Filed 7/6/15 P. v. Albarran CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067418

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF060734)

MARCOS ALBARRAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Riverside County, Victoria E.

Cameron, Judge. Reversed.

         Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Marcos Albarran of first degree murder (Pen. Code,1 § 187,

subd. (a); count 1); three counts of premeditated attempted murder (§§ 187/664; counts 2-

4); and the discharge of a firearm at an occupied vehicle (§ 246; count 5). As to all

counts, the jury also found that the offenses were committed for the benefit of a criminal

street gang (§ 186.22, subd. (b)(1)) and a co-principal, acting to benefit a criminal street

gang, discharged a firearm and caused great bodily injury or death (§ 12022.53, subds.

(c), (d), & (e)).

       The superior court sentenced Albarran to prison for 50 years to life, comprised of

25 years to life each for the offense and firearm enhancement as to count 1. The court

further sentenced Albarran to prison for three concurrent terms of life with the possibility

of parole plus 25 years to life for the offenses and enhancements as to counts 2 through 4,

and also imposed and stayed the sentence for count 5.

       Albarran appeals, contending under People v. Chiu (2014) 59 Cal.4th 155 (Chiu),

(1) he could not be convicted of first degree murder under a natural and probable cause

theory; (2) the trial court committed prejudicial error by providing the jury with an

outdated version of CALCRIM No. 400; (3) the trial court improperly admitted other

crimes evidence; (4) the prosecutor committed prejudicial misconduct; and (5)

cumulative error warrants reversal. We agree that Chiu is controlling and Albarran could

not have been convicted of first degree murder under the natural and probable

consequences doctrine. Also, we agree with Albarran that cumulative error rendered his


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

                                              2
trial fundamentally unfair. We therefore reverse the judgment and remand this matter for

a new trial.

                              FACTUAL BACKGROUND

                                       Prosecution

       On September 3, 2007, Manuel Duarte and Ulises Morales had a family get-

together at their house in Thermal, California. Ulises's cousins, Edgar Cruz and Geovani

Morales, attended the event. Late that afternoon, Geovani drove Duarte, Ulises, and Cruz

to the market in his Honda to purchase beer. After buying beer, the young men went

"cruising" for women. They played the music in the Honda loudly as they drove past La

Chicanita Market and toward Lawson's Mobile Home Park on 70th Avenue. As they

drove past La Chicanita, Ulises saw two men, later identified as Albarran and Pedro

Mendiola, making gang hand signs and the "what's up" gesture, and shouting "Varrio

Oasis" at them. No one in Geovani's car said anything or threw anything at the two men,

and Geovani continued driving into the trailer park.

       Once inside the trailer park, Geovani and his companions encountered Albarran

driving a Mustang, with Mendiola in the car. Based on his tattoos and white sleeveless t-

shirt, Ulises recognized one of the men in the Mustang as one of the people who made

gang hand signs at La Chicanita Market. Albarran stopped the car and either he or

Mendiola shouted "what neighborhood [are you] from?" Geovani answered that they did

not have a neighborhood and asked what they wanted. Albarran responded that they

should leave and, either got out of his car with an aluminum baseball bat or stuck the bat


                                             3
out of his car window, and hit Geovani's car. Geovani was afraid and got out of his car

with a tool similar to a tire iron, and asked Albarran and Mendiola what they wanted and

why they hit his car. Ulises also got out of the car. Duarte threw a beer at the Mustang

after Albarran brought out the bat. Either Albarran or Mendiola shouted "Varrio Oasis"

and then Albarran drove out of the trailer park. At the same time, Albarran was talking

on a cell phone. As Albarran drove away, Geovani threw the tool he was holding but did

not hit the Mustang.

       Both cars exited the trailer park onto 70th Avenue. Albarran stopped between the

west edge of the trailer park and the main road leading into the trailer park. Geovani

stopped behind the Mustang to see what Albarran and Mendiola wanted, and why they hit

his car. The two men got out of the Mustang, and Geovani and his friends also got out of

the Honda. Ulises, Duarte, and Cruz had nothing in their hands at this point. Very

quickly thereafter, an SUV drove up and parked behind Geovani's car. Three or four

people from the SUV, including its driver, walked toward Geovani's car. The man who

had been driving the SUV had a gun in his hand, and was shooting toward the Honda as

he was walking toward it. Ulises threw himself to the ground for cover and Geovani and

Cruz dove into the Honda. Two rounds struck Duarte, who fell into the car after being

shot. He was bleeding from his forehead and was slumped down in the seat.

       Ulises ran into the trailer park and Geovani drove away toward the hospital with

Duarte and Cruz in the car. While Geovani drove, Cruz called police. At some point,




                                             4
Geovani had to stop the car because he had a flat tire. Police and an ambulance

responded to the location where the Honda stopped.

       Duarte received two through and through gunshot wounds, one to his head and one

to his forearm. He died a few days after the shooting from the gunshot wound to his

head. Cruz also suffered an injury to his elbow, resulting in a permanent scar.

       Mendiola testified during the prosecution's case-in-chief as part of a plea deal.

Mendiola lived in Lawson's Trailer Park at the time of the incident. He testified that on

the day of the incident, he was waiting for the bus in the parking lot of La Chicanita

Market when Albarran saw him and drove over to say hello. As they were talking, he

saw some guys in a Honda drive by on 70th Avenue while yelling at him and Albarran,

but he could not hear what they were yelling. Mendiola thought they were being

disrespectful to him and his gang. Albarran told Mendiola that the men were from a rival

gang, Varrio Thermal.

       At some point during the incident, Albarran made an "0" for "Varrio Oasis" with

his hands. He made the sign up in the air where it was visible to the men in the Honda.

       After the Honda drove into the trailer park, Albarran told Mendiola they were

going to go "check [to see] if the kids were going to leave" and Mendiola got into

Albarran's Mustang. Albarran and Mendiola drove toward Mendiola's trailer, but he did

not have his keys so they started to drive out of the trailer park. At that point, they

encountered the Honda. After the men in the Honda asked if they had a problem,




                                              5
Albarran shouted "Varrio Oasis." The men then got out of the Honda. Albarran hit their

car with a baseball bat and drove away.

       While Albarran was driving out of the trailer park, he told Mendiola he was going

to call Moncho (Ramon Ames), who was near. While on the phone with Ames, Albarran

said "Moncho, can you come over, because we have some problems, to help us fight

because they are more than we are." Albarran also told Ames that the men were the

people Ames had problems with previously. Albarran stopped the Mustang on 70th

Avenue to watch the Honda. When the men in the Honda stopped and got out, Mendiola

and Albarran got out of their car to fight them. At that moment, Ames pulled up and

stopped very quickly. Mendiola looked at the men in the Honda and then heard shots

fired. He turned around and saw Ames shooting at the men from the Honda. He also saw

another man in the passenger side of Ames's SUV. One of the men from the Honda ran

toward the hills and the other men got into the Honda. One of the men from the Honda

pleaded with Ames to stop shooting. However, Ames walked toward the Honda and

continued shooting as the men tried to get inside it and drive away. Ames's brother was a

member of Varrio Oasis Riffa (VOR) on the date of the incident.

       After the shooting, Albarran took Mendiola to his girlfriend's house. Mendiola

was brought into the sheriff's station a day or two later, and was allowed to leave after

speaking with detectives. Shortly thereafter, Ames and Albarran spoke with Mendiola on

the phone. Albarran wanted to know what the investigators asked Mendiola and how the




                                             6
police knew they were all involved. Albarran also told Mendiola not to tell the police

anything about the shooting.

      An investigation of the crime scene on 70th Avenue revealed that 15 bullets had

been fired from two different guns. Two beer cans also were found at the crime scene.

      A search warrant was executed at Ames's trailer. Officers found two barrels

outside his trailer with the name "Moncho" written on them. Officers also found

paperwork with Ames's name and a round metal tin with "VOR 76 Street" written on it in

a dresser drawer in one of the bedrooms. While officers secured the trailer, Ames's sister

approached them. She allowed an officer to look at her cell phone, which listed a number

under the name "Moncho." A search warrant for the cell phone records for the date and

time of the shooting revealed a telephone number officers believed belonged to Albarran.

      Albarran was arrested at his girlfriend's house in January 2008. As officers placed

Albarran under arrest, he said "I knew this was going to come back to haunt me."

Officers dialed the number they believed belonged to Albarran and the cell phone in his

pocket rang. When officers examined the cell phone, it had only a contact and number

for Moncho and for Ana.

      Ana Mora was Albarran's girlfriend prior to, and at the time of, the shooting.

Albarran lived with her a few months before the shooting and she gave him a phone. At

some point, he moved out and took the phone with him. He did not live with her in

September 2007. Mora spoke with Albarran by phone shortly after Labor Day, in 2007.

He called her at night and asked if she wanted to go with him to Mexicali. Mora declined


                                            7
his offer. She saw Albarran again right before Thanksgiving in 2007, and he lived with

her until he was arrested in January 2008.

        Albarran was interviewed by police after he was arrested. He told officers that on

the day of the shooting he drove his Mustang to La Chicanita Market and bought beer.

When he walked out of the market, he saw Mendiola and then saw a Honda drive by with

four men inside yelling and throwing "Thermal" gang signs at them. Albarran told

Mendiola and another person to get in his car because he thought they were going to get

beat up by the men in the Honda.

        Albarran drove to Mendiola's trailer, and the men in the Honda started to follow

him while screaming and throwing things at his car. At some point in the trailer park, the

cars got very close to each other and stopped. Albarran was angry so he tried to grab his

bat, but he could not find it. The men in the Honda were still throwing things at his car,

and when they stopped all four men got out. Albarran also got out but Mendiola stayed

in the car. Albarran realized he was outnumbered, so he got back in his car and drove

off.

        Albarran called Ames for back up and said "I need a favor. These fools are

jumping me over here. Can you help? Come and help me?" Ames showed up

immediately. As soon as Ames's SUV pulled up, the men in the Honda started to back up

and Albarran threw a beer at them. Ames got out of his SUV and started shooting.

Albarran denied telling Ames to bring or use a gun and that he only expected to engage in

a fair fight.


                                             8
       Albarran admitted that he and Ames fled to Mexico after the shooting and that he

stayed there for about two months.

       A gang expert testified that VOR was an active criminal street gang on

September 3, 2007. VOR claims as its territory the area that includes Lawson's Mobile

Home Park. VOR's primary activities include auto theft, burglary, possession of

concealed weapons, possession of loaded firearms, and assault with a deadly weapon. At

the time of the altercation, Albarran was a member of VOR.

       The expert opined that a gang member would confront or challenge anyone in his

territory he perceived as being disrespectful to his gang. Disrespect could be shown by

someone drawing attention to himself in front of the gang. If they are outnumbered in a

confrontation, gang members will typically call for backup to come and bring weapons.

A gang member will normally call someone that he can trust and who likely carries a

weapon for back up. Shouting "Varrio Oasis" is an indicator that the people in question

are engaged in gang motivated activity.

       An associate of a gang can earn membership in the gang by "putting in work,"

which consists of committing crimes for the benefit of, or at the direction of, the gang.

An associate can put in work for the gang by responding to a gang member's request for

backup during a confrontation, and carrying weapons and being willing to use them. An

associate can also be "crimed" into a gang by committing murder. The expert opined that

Ramon Ames was an associate of the gang at the time of the shooting. He further opined

that if an associate responds to a request for backup by going to the scene with a gun and


                                             9
shooting and killing someone opposing the gang, his respect level would be considerably

elevated within the gang and it is very likely that he would be accepted into the gang

based on his commission of that crime alone.

       Based on a hypothetical mirroring the facts of this case, the expert opined that the

crimes were committed for the benefit of the VOR street gang.

                                         Defense

       Testifying on behalf of the defense, another gang expert opined that Ames was not

a member of the VOR at the time of the incident. He testified that it is uncommon for a

nongang member to be asked to commit a homicide to be admitted into the gang. He

testified that if a gang member "hit somebody up" in his turf, he would be ready for the

consequences and would not likely run away from the confrontation. He opined that it is

unlikely a gang member would call a nongang member to help him out if he is protecting

his gang's turf. He further testified that gang members are expected to assist each other

during fights, frequently bring weapons, including guns, to back up other gang members

during a gang fight, and frequently use guns to back each other up.

       Based on a hypothetical with facts similar to those given by Mendiola and by

Albarran during his police interview, the expert opined that the shooting was not gang

related.




                                            10
                                      DISCUSSION

                                             I

           THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE

       In a supplemental brief, Albarran maintains that, under Chiu, supra, 59 Cal.4th

155, his first degree murder conviction must be reduced to second degree. In Chiu our

Supreme Court held, as a matter of law, that an aider and abettor cannot be held culpable

for first degree murder based on the natural and probable consequences doctrine. Here,

the prosecution proceeded on two theories of guilt. First, the prosecutor argued that

Albarran was guilty of murder because he directly aided and abetted Ames in the

shooting. Second, the prosecutor asserted that Albarran was guilty of murder on the

natural and probable consequences doctrine by aiding and abetting the target offenses of

assault, battery, or assault with a deadly weapon.

       " ' "A person who knowingly aids and abets criminal conduct is guilty of not only

the intended crime [target offense] but also of any other crime the perpetrator actually

commits [nontarget offense] that is a natural and probable consequence of the intended

crime." ' [Citations.] 'Thus, for example, if a person aids and abets only an intended

assault, but a murder results, that person may be guilty of that murder, even if

unintended, if it is a natural and probable consequence of the intended assault.' " (Chiu,

supra, 59 Cal.4th at p. 161.)

       "In the context of murder, the natural and probable consequences doctrine serves

the legitimate public policy concern of deterring aiders and abettors from aiding or


                                             11
encouraging the commission of offenses that would naturally, probably, and foreseeably

result in an unlawful killing. A primary rationale for punishing such aiders and

abettors—to deter them from aiding or encouraging the commission of offenses—is

served by holding them culpable for the perpetrator's commission of the nontarget

offense of second degree murder." (Chiu, supra, 59 Cal.4th at p. 165.) "[T]his same

public policy concern loses its force in the context of a defendant's liability as an aider

and abettor of a first degree premeditated murder" because the required mental state of

willfulness, premeditation, and deliberation is uniquely subjective and personal. (Id. at

p. 166.) "Accordingly, we hold that punishment for second degree murder is

commensurate with a defendant's culpability for aiding and abetting a target crime that

would naturally, probably, and foreseeably result in a murder under the natural and

probable consequences doctrine. We further hold that where the direct perpetrator is

guilty of first degree premeditated murder, the legitimate public policy considerations of

deterrence and culpability would not be served by allowing a defendant to be convicted

of that greater offense under the natural and probable consequences doctrine." (Ibid.)

       "Aiders and abettors may still be convicted of first degree premeditated murder

based on direct aiding and abetting principles. [Citation.] Under those principles, the

prosecution must show that the defendant aided or encouraged the commission of the

murder with knowledge of the unlawful purpose of the perpetrator and with the intent or

purpose of committing, encouraging, or facilitating its commission." (Chiu, supra, 59

Cal.4th at pp. 166-167.)


                                              12
       "When a trial court instructs a jury on two theories of guilt, one of which was

legally correct and one legally incorrect, reversal is required unless there is a basis in the

record to find that the verdict was based on a valid ground. [Citations.] Defendant's first

degree murder conviction must be reversed unless we conclude beyond a reasonable

doubt that the jury based its verdict on the legally valid theory . . . ." (Chiu, supra, 59

Cal.4th at p. 167.)

       The People contend Chiu is distinguishable because the jury instructions given in

the instant matter were different from those given in Chiu. Specifically, the People

emphasize that the court here instructed the jury that "[t]o prove that the defendant is

guilty of this crime, the People must prove that: (1) The defendant committed an act that

caused the death of another person; (2) When the defendant acted, he had a state of mind

called malice aforethought; and (3) He killed without lawful justification." (CALCRIM

No. 520.) The court further instructed the jury: "If you decide that the defendant has

committed murder, you must decide whether it is murder of the first or second degree.

[¶] The defendant is guilty of first degree murder if the People have proved that he acted

willfully, deliberately, and with premeditation." (See CALCRIM No. 521.) In contrast,

the People note that the instructions in Chiu referred to the "perpetrator," (see Chiu,

supra, 59 Cal.4th at pp. 160-161) which could mean either the defendant or his

accomplice. Here, the instructions specifically referred to the defendant.

       Although we acknowledge the difference in instructions between the instant matter

and Chiu, on the record before us, this variation is not sufficient to distinguish Chiu,


                                              13
supra, 59 Cal.4th 155. Here, there was evidence at trial that Albarran called Ames

because he was outnumbered, did not ask Ames to bring or use a gun, and believed that

Ames would help him engage in a fair fight. Based on this evidence, we are not

persuaded that the jury did not find Albarran guilty under the natural and probable

consequences doctrine. Because we cannot conclude the jury did not convict defendant

using the natural and probable consequences theory, we must reverse Albarran's first

degree murder conviction.

                                             II

                                   CALCRIM NO. 400

       Albarran maintains the trial court erred when it gave a version of CALCRIM No.

400 that included language that an aider and abettor is "equally guilty" of the crime

committed by the perpetrator. We agree.

                                     A. Background

       The court instructed the jury with the following version of CALCRIM No. 400:

          "A person may be guilty of a crime in two ways: One, he may have
          directly committed the crime. I will call that person the perpetrator.
          Two, he or she may have aided and abetted a perpetrator, who
          directly committed the crime. A person is equally guilty of a 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 of one crime, a person may also be found guilty
          of other crimes that occurred during the commission of the first
          crime."

       The court also provided the jury with CALCRIM No. 401 as follows:


                                            14
          "To prove that the defendant is guilty of a crime based on the theory
          of aiding and abetting that crime, the People must prove that the
          perpetrator committed the crime, the defendant knew that the
          perpetrator intended to commit the crime before or during the
          commission of the crime, the defendant intended to aid and abet the
          perpetrator in committing the crime, and the defendant's words or
          conduct did aid and abet the perpetrator's commission of the crime."

       During deliberations, the jury submitted the following question to the court:

"Under the law, are the aider and abettor's actions/intentions and the shooter's

actions/intentions considered the same?"

       The parties and the court conferred regarding the jury's question. Albarran's

counsel's maintained that the court should simply refer the jury "back to all the

instructions." Counsel was concerned that reading the aiding and abetting instructions

would not give the jury a "full and complete" answer because it was unclear whether the

jury was referring to intent regarding aiding and abetting, the specific crimes, lesser

included offenses, or self-defense.

       The prosecutor and the court initially thought that the best course of action was to

reread all three aiding and abetting instructions since the jury specifically asked about

aiding and abetting under the law. However, after listening to argument, the court

decided that, in addition to rereading the aiding and abetting instructions, it would

include comments that every crime and defense lists the intent required and the jury

should refer back to each individual crime or defense.

       After rereading CALCRIM Nos. 400, 401 and 403 [natural and probable

consequences doctrine] to the jury, the court made the following comments:


                                             15
          "I do not mean to draw any special attention to these three
          instructions. I read these instructions because your question
          specifically referred to the aiding and abetting issue. That is the law
          on aiding and abetting. [¶] As far as the required intent elements of
          the other crimes and/or of the defenses, there are instructions in the
          packet that deal with each one of the potential crimes and potential
          defenses. And those instructions will have the required intent
          element listed in those. [¶] Remember, you are the judge of the
          facts based on the evidence that was presented to you in this
          courtroom by applying the law to that evidence as I have given you
          the law."

                                   B. Law and Analysis

       As a threshold matter, the People argue that Albarran forfeited his objection to

CALCRIM No. 400 by failing to object to it or request further clarification at trial.

Albarran concedes that his trial counsel failed to object to the "equally guilty" language

in CALCRIM No. 400 at trial. We agree with Albarran that the issue is properly before

us under section 1259, which provides that "[t]he appellate court may . . . review any

instruction given . . . even though no objection was made thereto in the lower court, if the

substantial rights of the defendant were affected thereby." The cases equate "substantial

rights" with reversible error—whether the error resulted in a miscarriage of justice.

(People v. Christopher (2006) 137 Cal.App.4th 418, 426-427; see Cal. Const., art. VI,

§ 13.) As we explain, the "equally guilty" language of CALCRIM No. 400 affected

Albarran's substantial rights by preventing the jury from giving the necessary

consideration to Albarran's mental state in determining the extent of his liability as an

aider and abettor. We therefore find it unnecessary to consider whether trial counsel's




                                             16
failure to object denied Albarran effective assistance of counsel. (See People v. Smithey

(1999) 20 Cal.4th 936, 976, fn. 7.)

       Generally, an aider and abettor and a direct perpetrator are "equally guilty" of the

same crime. (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118.) But like all general

rules, this general rule does not always apply. In certain circumstances, an aider may be

guilty of a greater or lesser crime than the perpetrator. (People v. McCoy (2001) 25

Cal.4th 1111, 1117-1122 [aider and abettor may be guilty of first degree murder even if

perpetrator is guilty of manslaughter based on unreasonable self-defense]; People v.

Woods (1992) 8 Cal.App.4th 1570, 1577-1578 [aider and abettor may be guilty of lesser

crime than perpetrator when crime ultimately committed was not a reasonably

foreseeable consequence of act aided and abetted].) Further, courts have criticized the

former version of CALCRIM No. 4002 as misleading while holding it was nonetheless

generally an accurate statement of the law. (See People v. Samaniego (2009) 172

Cal.App.4th 1148, 1165 (Samaniego) [finding the "equally guilty" language in

CALCRIM No. 400 misleading in "exceptional circumstances" of the case]; People v.

Nero (2010) 181 Cal.App.4th 504, 518 (Nero) [finding the "equally guilty" language in

CALJIC No. 3.00 misleading "even in unexceptional circumstances"].)

       In Samaniego, three defendants were each convicted of two counts of first degree

murder, but no evidence showed who was the actual perpetrator for either murder.


2     In 2010, CALCRIM No. 400 was amended to remove the word "equally" before
the word "guilty" from the fifth sentence of the instruction. (See People v. Canizalez
(2011) 197 Cal.App.4th 832, 847, fn. 14.)

                                             17
(Samaniego, supra, 172 Cal.App.4th at p. 1162.) On appeal, the defendants contended

CALCRIM No. 400 erroneously instructed the jury that an aider and abettor was equally

guilty as a direct perpetrator. (Samaniego, supra, at p. 1163.) As a result, CALCRIM

No. 400 relieved the prosecution of its burden to prove the mental state of an aider and

abettor. (Samaniego, supra, at p. 1165.) The jury was free to define "aider and abettor"

as it saw fit, and once it found that the perpetrator(s) had the mens rea needed, it could

convict all of the defendants without necessarily finding that each had the requisite

mental state. (Id. at p. 1164.) The prosecutor's theory for one of the murders was that the

defendants had intended to kill a man named Green, but when they could not find him,

they killed the victim. (Id. at p. 1162.) Thus, the jury could have found that one or all of

the defendants had a different mens rea from the perpetrator (whoever it may have been).

The court nevertheless found harmless error, because the jury also had found the

defendants guilty of multiple murder special circumstances, which required an

independent assessment of each defendant's intent, so the jury necessarily found the

defendants each had the appropriate mentes reae for both murders. (Id. at pp. 1164-

1165.) As noted, the court held that CALCRIM No. 400 was a correct statement of law,

but misleading in the case's "exceptional circumstances." (Samaniego, supra, at p. 1165.)

       In Nero, Nero and his sister Brown were both convicted of second degree murder,

Nero as the perpetrator and Brown as an aider and abettor. (Nero, supra, 181

Cal.App.4th at pp. 507-508.) The jury instructions included the "equally guilty" language

then found in CALCRIM No. 400. (Nero, supra, at p. 510.) The case was reversed


                                             18
because of jury misinstruction, but not because the jury instructions contained the phrase

"equally guilty." Though the jury instructions properly suggested that Brown's mens rea

was not tied to Nero's, the jury asked if it could convict Brown of a lesser offense than

Nero. (Id. at p. 518.) Instead of giving the proper answer, which is "yes," the trial court

merely reread the instructions to the jury, repeating the "equally guilty" language in

CALCRIM No. 400. (Nero, supra, at p. 518.) The jury next asked if an aider and abettor

could " 'bear less responsibility,' " or be convicted of manslaughter if the perpetrator was

guilty of second degree murder, and the court merely said the aider and abettor could be

found not guilty, though the evidence could have supported manslaughter. (Id. at p. 519.)

The jury was obviously considering imposing a lesser offense on Brown, and there was

"a reasonable possibility that the trial court's response to their questions improperly

foreclosed [that possibility]." (Id. at p. 520.) The trial court also instructed the jury that

the aider and abettor " 'can bear no greater responsibility as far as degree,' " which is

expressly contrary to McCoy, supra, 25 Cal.4th 1111. (Nero, supra, at p. 520.) It was

the trial court's erroneous responses to the jury's questions that caused the judgment to be

reversed, not the jury instructions themselves. (Ibid.)

       The court in Nero stated that even in unexceptional circumstances CALCRIM No.

400 could be misleading, and the jury's questions in that case about how it could convict

an aider and abettor suggested the instructions were "confusing and should be modified."

(Nero, supra, 181 Cal.App.4th at p. 518.) As noted, CALCRIM No. 400 has since been

modified to remove the word "equally" from "equally guilty." A potentially misleading


                                              19
instruction, however, does not necessarily pose a substantial risk of actually misleading

the jury. (People v. Hughes (2002) 27 Cal.4th 287, 341.) What is important is the

understanding the jury receives from the jury instructions as a whole. (Id. at p. 356.)

       Albarran contends the instant matter is similar to Nero, supra, 181 Cal.App.4th

504. We agree. Like Brown in Nero, Albarran was charged with murder solely on the

theory of aiding and abetting liability. There is evidence presented at trial that Albarran

called Ames because he was outnumbered and wanted a "fair fight." Further, evidence

was introduced that Albarran did not tell Ames to bring a gun and did not know that

Ames would bring a gun. The People diminish this evidence by focusing on Albarran as

the instigator of the altercation as well as his gang membership. However, this evidence

does not establish that Albarran knew Ames would bring a gun or that Ames would shoot

at the men in the Honda upon arrival at the scene.

       In addition, the jury's question here showed that it was considering the difference,

if any, of the mens rea of Albarran and Ames (the actual shooter). In response to that

question, the court reread the jury instructions, including the "equally guilty" language of

the former CALCRIM No. 400. Under these circumstances, where the issue of

Albarran's mens rea is highly contested as an aider and abettor, we conclude that the

former CALCRIM No. 400 was confusing to the jury. We find no merit in the People's

attempt to distinguish Nero, supra, 181 Cal.App.4th 504 from the instant matter on the

basis that, unlike in Nero where multiple defendants were tried together, here, Ames and

Albarran were not tried together. Although we acknowledge this difference, it is


                                             20
insignificant in the context of the record before us. Regardless of whether Ames and

Albarran were tried together, Albarran's mens rea was a highly contested issue in

Albarran's trial. The fact that Albarran was not tried with Ames does not diminish this

fact nor does it limit the confusion caused by the "equally guilty" language on the record

before us.

       Next, we must turn to the question of whether the error in instructing with the

"equally guilty" language of the former version of CALCRIM No. 400 was prejudicial.

We do so in the cumulative error section post.

                                            III

                  THE ADMISSION OF OTHER CRIMES EVIDENCE

       Albarran maintains the trial court abused its discretion by admitting certain

evidence regarding Albarran's other crimes. Specifically, he argues that the admission of

evidence of his prior concealed weapons offenses was more prejudicial than probative

resulting in a denial of due process and a fair trial. (See People v. Leon (2008) 161

Cal.App.4th 149, 168-169.) We agree that the court erred in admitting the evidence and

discuss the impact of this error in the cumulative error section below.

                                     A. Background

       The prosecutor filed a motion in limine to introduce 11 prior crimes, including

seven committed by Albarran, for purposes of establishing the crime pattern and primary

activity elements of the section 186.22, subdivision (b) enhancement charges. Albarran's

counsel opposed the prosecutor's motion, pointing out the prejudicial impact of the


                                            21
admission of a defendant's prior crimes. The prosecutor responded that, among others,

the prior crimes evidence was necessary to demonstrate Albarran's knowledge of the

primary activities of the VOR gang as well as the foreseeability that a confrontation that

began with gang challenges and the use of a bat would escalate into murder by firearm.

       During oral argument on the motion, the court noted that although there may be

legitimate theories under which the predicate acts might be admissible, it also needed to

consider the prejudicial effect under Evidence Code section 352 and the cumulative

nature of the multiple crimes evidence. The court ruled that Albarran's prior juvenile

adjudications, as well as one predicate crime involving an assault on a minor committed

by Albarran, would be excluded, but that five of the remaining six crimes listed by the

prosecutor in its motion would be allowed.

       The court observed it would allow the prosecutor to introduce the crime listed as

number six in the prosecutor's motion, which consisted of Albarran's and a fellow gang

member's possession of two concealed firearms, one of which was loaded, found in

Albarran's car by law enforcement. The prosecutor described that crime as a primary

activity of the VOR gang, and its commission was proof of Albarran's knowledge of that

particular activity. In ruling the crime could be presented to the jury, the court explained

that it was also relevant as to identity, motive, knowledge and intent, and that the court

would "do a limiting instruction" as to all of the admitted predicate crimes.

       During trial, over the objection of Albarran's counsel, the prosecutor elicited

testimony that on July 15, 2005, Albarran was arrested for possessing one loaded and one


                                             22
unloaded firearm in his car during a traffic stop. The possession of the firearms was a

violation of former sections 12025 and 12031. On that date, both Albarran and a

passenger in his car admitted to being members of the VOR gang and provided their

monikers to the patrol officer who conducted the stop. The evidence was offered during

the prosecutor's direct examination of Ortega, the gang expert, as to the predicate crimes

committed by the VOR gang. In addition to the evidence of Albarran's concealed firearm

offenses, the prosecutor offered evidence of four other crimes committed by VOR gang

members.

       The predicate crime evidence was further offered to the jury during the

presentation of Albarran's taped interview with detectives. Out of the jury's presence, the

court and counsel conferred about the transcript of Albarran's interview with the

detectives. Specifically, they discussed the following portion of the interview:

           "[Detective]: Does Pedro [the passenger in Albarran's car] normally
           carry a gun?

           "ALBARRAN: Naw, he don't carry no guns.

           "[Detective]: Is there sometimes a gun in your car?

           "ALBARRAN: Never.

           "[Detective]: So you're saying if he had a gun, he would have pulled
           it out?

           "ALBARRAN: I been cut up with guns before. I've been cut up like
           my - - like my - - like my second violation, I think my first violation
           on parole when I was in CYA [California Youth Authority]."




                                             23
        Albarran's counsel objected to the inclusion of any reference to being "cut up with

guns before." The prosecutor agreed that the statement "I've been cut up like my -- like

my - - like my second violation, I think my first violation on parole when I was in CYA"

should be redacted. However, he argued the first reference to being "cut up with guns

before" should remain because that statement showed Albarran admitted to the weapons

possession arrest that was already in front of the jury based on the expert's testimony.

When the prosecutor indicated he planned to call the arresting officer to establish the

circumstances surrounding that incident, Albarran's counsel objected. The prosecutor

explained that because Albarran had not been convicted of the weapons possession

charge, the prosecution had to prove the commission of the crime through the officer's

testimony for it to be used as a predicate act. The court acknowledged that might be

correct, and stated that it would consider the issue of the arresting officer's testimony over

the weekend.

        After the court determined that any portion of the interview after the word "never"

should be kept out as too prejudicial under Evidence Code section 352, Albarran's

counsel determined that it would make his client look like he lied when he told the officer

there is "never" a gun in his car. Albarran's counsel then argued that the only portion

that should be redacted from Albarran's interview was "I've been cut up like my -- like

my -- like my second violation, I think my first violation on parole when I was in CYA,"

but that "I been cut up with guns before" should remain. (6 RT 1381, 1388-1389; 3 CT

580.)


                                             24
       After the weekend recess, the court again raised the issue of the arresting officer's

anticipated testimony. Contrary to its previous ruling on the prosecution's motion in

limine, the court expressed great concern that the arresting officer's testimony would be

more prejudicial than probative:

          "I need to address another issue, and that is the issue that [Albarran's
          counsel] brought up about the highway patrol officer who is
          scheduled to take the stand and discuss stopping the defendant,
          finding the gun in his car. [¶] I am not going to allow that in. I
          thought about that all weekend. Did some research on the [Evidence
          Code section] 352 basis. That is far more prejudicial than probative.
          [¶] As far as it has already been used a predicate, I understand that.
          But there were several predicates and more than we need. "

       The prosecutor attempted to persuade the court that he should be permitted to offer

the arresting officer's testimony to establish Albarran's state of mind under Evidence

Code section 1101, subdivision (b). He further argued the evidence was "highly

probative" and not prejudicial. As such, he asserted Evidence Code section 352 did not

prohibit the admission of the evidence.

       In response, the court observed:

          "I understand your argument. And to be perfectly frank, initially,
          that was my thought process. [¶] But having gone over the evidence
          in this trial and having gone over some research and things like that,
          I'm changing my ruling. I'm sorry. But I think it's the fair thing to
          do. [¶] It has come in. The jury has been instructed to consider it
          only for the purpose that Deputy Ortega used it to determine this was
          a gang. Now you're asking it come in for another reason. You're
          asking that it come in to show the defendant had knowledge and that
          the defendant had other things. That's not the purpose of a predicate
          act. This was only ever admitted to be a predicate act to show that
          the gang was a criminal street gang. [¶] You don't need -- I think we
          had -- what did we have -- four or five of those in. We don't need
          that many. Plus you have this one. So at this point, to let it in, it's

                                             25
           being let in, as you just argued, to show his state of mind, to show
           his knowledge that other people have guns and things like that.
           That's not the job of the predicate act. And that was the only reason
           it was allowed in was for the predicate act purpose. [¶] There are
           more than sufficient numbers of predicate acts already that you have
           that serve the purpose of a predicate act. And for you to want this to
           come in now, as you just discussed, you want it to come in now for
           other reasons. And on a 352 analysis, letting it in for those other
           reasons is far too prejudicial to let it in. And that's my ruling."

                                    B. Law and Analysis

       It is clear from the record that the trial court limited evidence of Albarran's prior

crimes as evidence of the VOR gang's predicate offenses. Accordingly, we evaluate

Albarran's objections to the admission of this evidence within the predicate acts gang

evidence context.

       The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et

seq.) criminalizes active participation in a criminal street gang and the commission of

other crimes for the benefit of, at the direction of, or in association with a criminal street

gang. (§ 186.22, subds. (a) & (b).) "A criminal street gang is any ongoing association

that has as one of its primary activities the commission of certain criminal offenses and

engages through its members in a 'pattern of criminal gang activity.' [Citations.] A

pattern of criminal gang activity is 'the commission of, attempted commission of,

conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of

two or more' specified criminal offenses within a certain time frame, 'on separate

occasions, or by two or more persons' (the 'predicate offenses')." (People v. Tran (2011)




                                              26
51 Cal.4th 1040, 1044 (Tran).) Section 186.22, subdivision (e), lists 33 specific offenses

that qualify as predicate offenses.

       It was alleged all of the crimes charged against Albarran were committed for the

benefit a criminal street gang under section 186.22, subdivision (b) [street gang

enhancement]. Therefore, evidence of Albarran's gang affiliation and activity was

directly relevant to the gang related charges and enhancements. (People v. Williams

(1997) 16 Cal.4th 153, 193.) The prosecutor was required to establish that (1) one of the

gang's primary activities was commission of one or more of the 33 crimes listed in

section 186.22, subdivision (e) (often referred to as predicate offenses), and (2) there was

the requisite "pattern" of criminal conduct because two or more predicate offenses were

committed on separate occasions by two or more persons. These requirements are often

satisfied by the testimony of a police gang expert who can express an opinion on the

primary activities of the gang in question. (People v. Sengpadychith (2001) 26 Cal.4th

316, 322.)

       In Tran, supra, 51 Cal.4th 1040, the Supreme Court ruled that evidence of a

defendant's own prior criminal conduct may be admitted to prove a predicate offense

under the gang enhancement statutes (§ 186.20 et seq.), subject to an appropriate

balancing of the probative value of the evidence versus its prejudicial effect under

Evidence Code section 352. (Tran, supra, at pp. 1046-1050.) The Court rejected the

argument that use of a defendant's prior offense to show a predicate offense is necessarily

prohibited in all cases by Evidence Code section 352. (Tran, supra, at p. 1046.) The


                                             27
Supreme Court reasoned, "That evidence of a defendant's separate offense may be

admissible to prove a predicate offense does not mean trial courts must in all cases admit

such evidence when offered by the prosecution. Considerations such as those described

in People v. Ewoldt [(1994)] 7 Cal.4th [380] at pages 404-405 [(Ewoldt)], will still

inform the trial court's discretion and in an individual case may require exclusion of the

evidence." (Tran, supra, at p. 1049.)

       As our high court notes, a trial court must engage in an Evidence Code section 352

analysis to determine whether to admit evidence of a defendant's prior offense as a

predicate offense. (Tran, supra, 51 Cal.4th at p. 1048.) Here, we are faced with a unique

situation. The trial court considered Evidence Code section 352 in ruling on the

prosecution's motion in limine to allow evidence of Albarran's prior firearms possession

offense to be offered as a predicate act and as evidence of identity, motive, knowledge, or

intent of Albarran. Ultimately, the trial court allowed the prosecution's gang expert to

testify about Albarran's previous firearm possession offense.

       However, when the prosecution wanted to offer evidence of the arresting officer,

the court reconsidered its previous ruling, reflected on the evidence at trial and conducted

additional research regarding Evidence Code section 352, leading the court to change its

ruling. It found the arresting officer's proposed testimony about Albarran's previous

offenses to be "far more prejudicial than probative" and "far too prejudicial to let it in."

We cannot reconcile the court's ruling on this evidence in response to the prosecution's

motion in limine with its ruling on the testimony of the arresting officer. We fail to see


                                              28
any justification in the record before us that would allow the court to admit evidence of

Albarran's prior offense as a predicate act, but later determine that the same evidence is

too prejudicial to be admitted under Evidence Code section 352. This is precisely the

analysis required by Tran, supra, 51 Cal.4th 1040 and Ewoldt, supra, 7 Cal.4th 380. It is

clear that the trial court engaged in this analysis in the first instance, found no prejudice,

later realized its finding was incorrect, and changed its ruling.

       On the record before us, we agree with the trial court that evidence of Albarran's

prior offenses was highly prejudicial and should not have been admitted under Evidence

Code section 352. The primary defense in Albarran's case was that he was only calling

Ames to make up for a lack of numbers on his side and create a fair fight. Evidence was

offered that Albarran did not ask Ames to bring a gun and did not believe he would do so.

Further, there was no evidence that Ames was a member of VOR. Against this backdrop,

evidence that Albarran had once been arrested for possession of firearms is highly

prejudicial and does not establish that Albarran knew that Ames would respond to

Albarran's call by shooting at the other car.

       In addition, we are not persuaded by the People's argument that any prejudicial

impact of the evidence was limited by the court's limiting the admissibility of the

evidence as a predicate act. As the trial court noted, there were "more than sufficient

numbers of predicate acts" admitted into evidence in addition to Albarran's prior offense.

We interpret these comments by the trial court as an indication that evidence of

Albarran's prior offense was cumulative of evidence of other predicate acts. (See Evid.


                                                29
Code, § 352.) As such, we disagree with the People that evidence of Albarran's prior

offense was necessary to prove the required elements of gang enhancement. This is

especially true here where there is no real dispute that Albarran was a member of VOR,

VOR is an actual criminal street gang, and Albarran is not challenging the sufficiency of

the evidence supporting the jury's findings that all the crimes were committed for the

benefit of a criminal street gang.3

       Simply put, we conclude the trial court erred by admitting evidence of Albarran's

prior offense. We will discuss the prejudicial impact of this error in the cumulative error

section below.

                                            IV

                           PROSECUTORIAL MISCONDUCT

       Albarran maintains the trial court erred in denying his motion for mistrial and his

subsequent motion for a new trial based on claims of prosecutorial misconduct.

Specifically, Albarran insists the prosecutor committed misconduct by eliciting

inadmissible evidence from a witness, misrepresenting the time estimate for trial, and


3      We also are concerned whether Albarran's arrest for possession of firearms was
admissible without proof that it was actually committed. (See Tran, supra, 51 Cal.4th at
p. 1046; People v. Loeun (1997) 17 Cal.4th 1, 9.) Here, the prosecutor offered no
evidence that Albarran committed the crime of possession of firearms, except for the
hearsay testimony of the gang expert. There was no evidence presented that Albarran
was convicted of this crime. In other words, the testimony of the arresting officer was
necessary to prove the actual commission of the crime at issue, but the trial court found
that such testimony was too prejudicial under Evidence Code section 352. However,
without it, the prosecutor could not establish the commission of the crime. For this
reason as well, we question the court's determination that the prior crimes evidence,
through the gang expert's testimony, was admissible.

                                            30
telling the court and Albarran's counsel that he was not going to use Albarran's statements

against him, which caused Albarran's counsel not to address those statements in his

opening statement and changing the tactical defense to be presented.

                                       A. Background

       Prior to trial, Albarran's counsel objected to any reference to Albarran's prior arrest

or probationary status at the time of the instant offenses. The trial court agreed and ruled

that Albarran's probationary status was to be excluded at trial.

       At trial, during Ana Mora's testimony on direct examination as a witness for the

prosecution, the following occurred:

          "[Prosecutor]: In -- prior to September 3rd, 2007, was Mr. Albarran
          living with you at your home?

          "[Mora]: At what time?

          "[Prosecutor]: What?

          "[Mora]: I didn't —

          "[Prosecutor]: Before September of 2007

          "[Mora]: Before.

          "[Prosecutor]: Do you recall him moving into your home? Or when
          was the last time he was in your home -- he lived in your home?

          "[Mora]: He lived with me before 4th of July, and the last one when
          you guys arrested -- when you guys arrested is when the last time he
          was living with me.

          "[Prosecutor]: So you remember the day that the sheriff's deputies
          came to your home and arrested Mr. Albarran?

          "[Mora]: Yes.

                                             31
"[Prosecutor]: That only happened once, correct?

"[Mora]: Yes.

"[Prosecutor]: And prior -- and since then, Mr. Albarran, of course,
has not lived with you?

"[Mora]: No.

"[Prosecutor]: Prior -- at that time, was he staying at your house, at
least?

"[Mora]: Yes.

"[Prosecutor]: Was Mr. Albarran staying at your house at the time
the sheriff's came?

"[Mora]: Yes.

"[Prosecutor]: Prior to that, had he been living with you at the
house?

"[Mora]: Yes.

"[Prosecutor]: When was that?

"[Mora]: He moved with me when he get out of -- from jail, from
juvenile, and he stay with me.

"[Prosecutor]: And when did he get out?

"[Mr. Rojo]: Your Honor, I object to the statement.

"[The Court]: Sustained. I'm going to have that statement stricken,
and ask you to please refer to dates as opposed to things. [¶] And
ask the jury not to pay -- give any attention to what was just said.
And I'm going to ask [the prosecutor] to -- I'm going to strike the
question and the answer, and ask [the prosecutor] to re-ask the
question."



                                  32
       Albarran's counsel moved for a mistrial because the prosecution had not

admonished Mora to refrain from referencing Albarran's time in custody despite the

court's previous ruling excluding such evidence. Albarran's counsel further requested to

voir dire Mora to determine whether she had been told to reference juvenile hall. The

prosecutor responded that he did not attempt to elicit the information, but that he was

simply trying to get her to identify the time based on holidays or times of the year, and

she volunteered the fact that Albarran had been in custody. He further said, "it was not

something that I asked her to do or intended for her to do" and noted that she was nervous

and does not focus well on relating the time frame, so it was likely an event that she was

familiar with and used that as a reference point.

       In response to Albarran's counsel's argument that Mora's testimony was

unnecessary because he agreed to waive a hearsay objection to information appearing on

Mora's cell phone bill, the prosecutor explained that the purpose of her testimony went

beyond merely identifying a telephone number on her cell phone bill. According to the

prosecutor, because Mora's testimony involved more than simply the phone bill, "the time

frame was something that was just so peripheral, you know, it didn't even occur to me to

discuss it with her because I was just establishing the time frame as sometime before

September 3rd, 2007."

       Albarran's counsel questioned Mora regarding what she was told by the

prosecutor. She testified that she was interviewed by the prosecutor once during Ames's

trial and once just before her testimony at issue here, and that she said Albarran moved in


                                             33
with her after he got out of "jail or juvy" both times. She also testified that she had

neither been told to say anything about juvenile hall or jail nor to refrain from mentioning

it either time she met with the prosecutor.

       Albarran's counsel argued that the prosecutor purposely elicited the answer from

Mora, which was misconduct, and the basis for a mistrial. The prosecutor responded that

he only asked her a general question and that she volunteered the juvenile hall/jail

information. When the court asked the prosecutor if Mora had told him the information

twice that day and once during Ames's trial, the prosecutor said his recollection was that

she told him once that day before her testimony and once prior to Ames's trial, but that

she did not testify that way on the stand in Ames's trial. The court took the matter under

submission.

       After reviewing the transcript of Mora's testimony in Ames's trial,4 the court

determined that the prosecutor's recollection that Mora had not referenced juvenile hall or

jail in Ames's trial was incorrect. Further, the court found that the prosecutor improperly

elicited Mora to testify about Albarran getting out of juvenile hall prior to moving in with

her at Ames's trial as well as Albarran's trial:

           "So to indicate to this court now that she testified the same way and
           that you had no idea that's what she was going to say, not only did
           you have an idea, because she testified about juvenile, juvy and
           juvenile hall. You elicited it when she said that. You elicited it
           now. . . . You wanted it clear. And it was clear, so it's very
           disingenuous for you to sit here now and say she never said
           anything, you had no idea what to expect when you repeatedly


4      Ames's trial occurred prior to Albarran's trial.

                                              34
          followed up on that. [¶] And it appears to me that you deliberately
          disobeyed this court's orders.

       Ultimately, however, the court found that the misconduct did not require a mistrial

because (1) more damaging evidence that Albarran was a self-admitted gang member had

come out in trial, and (2) the only comment was that Albarran was in jail and, as far as

the jury knew, he could have been in jail for something as simple as a parking ticket.

Also, the court noted that it had admonished the jury to disregard the comment.

       Albarran's counsel renewed his motion for mistrial twice more. Each time, the

court reiterated its previous findings and ruling.

       At the close of evidence, Albarran moved for a new trial based, in part, on the

ground that the prosecutor's misconduct with respect to Mora's testimony was deliberate

and willful and the jury admonition did not cure the prejudice caused by the misconduct.

After reviewing the pleadings, and hearing argument by the parties, the court denied the

motion essentially on the same grounds it had previously denied the mistrial motions.

       In addressing the alleged misconduct with respect to Mora's testimony, the court

reiterated its finding that misconduct had been committed, but that as soon as the jail

comment was made, Albarran's counsel objected and the court admonished the jury.

Additionally, any harm that might have been occasioned by Mora's testimony paled in

comparison to the other evidence of Albarran's criminal behavior, such as his gang

affiliation, and evidence of having a concealed weapon that was introduced in the trial.

In addressing Albarran's claim of structural error based on other alleged purposeful acts

committed by the prosecutor, the court found that a prosecutor is entitled to reassess

                                             35
strategy as a case evolves, and there was no evidence that the prosecutor deliberately hurt

the defense in any way. Further, the court did not believe that anything that occurred was

sufficient to undermine the credibility of the trial process.

       The court stated:

          "The standard for granting a new trial is: Was there substantial
          likelihood that the outcome of the trial would have been different
          had the jury not heard that the defendant had been in jail? And I --
          for all the reasons I've said repeatedly -- I do not believe it would
          have been. Evidence was brought in that Mr. Albarran was a self-
          admitted gang member. Improper conduct that came in was that he
          had just gotten out of jail not what he had been in jail for, whether it
          was a conviction, a restraining order, anything else; whether it had to
          do with the prior crimes that the jury knew he committed.

          "Nonetheless, the jury was immediately admonished to disregard the
          comment, and I have no reason to believe they didn't follow that
          admonishment. Whether the comment was intentionally elicited or
          not, I do not believe it had any significance on the case, nor is there a
          substantial likelihood that the outcome would have been different
          had the jury not heard the statement.

          "While I did find that there was prosecutorial misconduct, it was not
          prejudicial misconduct that created the likelihood that the outcome
          would have been different; therefore, the appropriate sanction is not
          a mistrial."

       In addition to the grounds raised by Albarran in his multiple motions for a mistrial

and his motion for a new trial at the close of evidence, Albarran points out the

prosecutor's unprofessional conduct throughout the trial. For example, the court

admonished the prosecutor for laughing at a question that Albarran's counsel was asking

a witness. The prosecutor apologized, claiming his laughing was not intentional. The

court was not convinced and reminded the prosecutor: "[D]o you know how many times


                                              36
you've said that to the court just in one day? You know, we go to sidebar, I tell you not

to talk about something, you come back out and you talk about it, and then I have to say

something again and you apologize." The court further clarified:

          "On the record, when I said something to the jury about not paying
          attention to [the prosecutor's] laughter, I was sure that it had nothing
          to do with the matter at hand. I said that for the sake of the jury.
          That was not the case. Everybody in here knew what was
          happening, and it was directly related to [Albarran's counsel's]
          question about family values. I want the record to reflect that."

       The court also admonished the prosecutor for sighing during Albarran's

questioning of witnesses and following a ruling he did not agree with. In response, the

prosecutor claimed that he did not intend his sighing to be a communication. The court

noted that the prosecutor had sighed three times that day and the court had instructed him

to act professionally at side bar at least twice. The court further determined that the

sighing was intentional and it warned the prosecutor that any further like conduct would

not be tolerated.

                                   B. Law and Analysis

       We review a trial court's denial of a motion for mistrial or motion for a new trial

under an abuse of discretion standard. (See People v. Ault (2004) 33 Cal.4th 1250, 1260;

People v. Ayala (2000) 23 Cal.4th 225, 283.) Here, Albarran's motions for a mistrial and

new trial motion rely on his claim of prosecutorial misconduct.

       A prosecutor in a criminal case can commit misconduct under either federal or

state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

                                             37
denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to persuade either the trial court or the jury."

(People v. Morales (2001) 25 Cal.4th 34, 44.)

       "When a prosecutor intentionally asks questions, the answers of which he knows

are inadmissible, the prosecutor is guilty of bad faith attempts to improperly persuade the

court or jury." (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170; see People v.

Crew (2003) 31 Cal.4th 822, 839.) A prosecutor is also " 'under a duty to guard against

inadmissible statements from his witnesses and guilty of misconduct when he violates

that duty.' " (Parsons, supra, at p. 1170.) It is clear from the record that the prosecutor

intentionally asked questions of Mora that he knew would elicit answers that would

include inadmissible evidence. The trial court was very thorough in its consideration of

this issue and, as we discuss above, set forth details supporting its conclusion that the

prosecutor "deliberately disobeyed" the court's orders by questioning Mora about the time

frame Albarran moved in with her. The People offer no argument why the trial court's

conclusion was incorrect.

       In addition, we are troubled by the prosecutor's other unprofessional conduct and

demeanor throughout trial. Apparently, he laughed during Albarran's counsel's

examination of a witness. In addition, he sighed multiple times in the presence of the

jury, in response to questions of the witness and the trial court's rulings. Although we

appreciate the difficulty facing a prosecutor and the desire to obtain a conviction, we


                                             38
expect all prosecutors to comport to basic professionalism in the courtroom. "It is a

prosecutor's duty 'to see to it that those accused of crime are afforded a fair trial.'

[Citation.] 'The role of the prosecution far transcends the objective of high scores of

conviction; its function is rather to serve as a public instrument of inquiry and, pursuant

to the tenets of the decisions, to expose the facts.' " (People v. Andrews (1970) 14

Cal.App.3d 40, 48.)

       "Prosecutors, however, are held to an elevated standard of conduct. 'It is the duty

of every member of the bar to "maintain the respect due to the courts" and to "abstain

from all offensive personality." [Citation.] A prosecutor is held to a standard higher than

that imposed on other attorneys because of the unique function he or she performs in

representing the interests, and in exercising the sovereign power, of the state. [Citation.]

As the United States Supreme Court has explained, the prosecutor represents "a

sovereignty whose obligation to govern impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done." [Citation.] Prosecutors who engage in rude or

intemperate behavior, even in response to provocation by opposing counsel, greatly

demean the office they hold and the People in whose name they serve.' " (People v. Hill

(1998) 17 Cal.4th 800, 819-820.)

       Here, the prosecutor's conduct at trial fell well below the standard expected of a

prosecutor. This conduct coupled with the prosecutor intentionally eliciting inadmissible

evidence clearly amounts to misconduct. The People, however, argue the misconduct did


                                               39
not prejudice Albarran. Although we view the issue of prejudice as a close call under the

circumstances in the record before us, we evaluate any prejudice arising out of prosecutor

misconduct along with the other errors we conclude exist in the cumulative error section

below.

                                              V

                                   CUMULATIVE ERROR

         Albarran contends that even if no individual errors were prejudicial alone, the

cumulative effect of multiple errors require reversal. When a defendant claims

cumulative error the "test is whether defendant received due process and a fair trial."

(People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) "[W]e review each allegation

and assess the cumulative effect of any errors to see if it is reasonably probable the jury

would have reached a result more favorable to defendant in their absence." (Ibid.) The

cumulative effect of the errors discussed above (instructing the jury under former

CALCRIM No. 400 and the admission of other crimes evidence) as well as the

intentional prosecutorial misconduct require reversal.

         This is one of those rare cases where too much went wrong, undermining our

confidence that Albarran received a fair trial. It is undisputed that Albarran's guilt for any

of the charged offenses hinged on his aiding and abetting Ames's shooting at the Honda.

Although Albarran called Ames to help deal with the men in the Honda, there is no

evidence that Albarran fired any shots at the men on the night in question. The

prosecution needed to prove beyond a reasonable doubt that Albarran had the requisite


                                              40
mens rea to be found guilty of murder and attempted murder. As such, it was critical to

establish Albarran's intent in calling Ames and what Albarran believed Ames would do

once he arrived.

       Moreover, the jury appeared to have focused on this issue in asking the following

question during deliberations: "Under the law, are the aider and abettor's

actions/intentions and the shooter's actions/intentions considered the same?" Based on

this question, the jury seemed to be concerned about the difference between Ames's

actions and intentions as the shooter and Albarran's actions and intentions in calling

Ames for help. In response to this question, the trial court reread a few of the jury

instructions, including CALCRIM No. 400, which contained the "equally guilty"

language. As we discuss above, we conclude that this case is analogous to Nero, supra,

181 Cal.App.4th 504 and the "equally guilty" language was confusing to the jury.

Albarran's mens rea was highly contested as an aider and abettor and the inclusion of the

phrase "equally guilty" in CALCRIM No. 400 only muddled the issue. Although this

error by itself might not cause us to question the fairness of Albarran's trial, its prejudicial

effects are exacerbated by the other errors.

       For example, further garbling the mens rea issue, the trial court allowed the gang

expert to testify that Albarran had been arrested for possessing one loaded and one

unloaded firearm in his car during a traffic stop. When the court ruled on the

prosecution's motion in limine to allow this evidence, the court found that the evidence




                                               41
was admissible to establish the predicate crimes of the VOR gang and also that it was

relevant as to identity, motive, knowledge, and intent.

       However, when the prosecutor later in the trial attempted to offer the testimony of

the arresting officer, the trial court changed its mind, finding the evidence to be "far more

prejudicial than probative" and "far too prejudicial to let it in." Moreover, the court

indicated that the prior firearm possession charge was cumulative and unnecessary even

as a predicate crime of the VOR.

       Here, like the "equally guilty" language of CALCRIM No. 400, the admission of

the prior crimes evidence could have greatly influenced the jury's evaluation of

Albarran's mens rea. The fact that Albarran was arrested for possession of two firearms,

one of them loaded, could have led the jury to believe that he often carried guns and

would have called someone (Ames) who often had a gun as well and would arrive on the

night in question to shoot at the men in the Honda.

       Also, we are not persuaded that the court's instruction to the jury that it may only

consider Albarran's firearm possession charge for purposes of establishing that VOR was

a gang rendered the error not prejudicial. This is especially true in the context of the

intentional prosecutorial misconduct that occurred during trial.

       It cannot be disputed that the trial court found the prosecutor here intentionally

elicited testimony from Mora that Albarran moved in with her after being released from

juvenile hall. Albarran's counsel objected to this question and testimony and the trial

court admonished the jury to disregard the answer. Nevertheless, when discussing its


                                             42
ruling on Albarran's motion for a new trial, the court noted that "[t]he lay public . . .

thinks that having possession of a concealed weapon is a real bad crime." Further, the

court indicated its belief that the jury would not know that "in many cases you get

convicted of crimes and don't go to jail." Thus, the court reasoned that the jury merely

hearing that Albarran had been in jail, but not knowing why supported its conclusion that

there was no reasonable possibility of a different outcome had the evidence not been

admitted. Although the trial court was only analyzing the impact of the prosecutorial

misconduct based on the prosecutor eliciting inadmissible testimony, its comments

underscore the great potential for prejudice when the prosecutorial misconduct is

considered in connection with the prior crimes evidence.

       Here, the jury knew Albarran was a gang member. They knew he called Ames for

help. As an aider and abettor, the prosecutor had to prove Albarran had the requisite

mens rea to convict him of murder and attempted murder. The trial court allowed the

prosecutor to offer highly prejudicial evidence that Albarran was previously arrested for

possession of two firearms. Ames fired a gun at the Honda multiple times, killing the

victim and attempting to kill the other passengers in the car. The prosecutor intentionally

violated a court order by eliciting evidence that Albarran had been in jail previously. As

the court noted, the jury would believe that being in possession of a firearm or being a

gang member are "real[ly] bad crimes." The jury questioned whether Albarran's actions

and intentions should be considered the same as Ames's. In response, the trial court

reiterated the confusing "equally guilty" language in CALCRIM No. 400, at least


                                              43
potentially misleading the jury that Albarran shared Ames's mens rea under the aiding

and abetting law. On this shaky foundation, we add the prosecutor's tactless conduct

during trial. Considering the errors discussed above as well as other irregularities in the

record, we cannot be confident that it is reasonably probable the jury would not have

reached a result more favorable to Albarran in their absence. (See People v. Kronemyer,

supra, 189 Cal.App.3d at p. 349.)

                                      DISPOSITION

       The judgment is reversed.



                                                                             HUFFMAN, J.

WE CONCUR:



              McCONNELL, P. J.



                   McINTYRE, J.




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