his murder conviction (count 1) and his conviction
for actively participating in a criminal street gang (count 2) were based on the same act of
killing James, sentence on count 2 must be stayed pursuant to section 654.31 Based on
the California Supreme Court’s opinion in People v. Mesa (2012) 54 Cal.4th 191, 197-
200, the Attorney General appropriately agrees. We will modify the judgment
accordingly.32


31      Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
32    This modification does not affect the amount of the court security fee imposed
pursuant to section 1465.8, or the criminal conviction assessment imposed pursuant to


                                            34.
                                     DISPOSITION
       The judgment is modified to provide that execution of sentence imposed on
count 2 is stayed pending defendant’s service of the remainder of his sentence, with said
stay then to become permanent. As so modified, the judgment is affirmed. The trial
court is directed to cause to be prepared an amended abstract of judgment reflecting said
modification, and to forward a certified copy of same to the appropriate authorities.



                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 POOCHIGIAN, Acting P.J.


 _____________________
 PEÑA, J.




Government Code section 70373. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-
484; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)



                                            35.
