Filed 1/14/16 P. v. Gutierrez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B259135

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA393911)
         v.

LUIS HERNANDEZ GUTIERREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Edmund W. Clarke, Jr., Judge. Affirmed.


         Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, David D. Madeo, Deputy Attorney General, for
Plaintiff and Respondent.


                                 _________________________________
       The People charged defendant Luis Gutierrez with a single count of murder in
violation of Penal Code section 1871 along with a gang crime enhancement pursuant to
section 186.22, subdivision (b), and gun enhancements pursuant to section 12022.53,
subdivision (b), (c) and (d), through (e)(1). The jury convicted the defendant of second
degree murder and found all enhancements true. The trial court sentenced defendant to
40 years to life consisting of consecutive terms for 15 years to life on second degree
murder, and, 25 to life for one of the gun enhancements. On appeal, defendant contends
(1) the trial court committed error by denying defendant’s section 1118.1 motion;
(2) insufficient evidence supports his conviction of second degree murder under the
natural and probable consequences doctrine; (3) the trial court violated his constitutional
rights when it denied his request to recall two prosecution witnesses; and (4) the trial
court violated his constitutional rights when it instructed the jury on the natural and
probable consequences doctrine during deliberations. We find no error and affirm the
judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
Murder At MacArthur Park
       On October 26, 2011, Diego Davian was sitting on a park bench in MacArthur
Park at around 7:00 p.m. when he was shot twice from behind. One bullet exited his
neck, while the other, his upper chest. Both were fatal.
       Surveillance video from the park captured the shooting. According to the
testimony from Los Angeles Police Department (LAPD) Detective Christopher
Linscomb, the video shows two individuals walking up to the victim who is sitting on a
bench along a walkway inside the park. Muzzle flashes are seen as one of the individuals
raises his arm towards the victim. The victim runs away while the two individuals run
off westbound.




1     All future undesignated statutory references are to the Penal Code unless
otherwise indicated.

                                              2
Defendant’s Arrest and Statements
       Defendant was arrested on February 10, 2012. At Rampart station, LAPD Officer
Danny Arona, posing as a gang member from the Mara Salvatrucha (MS) gang was
placed in defendant’s holding cell to gather information. Arona told the defendant he
was arrested for robbery and that he was from the MS Hollywood clique. The only other
person in the cell was the defendant. The defendant told Arona he was from MS Park
View clique. During Arona’s conversation with defendant, one of the detectives assigned
to the murder investigation came into the cell to stimulate conversation by making certain
statements concerning Davian’s shooting. After the detective left, Arona asked defendant
why he was in custody. The defendant pointed at the detective who had left and said,
“[f]or that.” According to Arona, defendant indicated the victim was a “chavala,” a
derogatory term used by MS gang members when referring to an enemy, including the
18th Street gang. He stated “Espanto” did the shooting and that he used a .357 revolver.
       On the same day, defendant was interviewed by detectives. Defendant initially
distanced his involvement. He indicated people tied him with MS but that he was not a
gang member. Defendant indicated he observed two people involved in the shooting.
When confronted with the video and advised to tell the truth, defendant indicated he
would be killed if he talked. After being pushed by the detectives to tell the truth,
defendant began to give more information. He said, the other person told him to look out
for the police. Defendant stated the other person’s name is “Cipote” from MS Park View
clique. Defendant identified Cipote as the shooter in a six pack.2 When confronted by
the detective to be more forthcoming, defendant stated he would be killed and asked the
detectives for protection. Defendant stated he met up with Cipote before the shooting
and was told to go with him. An older MS gang member named Guacal told Cipote and
the defendant that they were to go pick something up. Defendant thought it had
something to do with drugs. Defendant and Cipote went to the park on bicycles. Once at

2     “Cipote” is Juan Gamez. Gamez was arrested and charged along with the
defendant for the murder of Diego Davian. Gamez’s case was severed for trial on a
motion filed by the defendant.

                                              3
the park, Cipote told defendant to look out for the police and without telling him why and
walked away. Defendant heard two gunshots. Afterwards, he and Cipote ran away.
Before going to the park, Guacal told Cipote and defendant that “he’s there, he’s there . .
go with him.” Defendant indicated, “I don’t know why they killed him. [Guacal] was
just telling [Cipote], ‘He’s there, he’s there.’ Like I said, since I’m - they don’t consider
me for everything. The gang’s like that, they . . . they exclude you.”
Gang Evidence Adduced At Trial
       During the jury trial, the prosecutor called two witnesses, LAPD officers Nellie
Knight, and Jesus Placencia, to elicit gang evidence.
       Knight testified she worked the gang enforcement detail assigned to the MS gang.
She made three contacts with defendant. On October 22, 2011, Knight encountered
defendant, along with Gamez and a female identified as Jocelyn. Knight completed a
field identification card for defendant and Gamez. Gamez identified his moniker as
“Sipote.” Knight observed gang tattoos on Gamez including an “M.S.” on top of his
head. On November 28, 2011, Knight contacted defendant again with Gamez.
Defendant admitted membership with MS from Park View clique. On December 15,
2011, Knight made contact with defendant who was with five other MS gang members,
including Gamez.
       Placencia testified as the gang expert. Before his current assignment in the
Robbery-Homicide Division, he was assigned to the gang enforcement detail and
monitored the MS gang. Placencia testified that since the mid-1980’s, MS has grown
dramatically and now covers 44 states in the United States, as well as Central America,
and has a membership of close to 40,000. MS is broken down into cliques, each
controlling a geographic territory. Within the Rampart Division of the LAPD, there are
three MS cliques: Coronado, Park View, and Rampart. Park View’s territory is bounded
by 6th Street to the north, Olympic to the south, Hoover to the west, and Alvarado to the
east. MacArthur Park is within the territory claimed by MS Park View clique. MS Park
View clique and 18th Street gang share a border. MS and 18th Street are rivals.
“Chavala” is a derogatory term used by MS gang members to disrespect 18th Street gang

                                              4
members. The primary activities of the MS gang are extortion, robbery, assault with a
deadly weapon and murder. MS gang members often commit crimes in a group to
increase their level of respect within the gang. It is also done to show rival gangs they
are active and to increase their violent reputation. The MS gang is territorial and demand
respect from the community and rival gangs. In order to gain respect, they intimidate the
community and rival gangs by committing violent crimes.
       Placencia further testified he encountered defendant on two to three occasions and
in those contacts, defendant admitted membership in MS Park View clique. He opined
defendant is a member of MS Park View clique. Placencia also testified he knew Gamez
was a member of MS Park View clique.
       When presented with a hypothetical with facts mirroring the incident, Placencia
testified the shooting benefitted the MS gang as a brazen act of violence in the middle of
MacArthur Park which enhanced their violent reputation. He further opined the two gang
members worked in association with one another to commit the crime.
Instructing the Jury After Deliberations Began
       The prosecutor tried the case under a theory defendant directly aided and abetted
the murder committed by Gamez. This is reflected in the prosecutor’s comments to the
jury during opening statement and at the initial closing argument.
       The trial court instructed the jury prior to closing argument. On the theory of
aiding and abetting, the trial court gave CALCRIM No. 400 (Aiding and Abetting:
General Principles) and CALCRIM No. 401 (Aiding and Abetting: Intended Crimes). It
did not give CALCRIM No. 403 (Aiding and Abetting: Natural and Probable
Consequences - Only Non-Target Offense Charged).
       Jurors began deliberation on Friday June 6, 2014. The following Monday, June 9,
2014, the jury asked three questions.
       QUESTION 1: “Clarification please: When the judge gave us instructions,
       he spoke of Murder 1 and Murder 2. Is 2nd degree murder an option in this
       case?”



                                             5
        QUESTION 2: “Is it possible for the shooter to be guilty of 1st degree
        murder while the aider and abettor is guilty of 2nd degree murder?”
        QUESTION 3: “If the jury believes it has been proven beyond a
        reasonable doubt that the [defendant] knew the [perpetrator] intended to
        commit a violent crime though not [necessarily] murder and intends and in
        fact does assist, and the result is 1st degree murder by [perpetrator]; does
        that imply the [defendant] is guilty of A&A [aiding and abetting] 1st degree
        murder, 2nd degree murder, or not guilty?”
        In response to Question 3, the prosecutor made a request to the trial court to
instruct the jury with the natural and probable consequences doctrine with a target
offense of assault. Defense counsel observed the natural and probable consequences
doctrine was not the theory on which the prosecutor tried the case. At that time, the trial
court decided not to instruct on the natural and probable consequences doctrine and re-
directed the jury to some of the instruction already given.
        Later that day, the juror indicated they were at an impasse. The trial court
reassembled the jurors to take a poll. It asked whether any help from the court would
assist the jury in rendering a verdict. All except Juror No. 8 agreed the jury was at an
impasse. After further discussions on the topic of confusion, it was decided Juror No. 8
would formulate a question for the trial court. Before leaving for the day, the jurors
submitted their next written question.
        QUESTION 4: “Please clarify Instruction 401, item 2: Is this specific to
        the crime of murder (The crime) or does it apply to A crime (any intended
        crime) that may lead to murder.”
        The next day, the parties argued on how to respond to the jury’s latest question.
Defense counsel explained if he knew the prosecution intended to argue the natural and
probable consequences doctrine as a theory of liability, he would have asked law
enforcement witnesses how frequent target offenses are committed and how often they
result in homicides. The following exchange took place between defense counsel and the
trial court.

                                               6
“[Counsel]: Basic question is when I have a natural and probable
consequence, when I know what the target offense is, how many of these
target offenses are omitted by this gang. Perfect for the gang officer. And
out of these target offenses, how many result in a homicide? How many
result in this. How many result in that? Those are the type of questions.
Court: So the jury would know, from the data base of the officer, of
crimes, what the probability is that someone who meets another man in a
park with a handgun would know that he intends to commit a simple
assault, which is murder. I think that’s thin. But what would you be calling
officer ----- or Detective Arteaga for.
[Counsel]: We’re assuming now it’s for the target crime of the assault?
Court: Yes.
[Counsel]: Okay.
Court: If [the prosecutor’s] current position was known to you before you
cross examined any witnesses. So now you’re trying to repair that
disadvantage. You’re calling Detective Arteaga. What are you going to get
from him on that topic?
[Counsel]: I’m sorry. Can we start off with the gang officer again?
Court: No, you’re finished with the gang officer.
[Counsel]: Okay. I would argue how many assaults do we have by this
gang? How many assaults are with weapons? What types of weapons do
they use? How many times do they use knives? How many times they use
billy clubs, guns, et cetera.
Court: With your theory being that the jury would end up hearing
statistical rate of occurrence that makes it less probable that your client
would know or anticipate this?
[Counsel]: Yes. Because it’s natural and probable consequences of the gun
and the gun for the assault. So we would have to first go to the number of
guns as opposed to other things used. He says machete. But I would want

                                          7
       to go into other things. Actually it was the gang officer who said machete,
       I apologize. And then go forward from there, yes.
       Court: All right. It seems to me that, again, that’s rather thin and
       questionable whether under 352 I would allow it. Since the question is
       what did the defendant know of this occasion, with this person, not what
       would be the odds of two men meeting in a park, perceiving that a rival or
       an enemy was there, were going to engage in some violence against him.
       I doubt the gang officer, or Detective Arteaga would answer that in any
       way that would help the defendant.”
       The trial court denied defense counsel’s request to call back the officer witnesses.
The trial court proceeded to consider two primary questions before deciding to instruct
the jury on the natural and probable consequences doctrine - sufficiency of the evidence,
and fairness to the defendant. The trial court found sufficient evidence supported the
instruction.
       On the question of fairness to the defendant, the trial court gave defendant an
opportunity to testify. In response, defense counsel argued changing the theory of
liability at the deliberation stage of the trial put the defendant at a disadvantage since he
had made a decision not to testify based on the evidence and theory as submitted to the
jury. The trial court reasoned, “it’s not as if he’s presented a defense to the jury through
his own testimony and now he’s coming back and having to revise his testimony. He’s
got a blank slate if he chooses to testify. And he has the same protections if he chooses
not to testify. All the jury has heard is pretrial statements from you.” The defendant
decided not to testify.
       The trial court decided to instruct the jury on the natural and probable
consequences doctrine. Ultimately, the trial court gave CALCRIM No. 400 (Aiding and
Abetting: General Principles), 401 (Aiding and Abetting: Intended Crime), 403 (Natural
and Probable Consequences - Only Non-Target Offense Charged), and 915 (Simple
Assault).



                                               8
                                       DISCUSSION
I.     Sufficiency of Evidence to Support Denial of Motion for Acquittal under
       Section 1118.1
       Defendant contends the trial court erred when it denied his motion for acquittal
under section 1118.1 at the close of the prosecution’s case-in-chief. We disagree.
       When ruling on a section 1118.1 motion, the trial court determines whether
substantial evidence supports each element of the charged offense, as it stood, at the time
the motion is made. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) “A substantial
evidence inquiry examines the record in the light most favorable to the judgment and
upholds it if the record contains reasonable, credible evidence of solid value upon which
a reasonable trier of fact could have relied in reaching the conclusion in question. Once
such evidence is found, the substantial evidence test is satisfied. [Citation.]” (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052.)
       We review “independently a trial court’s ruling under section 1118.1 that the
evidence is sufficient to support a conviction.” (People v. Trevino (1985) 39 Cal.3d 667,
695.) When circumstantial evidence is involved, “[w]e ‘must accept logical inferences
that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.]
‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of the defendant’s
guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the circumstances
reasonably justify the trier of fact's findings, a reviewing court’s conclusion the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant the judgment’s reversal. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327,
357-358.)
       A. Laws On Murder and Aiding and Abetting
       Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Malice may be either express or implied. Express malice is the intent
unlawfully to kill. (§ 188, subd. (a).) Implied malice is when a “killing show[s] an

                                              9
abandoned and malignant heart.” (§ 188, subd. (a).) According to People v. Thomas
(1953) 41 Cal.2d 470, 480, malice is implied when “the defendant for a base, antisocial
motive and with wanton disregard for human life, does an act that involves a high degree
of probability that it will result in death.” (Id. at p. 480.) People v. Phillips (1966) 64
Cal.2d 574, gives a slightly different definition. There, malice is implied when the killing
is proximately caused by “ ‘an act, the natural consequences of which are dangerous to
life, which act was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for life.’ ” (Id. at
p. 587.)
          Criminal liability through aiding and abetting is included in the definition of
“principals” as set forth in section 31. It provides in pertinent part: “All persons
concerned in the commission of a crime . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not being present, have
advised and encouraged its commission . . . are principals in any crime so committed.”
(§ 31.)
          Under California law, aiding and abetting, like conspiracy, is considered a theory
of vicarious liability. “The critical element which must be found to establish vicarious
liability for the targeted offense is the aider and abettor's intent to facilitate and encourage
that offense.” (People v. Jones (1989) 207 Cal.App.3d 1090, 1096.)
          When relying on aiding and abetting as a theory of vicarious liability, the People
must prove beyond a reasonable doubt that “an aider and abettor act with knowledge of
the criminal purpose of the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the offense. [Citations.]”
(People v. Beeman (1984) 35 Cal.3d 547, 560.) “When the definition of the offense
includes the intent to do some act or achieve some consequence beyond the actus reus of
the crime [citation], the aider and abettor must share the specific intent of the perpetrator.
By ‘share’ we mean neither that the aider and abettor must be prepared to commit the
offense by his or her own act should the perpetrator fail to do so, nor that the aider and
abettor must seek to share the fruits of the crime. [Citation.] Rather, an aider and abettor

                                                10
will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the
perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose
of facilitating the perpetrator’s commission of the crime. [Citations.]” (Ibid.)
       Elements of direct aiding and abetting are satisfied when the People prove the
aider and abettor “[knew] the perpetrator's unlawful purpose and he or she specifically
[intended] to, and [did] in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.”3
       B. Analysis
       Defendant contends the evidence at the close of prosecution’s case-in-chief was
insufficient to show defendant shared Gamez’s intent to kill Davian. Defendant
constructs the foundation of his argument on three bases: (1) that no evidence supports
the conclusion he knew Gamez was armed with a firearm; (2) that no evidence supports
the conclusion he actually “looked out” for Gamez, and (3) that no evidence confirms
Davian was a rival gang member or that defendant knew Davian was an 18th Street gang
member before the shooting.
       The prosecutor primarily relied on circumstantial evidence to prove the case.
“Mental state and intent are rarely susceptible of direct proof and must therefore be
proven circumstantially. [Citations.] Consequently, a defendant’s actions leading up to
the crime may be relevant to prove his or her mental state and intentions at the time of the
crime. [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 355.)




3       Elements on aiding abetting as given in CALCRIM No. 401 provide: “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;
AND 4. 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.”

                                              11
         CALCRIM No. 224 on circumstantial evidence provides, in pertinent part, one
“must accept only reasonable conclusions and reject any that are unreasonable.”
(CALCRIM No. 224.) People v. Holt (1997) 15 Cal.4th 619, instructs “[a]n inference is
not reasonable if it is based only on speculation. [Citation.]” (Id. at p. 669.) In the
instant case, the pertinent question is whether reasonable inferences, as opposed to
speculation, support a finding defendant directly aided and abetted Gamez in the murder.
         The prosecutor relied heavily on defendant’s statements to Officer Arona in lock-
up and to the homicide detectives in the formal interview to prove the case. In assessing
these various statements, it is appropriate to evaluate the value and weight of these
statements by taking into consideration the defendant’s interests, bias and motives when
they were made.4
         At face value, defendant did not state: (1) that he knew Gamez was armed with a
firearm before the shooting, (2) that he actually looked out for Gamez when requested,
and (3) that he knew before the shooting that Davian was an enemy from the 18th Street
gang.
         However, when viewed in the light of his interests, bias and motive at the time the
statements were made, negative inferences emerge. In his lock-up conversation with
Officer Arona, defendant knew he had been arrested by the LAPD for a shooting that
resulted in Davian’s death. He made statements, such as identifying Davian as a
“chavala” and describing the weapon as a .357, that show he may have been more than a
bystander. Although defendant did not fully admit to participating in the murder, this is
not surprising as Officer Arona, though feigning to be a fellow gang member, was a
complete stranger. It is obvious, defendant did not know to what extent he could trust
Arona.




4       While defendant’s statements were not testimony under oath, it is helpful for fact
finders to consider the truth and accuracy of defendant’s statements including attitude,
bias, interest, motives or personal relationships by referring, for example, to the list of
factors under CALCRIM No. 226 for assessing witness credibility.

                                              12
       In the interview with the detectives, the record reveals defendant started out by
being untruthful. He minimized his involvement. Defendant acted as if he was a witness
instead of a participant by telling the detectives he observed two people shoot someone.
He knew, however, the detectives had a video of the incident. Defendant had not seen
the video. He could not have known what the video depicted. On the other hand, he
knew the video showed what happened as the detectives made reference to Gamez and
defendant’s movements that were consistent with what they had done. Defendant was
verbally pushed to tell the truth and was constantly reminded of the video. In this
interrogation setting, it is not unreasonable to conclude defendant revealed just enough to
keep the pressure off while minimizing his role and denying full participation.
       With a motive to minimize his role, defendant told the detectives he was sent by
Guacal, a person defendant explained was an older MS gang member, along with Gamez
to the park. While he indicated Guacal told them to go and pick something up, intimating
the errand may have been drug related, defendant also stated Guacal told Gamez that
“he” was there, indicating Gamez was being sent to the park to either meet up with, or,
confront someone. From any angle, defendant’s statement as to why Guacal had
assigned Gamez and defendant to go to the park lacks clarity – the hallmark for the ring
of truth. A plausible explanation for this uncertainty is defendant was not truthful and
was minimizing. If so, it is reasonable to infer Guacol said more. And, based on the
action Gamez took, that more may have been to kill a rival at the park.
       Additional evidence circumstantially supports this inference. First, defendant and
Gamez appear to be friends or close associates. This is established by the testimony of
Officer Knight who, in a month or so, made three random contacts with defendant who
was always with Gamez. From this, it is reasonable to conclude if Knight saw them
together on three random occasions, the two must associate with one another more
frequently. Second, defendant and Gamez are members of MS, Park View clique. This
is established through the testimony of Officer Placencia as well as Officer Arona and
Knight. It is reasonable to conclude, as friends or close associates who are also fellow
gang members, the two have an interest in working together to enhance their respective

                                            13
reputations both in the gang and with their rivals. Third, MacArthur Park is located
within the claimed territory of MS Park View clique adjacent to the territory of their
rival, the 18th Street gang. It is reasonable to infer MS gang members, including Gamez
and defendant, would be expected to protect their turf from rivals through violence.
Fourth, MS gang members commit crimes in order to enhance their reputation both
within the gang as well as with their rivals. This is supported by the gang expert’s
testimony.
       There is no dispute Gamez killed Davian. The record also establishes defendant
was with Gamez when Davian was killed. Analyzing Gamez’s actions is appropriate to
assess defendant’s involvement. Either Gamez acted alone or he and defendant worked
together. Is it reasonable to conclude Gamez would keep his murderous intent a secret
from defendant who appears to be a gang friend or close associate who alone was his
potential back-up? On the other hand, is it consistent with basic human behavior that
Gamez who was intent on taking the life of a person thought to be a rival, exposing
himself to danger of arrest or retaliatory violence from a rival gang, would share that plan
with defendant? While Gamez could have been a rogue criminal, it is just as plausible,
perhaps even more logical that Gamez would have shared his plan with defendant and
that they worked together. The latter is a reasonable inference based on the evidence
adduced at trial.
       When we arrive at a logical and reasonable inference, we are at the end of our
review. We hold substantial evidence supports the trial court’s denial of the section
1118.1 motion.
II.    Sufficiency of Evidence to Support the Verdict
       Defendant next contends insufficient evidence supports his conviction of second
degree murder under the natural and probable consequences doctrine. We disagree.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a

                                             14
reasonable doubt. [Citation.] The federal standard of review is to the same effect:
Under principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
       A. Natural and Probable Consequence Doctrine
       An aider and abettor is not only guilty of the crime originally intended, but of any
crime actually committed so long as the commission of that crime was reasonably
foreseeable. Under the natural and probable consequence doctrine, the “ ‘question is not
whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable. [Citations.]’ ” (People v. Medina (2009)
46 Cal.4th 913, 920 (Medina).) A reasonably foreseeable consequence is to be evaluated
under all the factual circumstances of the individual case and is a factual issue to be
resolved by the jury. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376; People v.
Godinez (1992) 2 Cal.App.4th 492, 499.)




                                              15
       B. Analysis
       The defendant contends the facts adduced at trial “was not the typical gang
encounter where there was evidence that two or more gang members mutually decided to
approach an individual or a rival gang member and assault them, while calling out some
gang challenge or engaging in mutual combat.” We disagree.
       The factual analysis under section I.B applies with equal force in analyzing the
sufficiency of the evidence to support the murder conviction based on the natural and
probable consequences doctrine. Defendant’s statements, like a coin, has two sides --
what was said and what was left unsaid. If a person decides to lie, or to tell half-truths,
radically different inferences emerge. The record reveals defendant was not entirely
truthful.
       As explained earlier, the negative inferences derived from defendant’s statements
in combination with logical inferences from the gang evidence establishes a reasonable
conclusion Guacal had sent defendant and Gamez on a violent mission to the park. Based
on Gamez’s subsequent action, it is not unreasonable to conclude the mission was to kill
a rival. On the other hand, as a step down from this conclusion, it is also plausible
defendant and Gamez went to the park to assault a rival who had encroached in their
territory.
       During the trial, Officer Placencia testified concerning the gang’s view of
protecting their reputation in their territory:
       “A gang is -- usually has its territory within a couple blocks or little section within
-- I’ll refer to L.A. city. That’s their territory. And they demand respect. They demand
respect not only from other gang members, but respect from the community. The tagging
on the wall, that’s a sign, like a newspaper. They want the respect. They want the
neighborhood to know this is their hood. This is their territory. By doing that they
intimidate the community. And respect is pretty much, probably for the hispanic gangs,
for the gang itself, is the number 1 thing that gangs seek for.”




                                                  16
       Officer Placencia testified gangs gain respect by committing crimes ranging from
low grade vandalism all the way up to murder. He further testified gang members
commit crimes in open public to “[show] the community, and the other rival gang
members, that they’re not afraid to commit the crime.”
       In Medina, the California Supreme Court reversed a Court of Appeal which had
found the evidence adduced at trial insufficient to support a murder conviction based on
the natural and probable consequences doctrine. (Medina, supra, 47 Cal.4th at pp. 921-
922.) The Court of Appeal identified six relevant factors from prior positive cases on the
natural and probable consequences doctrine.5
       The Medina court wrote, “[i]n evaluating this case, the Court of Appeal found it
significant that none of the above factors were present, focusing on facts that were
missing, rather than on the actual evidence presented. [Citation.] However, as the
Attorney General points out, prior knowledge that a fellow gang member is armed is not
necessary to support a defendant’s murder conviction as an aider and abettor. [Citations.]
Likewise, prior gang rivalry, while reflecting motive, is not necessary for a court to
uphold a gang member’s murder conviction under an aiding and abetting theory.
[Citation.] Thus, although evidence of the existence of the above listed factors may
constitute sufficient evidence to support an aider and abettor’s murder conviction under
the natural and probable consequence theory, these factors are not necessary to support
such a conviction. [Citation.] We do not view the existence of those factors as an
exhaustive list that would exclude all other types and combinations of evidence that could
support a jury’s finding of a foreseeable consequence. [Citation.] In other words, the
absence of these factors alone is not dispositive.” (Medina, supra, at pp. 921-922.)


5       The six factors are: “ ‘(1) the defendant had knowledge of the weapon that was
used before or during his involvement in the target crime; (2) the committed crime took
place while the target crime was being perpetrated; (3) weapons were introduced to the
target crime shortly after it ensued; (4) the fight which led to the committed crime was
planned; (5) the gangs were engaged in an ongoing rivalry involving past acts of
violence; or (6) the defendant agreed to or aided the commission of the committed
crime.’ ” (Medina, supra, 46 Cal.4th at p. 921.)

                                             17
       In examining the whole record in the light most favorable to the prosecution,
based on the combinations of evidence presented to the jury in this case, we conclude a
rational trier of fact could have found Davian’s killing was a reasonably foreseeable
consequence of the gang assault.
       First, as the gang expert testified, gang members protect their territory by resorting
to violence to enhance their reputation. The record establishes MacArthur Park was
within the territory claimed by the MS Park View clique. It is not unreasonable to
conclude members from the MS Park View clique would resort to murder to protect their
territory, including the park.
       Second, the record reveals MS is a growing violent gang which commits violent
crimes such as assault with a deadly weapon and murder. Law enforcement identified
Gamez and defendant as members of the MS Park View clique and the two had been
identified together on multiple occasions. It is reasonable to conclude those who join a
notoriously violent gang have themselves the capacity to commit crimes of violence.
       Third, expert testimony establishes MS Park View clique and 18th Street are rivals
and share a common border along MacArthur Park. Officer Arona testified the defendant
identified the person killed as a “chavala” which refers to an enemy including gang
members from the 18th Street. It is reasonable to conclude an assault on a rival could
quickly turn deadly.
       Fourth, the assault and the murder were not interrupted and separate events but
instead occurred in the flow of one transactional event. Indeed, the assault and the killing
were consecutive events that happened as one continuous action. In other words, there
were no intervening events between the assault and the murder affecting the chain of
causation.
       Fifth, the negative inferences from defendant’s statements to Officer Arona and
the homicide detectives together with the video showing the two together at the time of
the shooting support a reasonable conclusion defendant and Gamez were on a mission to
do violence.



                                             18
       On the record before us, we are convinced a rational jury could conclude the
killing was a reasonably foreseeable consequence of helping Gamez commit a gang
assault. We hold substantial evidence supports the jury’s guilty verdict of second degree
murder under the natural and probable consequences doctrine.
III.   Trial Court’s Decision to Instruct on Natural and Probable Consequences
       Doctrine and Denial of Request to Recall Officer Witnesses
       The defendant’s last two contentions – whether the trial court violated his Sixth
and Fourteenth Amendment rights,6 when it instructed the jury on the natural and
probable consequences doctrine during jury deliberations and when it denied defendant’s
request to recall two officer witnesses – requires that we answer a total of four questions.
       First, defendant’s contention challenging the trial court’s decision to instruct on
the natural and probable consequences doctrine during jury deliberations contains three
sub-parts (1) the constitutional adequacy of the notice concerning the theory of liability;
(2) whether substantial evidence supported the trial court’s decision to instruct; and
(3) whether the trial court abused its discretion in giving the instruction to a deliberating
jury. Defendant’s other contention concerning the trial court’s denial of his request to
recall officer witnesses triggers an abuse of discretion analysis on the trial court’s
decision.
       A. Decision to Instruct
       In the instant case, the trial court was presented with a jury question during
deliberation. On the second day of deliberations, the jury asked a series of questions
culminating with Question 4 which inquired, “[p]lease clarify Instruction 401, item 2:
Is this specific to the crime of murder (The crime) or does it apply to A crime (any
intended crime) that may lead to murder.” CALCRIM No. 401, item 2 states, “[t]he
defendant knew that the perpetrator intended to commit the crime[.]” Under direct aiding
and abetting, the crime referred to in CALCRIM element 2 is the crime of murder. If on



6       The specific constitutional rights defendant asserted were his rights to due process,
to a fair trial, to counsel, to confrontation and to present a defense.

                                              19
the other hand, that crime may be any intended crime “that may lead to murder,” this
suggested the application of the natural and probable consequences doctrine.
       It is fair to say, based on the lengthy discussions on the record that occurred
thereafter, both sides as well as the trial court, were taken by surprise. Thereafter, the
trial court (1) considered defendant’s request to call back two officer witnesses which it
denied; (2) offered defendant the opportunity to testify which the defendant declined;
(3) gave the prosecutor and defense counsel an opportunity to argue the natural and
probable consequences doctrine to the jury which both did; and (4) answered the jury’s
question by re-reading some instructions and giving additional instructions on the natural
and probable consequences doctrine.
       B. Adequacy of Notice
       Defendant argues “the prosecutor was allowed to ambush the defense with a new
crime, albeit a target crime, and an alternate theory of the crime, after the evidence was
submitted.” Relying on Sheppard v. Rees (1990) 909 F.2d 1234 (Sheppard), and People
v. Marzett (1985) 174 Cal.App.3d 610, defendant contends he was denied constitutionally
adequate notice of the new theory of liability which deprived him of his right to effective
representation of counsel.
       Resolving defendant’s claim on the adequacy of notice involves questions of
constitutional law and mixed questions that are predominantly legal. As such, we review
this contention de novo. (People v. Quiroz (2013) 215 Cal.App.4th 65, 70 (Quiroz).)
Our review of the record reveals defendant’s contention lacks merit.
       Under California’s short-form pleading practice, a prosecutor who charges a
defendant as a principal is deemed to also have charged him as an aider and abettor.
(§ 971.) “[I]n California the definition of a principal has historically included those who
aid and abet (§ 971), and notice as a principal is sufficient to support a conviction as an
aider or abettor.” (People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12.) In other
words, a defendant may be convicted of aiding and abetting without the charging
document specifically reciting the aiding and abetting theory so long as he or she is
charged as a principal to the substantive offense. (Ibid.) Criminal liability under aiding

                                             20
and abetting may be established directly or through the natural and probable
consequences doctrine.
       A criminal defendant also has a right to be informed of the charges under the
federal constitution. (Quiroz, supra, 215 Cal.App.4th at p. 70.) Whether the short-form
pleading practice in California is constitutionally adequate is unsettled. (Ibid.) Notice is
adequate if the factual basis of the theory was presented at the preliminary hearing.
(See People v. Roberts (1953) 40 Cal.2d 483, 486 [“[T]he evidence adduced at the
preliminary hearing will adequately inform the defendant of the prosecution’s theory
regarding the manner and degree of killing.”]) It is also satisfied “by the People’s
express mention of that theory before or during trial sufficiently in advance of closing
argument. [Citations.]” (Quiroz, supra, 215 Cal.App.4th at pp. 70-71.)
       Defendant concedes “under California’s practice of short-form pleading, an
instrument charging a defendant as a principal is deemed to charge him as an aider and
abettor as well.” Defendant’s contention rests primarily on Sheppard, a case where the
Ninth Circuit reversed a state murder conviction on a habeas petition based on a
prosecutor’s end of trial request for an instruction on an unexpected theory of liability
which, in the court’s view, “ambushed” the petitioner. (Sheppard, supra, 909 F.2d at
p. 1236.)
       In Sheppard, the petitioner was charged with murder and tried on a theory of first
degree murder which was willful, deliberate and premeditated. After all the evidence
was presented and jury instructions argued and settled with the trial court, the prosecutor
came up with a new theory of first degree murder under the felony-murder rule. The trial
court granted the prosecutor’s request and gave the felony-murder instruction. The
petitioner was convicted of first degree murder.
       In finding error, the Sheppard Court noted, “the prosecutor ‘ambushed’ the
defense with a new theory of culpability after the evidence was already in, after both
sides had rested, and after the jury instructions were settled. This new theory then
appeared in the form of unexpected jury instructions permitting the jury to convict on a



                                             21
theory that was neither subject to adversarial testing, nor defined in advance of the
proceeding.” (Sheppard, supra, 909 F.2d at p. 1237.)
       Quiroz cites Sheppard and explains, “[w]hat due process will not tolerate is the
People affirmatively misleading or ambushing the defense with their theory. [Citations.]”
(Quiroz, supra, 215 Cal.App.4th at p. 71.) On Sheppard’s continuing reach and vitality,
“California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and
limited it to its facts.” (People v. Lucas (1997) 55 Cal.App.4th 721, 738.) After
Sheppard, the Ninth Circuit has held no ‘ambush’ occurs if felony-murder instructions
are mentioned for the first time at an initial instructions conference, so long as trial
evidence supports the theory and the defense has a day or more to prepare oral argument.
(See Morrison v. Estelle (1992) 981 F.2d 425, 428 [“At [defendant’s] trial, the prosecutor
requested felony-murder instructions at the initial instructions conference and
[defendant’s] counsel had two days in which to prepare a closing argument. No ambush
occurred at [defendant’s] trial”])
       Finally, “[w]hile federal circuit court precedent on issues of federal law is
certainly entitled to substantial deference, it is not binding. [Citations.]” (Yee v. City of
Escondido (1990) 224 Cal.App.3d 1349, 1351.)
       Defendant claim he was “ambushed” by the prosecutor. However, the record on
appeal reveals otherwise. The triggering event which led to the instruction on the natural
and probable consequences doctrine did not originate with the prosecutor but was raised
by the jury. While it is true, the prosecutor requested the trial court to instruct on the
natural and probable consequences doctrine in response to the jury question, that request
is distinctly different from the conduct of the prosecutor in Sheppard who alone came up
with the idea at the conclusion of the trial. Unlike Sheppard, the prosecutor’s request
here was not the result of prosecutorial gamesmanship. The prosecutor in no way
affirmatively misled the defendant.
       Furthermore, nothing suggests the evidence supporting the natural and probable
consequences doctrine was any different from that presented at the preliminary hearing.
While the divisibility of Gamez’s criminal act (shooting Davian as a combination of

                                              22
simple assault and murder) and the reasonable inference of defendant’s mental state
supporting that theory (that he aided and abetted a simple assault derived from
defendant’s statements to the police) may not have been readily apparent to either
counsel, nevertheless, no new evidence from that originally charged was introduced.
The evidence, susceptible to this theory was provided to the defense well in advance of
the trial providing sufficient notice. Finally, when Question 4 was raised by the jury,
defense counsel had approximately a day to prepare and consider how to defend against
the doctrine, including the possibility of re-opening evidence and formulating an
argument against the application of the doctrine. The circumstances here are not
analogous to Sheppard. We hold defendant was not deprived constitutionally adequate
notice. Accordingly, his deprivation of counsel claim also fails.
       C. Whether Substantial Evidence Supported the Natural and Probable
       Consequences Instruction
       We review de novo a trial court’s decision either to instruct or refuse to instruct.
“Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that[.]. . is . . . predominantly legal. As
such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th
690, 733.)
       On when to instruct on the natural and probable consequences doctrine, People v.
Prettyman (1996) 14 Cal.4th 248, explains “[t]he trial court should grant a prosecutor’s
request that the jury be instructed on the ‘natural and probable consequences’ rule only
when (1) the record contains substantial evidence that the defendant intended to
encourage or assist a confederate in committing a target offense, and (2) the jury could
reasonably find that the crime actually committed by the defendant’s confederate was a
‘natural and probable consequence’ of the specifically contemplated target offense.
If this test is not satisfied, the instruction should not be given, even if specifically
requested.” (Id. at p. 269.) “Substantial evidence is evidence sufficient to ‘deserve
consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.”
(People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8)

                                               23
       Defendant’s statements to homicide detectives are reasonably susceptible to
logical negative inferences supporting the natural and probable consequences doctrine.
As a prime suspect in Davian’s murder, defendant had a motive to lie, or, to minimize his
involvement. While defendant never stated he and Gamez were sent by Guacal to assault
or kill Davian, he admitted both were sent by Guacal, an older gang MS Park View gang
member, to the park to pick up, possibly, some drugs. If, however, defendant minimized
his involvement, it is not unreasonable to conclude, defendant and Gamez were sent on a
mission to assault a rival.
       The gang evidence adduced further supports the natural and probable
consequences doctrine. Officer Placencia, the gang expert, testified the MS gang is a
violent gang boasting membership of approximately 40,000. MacArthur Park is located
in a territory claimed by the MS Park View clique, a gang to which defendant belongs.
Defendant identified Davian to Officer Arona as a “chavala” a term referring to a
potential rival from the 18th Street gang. Officer Placencia testified gang members
protect their territory in order to enhance their reputation and gain control.
       Our independent review of the record reveals substantial evidence supported the
trial court’s decision to instruct the jury on the natural and probable consequences
doctrine.
       D. Whether Trial Court Abused Its Discretion by Instructing a Deliberating
       Jury
       The trial court gave the natural and probable consequences doctrine in response to
a jury question posed during deliberations. “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,
supra, 22 Cal.4th at pp. 745-746.)
       “Under the abuse of discretion standard, ‘a trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)

                                              24
       Section 1093 provides a general order of trials. Instructing the jury should follow
the close of evidence and arguments of counsel. (§ 1093, subds. (e) & (f).) Upon good
cause, section 1094 authorizes a trial court to depart from the sequential order set forth in
section 1093. Regarding the timing on instructing a jury, trial courts are vested with wide
discretion on when to do so. (People v. Smith (2008) 168 Cal.App.4th 7, 14.)
       The Attorney General relies on People v. Ardoin (2011) 196 Cal.App.4th 102
(Ardoin), and argues the trial court’s decision to instruct was supported by substantial
evidence and was properly given to assist the jury under section 1138.7
       Under section 1138, a trial court has a duty to “to provide the jury with
information the jury desires on a point of law.” (People v. Smithey (1999) 20 Cal.4th
936, 985, fn. omitted.) This does not mean every question asked must necessarily be
answered. Instead, the trial court is vested with discretion under section 1138 “to
determine what additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
       Ardoin involved a joint murder prosecution of two defendants. Appellant was
prosecuted under first degree malice aforethought as the direct perpetrator of the murder.
The co-defendant was tried under aiding-and-abetting and felony murder theories.
(Ardoin, supra, 196 Cal.App.4th at p. 123.) The jury was instructed accordingly. During
deliberations, the jury asked whether the appellant, if found not to be the perpetrator,
could still be found guilty of felony murder. (Id. at p. 124.) The trial court ultimately
amended the felony murder instruction to include the appellant. Thereafter, appellant
was convicted of first degree murder.




7       Section 1138 provides: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.”

                                             25
       In his appeal, appellant there cited Sheppard and argued “the trial court deprived
him of the rights to effective assistance of counsel and due process by instructing the jury
‘on a new theory of liability after the start of deliberations[.]’ ” (Id. at pp. 125-126.)
       In denying appellant’s contention, the Ardoin court, among other reasons,
explained, “[a]lthough the prosecution pursued what it viewed as the strongest case
against [appellant] by arguing that he was the actual killer, the evidence presented at trial
also suggested the jury might find him guilty under the felony-murder rule as a
perpetrator of the robbery and aider and abettor of the crime committed by another.
Despite the focus of the prosecution and defense theories of the case, the court properly
modified the felony-murder instruction in accordance with the evidence presented by
including a reference to both defendants. [Citations.] ‘[T]he court is not precluded from
giving any instruction for which there is evidentiary support. The fact that a party did not
pursue a particular theory does not preclude the trial judge from giving an instruction on
that theory where it deems such an instruction to be appropriate.’ [Citation.]” (Ardoin,
supra, at p. 128.)
       Here, when the jury asked Question 4, the trial court was under an obligation to
assist the jury under section 1138. As we concluded earlier, substantial evidence
supported the instruction on the natural and probable consequences doctrine. That the
prosecutor at first focused on direct aiding and abetting, although certainly a factor to
consider, did not, as explained in Ardoin, preclude the trial court from instructing on the
natural and probable consequences doctrine.
       In the instant case, we find no abuse of discretion. When each step of the trial
court’s various decisions are considered, a well reasoned sequential approach emerges.
First, the trial court determined whether substantial evidence supported instructing on the
natural and probable consequences doctrine. Second, it considered the stage of the trial
and fairness concerns raised by the defendant. The trial court gave defendant an
opportunity to testify and permitting counsel to re-argue the case. Only after considering
each of these steps did the trial court finally give the instructions on the natural and



                                              26
probable consequences doctrine to the jury. Based on this record, we cannot say the trial
court actions were arbitrary and capricious.
       E. Denial of Defendant’s Request to Recall LAPD Witnesses
       Defendant finally argues the trial court’s denial of his request to call back Officer
Placencia and Detective Arteaga for additional questioning was arbitrary as having “pre-
judged what the gang expert or Arteaga were going to say and assume that the jury would
take nothing from their re-opened testimony.” He argues the trial court’s error violated
his federal constitutional rights to confrontation and to present a defense. Contrarily, the
Attorney General argues “[t]he trial court was well within its discretion in denying
defense counsel’s request to call back Officer Placencia, the gang expert, and Detective
Arteaga, the investigating officer, because such reopened testimony plainly lacked
relevance.”
       Evidence Code section 778, authorizes the trial court to call back witnesses who
have testified. It provides, “[a]fter a witness has been excused from giving further
testimony in the action, he cannot be recalled without leave of the court. Leave may be
granted or withheld in the court’s discretion.” The decision to recall witnesses is left to
the sound discretion of the trial court. (People v. Keith (1875) 50 Cal. 137, 140, People
v. Thomas (1992) 2 Cal.4th 489, 542.)
       On defendant’s claim of federal constitutional error, “ ‘[a]s a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused’s right to present
a defense.’ ” (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) Furthermore, despite “the
confrontation clause, a trial court may restrict cross-examination of an adverse witness on
the grounds stated in Evidence Code section 352.” (People v. Quartermain (1997) 16
Cal.4th 600, 623.)
       In the instant case, defense counsel’s offer of proof focused on statistical
probabilities on the occurrence rate of murders that result from assaultive crimes
committed by the MS gang members. The trial court responded, “[i]t seems to me that,
again, that’s rather thin and questionable whether under 352 I would allow it. Since the
question is what did the defendant know on this occasion, with this person, not what

                                               27
would be the odds of two men meeting in a park, perceiving that a rival or an enemy was
there, were going to engage in some violence against him. I doubt the gang officer, or
Detective Arteaga, would answer that in any way that would help the defendant.”
         “ ‘[A] court need not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows the court was aware of
and performed its balancing function under Evidence Code section 352.’ ” (People v.
Lewis (2009) 46 Cal.4th 1255, 1285.)
         The trial court did not abuse its discretion in finding defendant’s proposed line of
questions inadmissible under Evidence Code section 352. The trial court implicitly found
defense counsel’s offer of proof speculative and minimally relevant. The pertinent
question is what a reasonable person in defendant’s position would have known under the
circumstances of aiding and abetting the target crime.8 General statistical probabilities
on the occurrence rate of murders that result from assaultive crimes committed by the MS
gang members is only minimally relevant to shed light on that subject. Indeed, a single
incident, given the circumstances, could lead to a conclusion of reasonable foreseeability.
As such, defendant’s offer of proof was over-broad, speculative and lacking in probative
value.
         Assuming the trial court erred, the error was harmless. The defendant’s right of
confrontation is not absolute. (Curry v. Superior Court (1970) 2 Cal.3d 707, 715.) The
trial court’s reliance on Evidence Code section 352 to exclude evidence “generally does
not contravene a defendant’s constitutional rights to confrontation and cross-examination.
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 545.)
         “Although defendant attempts to frame the issue as one of federal constitutional
dimension, this is not correct. ‘As a general matter, the “[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a


8       Element 3 of CALCRIM No. 403 given to the jury stated, “[u]nder 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 simple assault.”

                                               28
defense.” [Citations.] . . . Accordingly, the proper standard of review is that announced
in [People v. Watson (1956) 46 Cal.2nd 818 (Watson)] and not the stricter beyond-a-
reasonable-doubt standard reserved for errors of constitutional dimension. [Citations.]
Application of Evidence Code section 352 is within this principle. [Citation.]” (People
v. Paniagua (2012) 209 Cal.App.4th 499, 524.) Under the Watson test, we ask whether it
is reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error. (Watson, supra, 46 Cal.2d at p. 837.)
       “The determination whether a particular criminal act was a natural and probable
consequence of another criminal act aided and abetted by a defendant requires application
of an objective rather than subjective test. [Citations.] This does not mean that the issue
is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a
factual question to be resolved by the jury in light of all of the circumstances surrounding
the incident. [Citations.] Consequently, the issue does not turn on the defendant’s
subjective state of mind, but depends upon whether, under all of the circumstances
presented, a reasonable person in the defendant’s position would have or should have
known that the charged offense was a reasonably foreseeable consequence of the act
aided and abetted by the defendant. [Citations.]” (People v. Ngyuen (1993) 21
Cal.App.4th 518, 531.)
       In the instant case, the critical factual focus, as explained in Nguyen, is on the
incident itself -- Gamez’s shooting of Davian, to determine, by looking at all of the
circumstances surrounding the shooting, whether a person in defendant’s position would
have or should have known murder was a reasonably foreseeable consequence of the
assault.
       Defendant’s proposed line of questioning would tend to establish the general
statistical probabilities on the occurrence rate of murders that result from assaultive
crimes committed by the MS gang members. We observe a few problems. First, we do
not know what Officer Placencia or Detective Arteaga would have ultimately said in
testimony. As such, the analysis rests in large measure on conjecture and speculation.
Second, even if the witnesses would have testified that not all assaults committed by MS

                                             29
gang members result in a murder, such testimony does not take into account the specific
facts about how those assaults may have occurred. Such testimony has little to no
comparative value to Davian’s shooting in the park. Third, it seems likely no expert
testimony is required to argue that not all assaults result in a murder. This conclusion
was already established through the gang expert’s testimony that MS gang members
commit crimes of violence such as robberies and assault with deadly weapons - meaning,
these crimes did not result in homicides. The proposed testimony is far too weak and
speculative to have any meaningful impact on the outcome of the trial. As such, it is not
reasonably probable defendant would have obtained a more favorable result but for the
alleged error.
       We hold the trial court did not abuse its discretion in denying defendant’s request
to recall Officer Placencia and Detective Arteaga. Consequently, we necessarily deny
defendant’s constitutional claims.
                                     DISPOSITION
       The judgment is affirmed.




                                                        OHTA, J.*
We concur:




                 RUBIN, ACTING P. J.




                 GRIMES, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            30
                      PEOPLE v. LUIS GUTIERREZ – B259135


J. RUBIN, Concurring:


       I concur in the decision of the court but write separately to comment on
the events that occurred after the jury began its deliberations. To say that the question
asked by the jury, which focused court and counsel on the previously unarticulated
natural and probable consequences theory, was jaw dropping is perhaps an
understatement. Jaw unhinging may be more appropriate.
       In response to the jury’s dynamite question, the court understandably treaded
carefully, balancing the prosecutor’s right to pursue a theory that was supported by the
evidence and defendant’s right to a fair trial and to not have fundamental assumptions
about the case erased at the last minute. The Reporter’s Transcript reveals a trial court
that diligently tried to achieve a reasonable medium. And I agree with the majority that it
correctly responded to the jury’s question with instructions on the natural and probable
consequences doctrine.
       A much closer question in my mind was the court’s statement that it would not
allow the defense to recall police officer witnesses to explain the circumstances in which
a gang assault might lead to a gang murder. Ultimately, I conclude that, on this record,
the trial court did not abuse its discretion. I observe, however, that courts allow gang
experts to opine on all sorts of facts related to gang life and gang crime. Defendant’s
proposed foray did not seem to be too far afield. The majority points out that we do not
know what the gang officers would have said but of course defense counsel had had no
time to talk to the gang officers about what the police witnesses might testify on the
subject. Which brings me to the point that bothers me the most about the way this case
concluded. Why the rush? There is no doubt the defense was severely damaged by the
juror’s question. The court even offered to declare a mistrial if the parties had stipulated.
The record at least implicitly indicates neither party took the court up on the offer. There
was then further discussion about whether the defendant, who had not testified, would
testify if the case were reopened. The defense apparently concluded this would raise
more questions than answer them. Defendant did not testify.
       Absent from the discussion among court and counsel was the subject of an
adjournment of the trial for a few days to provide the defense with a reasonable
opportunity to consider options, including conferring with the police officers – if they
would have spoken to counsel – or consulting with potential defense experts on issues
that legitimately arose when the theory of the case changed. As thoughtful as the court
was in considering a variety of options, this was apparently not one of them. I put no
particular blame on the court because defense counsel did not ask for a continuance so we
do not know what the trial court would have done upon a proper request. What the
record does reveal is that, as court and counsel talked, the deliberating jury was waiting
and there was considerable pressure to move forward in the efficient pursuit of a verdict.
Perhaps this is one of those cases when efficiency should have taken a back seat to
ensuring a just resolution.




                                                         RUBIN, J.




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