Filed 9/7/16 P. v. Lopez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B267082

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA393896)
         v.

JOSE ARISTIDES LOPEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Leslie A. Swain, Judge. Affirmed.

         Janyce Keiko Imata Blair, 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, Chung L. Mar and Abtin
Amir, Deputy Attorneys General, for Plaintiff and Respondent.


                                __________________________________
       A jury convicted appellant Jose Aristides Lopez of first degree murder, and found
the crime was committed for the benefit of a criminal street gang. (Pen. Code, §§ 187,
subd. (a); 186.22, subd. (b).)1 On appeal, Lopez argues the trial court erred in giving
aiding and abetting instructions during jury deliberations, in response to a jury question.
We affirm.
                                          FACTS
Background
       A few years after immigrating to this country, Brian Dieguez was “jumped in” as a
member of the Harvard Criminal clique of the Mara Salvatrucha criminal street gang,
also known as MS-13. The Harvard Criminal clique of MS-13 and the Hollywood Locos
clique of MS-13 have a long, “special relationship.” Dieguez and other MS-13 gang
members “jumped in” Lopez when he became a member of the Hollywood Locos.
Dieguez knew Lopez as “Solo” or “Sapo.”
       MS-13 and the 18th Street gang have been involved in a long, bitter rivalry for
many years, and are “at war,” both locally and throughout Central and South America.
As explained by Dieguez at trial, if he or another MS-13 gang member saw an 18th Street
gang member on the street, he would—without saying anything—kill the 18th Street
gang member if he had a gun, or fight him if he was unarmed.
The Shooting
       During the afternoon of January 11, 2010, Dieguez and two other MS-13 gang
members, Temper2 and Listo, were drawing graffiti when a group from a rival gang drove
up and insulted them, and the two groups exchanged gunfire.3 After the confrontation,
Dieguez, Temper and Listo went to a friend’s house where they met up with Lopez and
other MS-13 gang members. Lopez told his fellow gang members that he knew the

1
       All undesignated section references are to the Penal Code.
2
       Dieguez identified Temper as the “shot caller” for the Harvard Criminals.
3
       According to Dieguez, Listo had the gun that was fired for the Harvard Criminals;
he did so at the direction of Temper and Dieguez.

                                             2
location of “a guy . . . who belonged to 18,” and suggested, “Let’s go hit him,” meaning
“Let’s go kill him.”4 Listo gave the gun he had to Lopez.
      Lopez, Dieguez, and Listo went to a bakery where the murder victim, William
Zambrana, worked as a security guard. When Lopez and the other MS-13 gang members
arrived at the bakery, Dieguez saw a friend’s car parked outside. Dieguez decided to go
inside to warn his friend that Dieguez and others were “going to hit somebody” right
then, and that his friend should “[h]urry up and leave.”5 As Dieguez walked into the
bakery to warn his friend, he saw Lopez walking toward the parking lot area where
Zambrana was standing.
      At about 8:00 p.m. on January 11, 2010, Zambrana was on security guard duty in a
uniform in the parking lot in front of the bakery.6 Just before the shooting, Zambrana
was facing away from the bakery when he got a feeling that he should turn around.
When he turned around, he saw Lopez walking towards him, about three feet away, and
pointing a revolver at him with his finger on the trigger. Zambrana knew he had only “a
short time” to try to stop Lopez from shooting him, and grabbed for the gun in Lopez’s
hand. As the two men struggled, Lopez tried to point the gun at Zambrana’s head.
Ultimately, Lopez fired a shot that struck Zambrana in the arm. Zambrana started “losing


4
       The previous day, Lopez had gotten into an argument with a person outside the
front of the bakery, and the murder victim, William Zambrana, had asked Lopez to calm
down because his yelling could be heard inside the bakery. During the encounter, Lopez
yelled that he did not “give a shit” about Zambrana, and did not care that Zambrana was a
security guard. Zambrana was in his mid 40s; he had been a member of the 18th Street
gang when he was young man. Although he had not been active in the gang for at least
20 years, he still had a visible 18th Street gang tattoo on his pinky.
5
      At trial, the prosecution showed a surveillance video of the inside of the bakery.
The video showed a person walking up and saying something to a person in a white hat.
Dieguez identified himself as the person who spoke to the person in the white hat.
6
       Zambrana died from his gunshot wounds after testifying at Lopez’s preliminary
hearing. His preliminary hearing testimony was read into the record at Lopez’s trial.
The facts describing the shooting largely come from Zambrana’s testimony at the
preliminary hearing.

                                            3
a lot of blood,” which caused him to lose strength and start to fall. Lopez then fired a
second shot that entered Zambrana’s neck. The second shot severed Zambrana’s spinal
cord, rendering him quadriplegic. As noted above, Zambrana died from complications of
this gunshot wound before Lopez’s trial.
       After the shooting, Lopez went the home of another MS-gang member, Feris
“Smiley” Calderon. Lopez stated that he had just shot a security guard from the 18th
Street gang at a bakery. Further, Lopez stated that he got the gun from Listo. Lopez said
he knew the victim was a member of the 18th Street gang because of a tattoo on his hand.
At an MS-13 gang meeting the next day, Calderon heard Lopez announce that he shot a
security guard from the 18th Street gang the day before. Lopez showed fellow members
of the gang a .38 revolver that he said he had used to do the shooting.7
The Criminal Case
       In February 2013, the People filed an information jointly charging Lopez and
Dieguez with murder. (§ 187, subd. (a).) Further, the information alleged as to Lopez
that he had personally discharged a firearm causing death (§ 12022.53, subd. (d)), that a
principal had discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)), and
that the murder had been committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)). In September 2014, Dieguez signed a “cooperation agreement” with the
District Attorney’s Office. Under the terms of the agreement, Dieguez agreed to plead
guilty to voluntary manslaughter with a 21 year sentence in exchange for his truthful
testimony at trial against Lopez and in three other cases in which he had not been
accused.
       In summer 2015, the charge and allegations against Lopez were tried to a jury, and
the prosecution presented evidence establishing the facts summarized above. Lopez did
not present any defense evidence; his counsel argued that Zambrana’s testimony could

7
        Calderon’s testimony from Lopez’s preliminary hearing was also read into the
record at Lopez’s trial. When members of the MS-13 gang heard that Calderon had
testified at the preliminary hearing, they carved a MS-13 tattoo out of the skin on his
hand while he was in custody. Before Lopez’s trial, Calderon was deported; he refused
to return to the United States to testify for fear of reprisal from the MS-13 gang.

                                             4
not be found credible because of the stress and excitement of the shooting, and that the
testimony of the prosecution’s gang member witnesses was not credible in that they were
looking out for themselves. Initially, the trial court instructed the jury on first degree
murder, second degree murder and voluntary manslaughter based on imperfect self-
defense. Further, the court instructed on the allegation that Lopez personally used and
discharged a firearm causing death. Verdict sheets were given to the jury accordingly.
During the first day of deliberations, the court gave supplemental instructions on aiding
and abetting, and allowed further argument on the issue of criminal liability as an aider
and abettor. The supplemental instructions are discussed below. Ultimately, the jury
returned a verdict finding Lopez guilty of willful, deliberate and premeditated murder,
with a finding that the murder had been committed for the benefit of a criminal street
gang. The jury found the personal use of a firearm allegation not true.
       The trial court sentenced Lopez to a term of 25 years to life on his first degree
murder conviction. The court ordered the jury’s gang benefit finding stayed.
                                       DISCUSSION
       Lopez contends the trial court erred in giving aiding and abetting instructions for
the first time in response to a jury question during deliberations. We disagree.
The Trial Circumstances
       The prosecutor argued to the jury that the evidence showed that Lopez was the
shooter, and that the jury’s duty was to decide “what type of homicide this is.” The
prosecutor conceded that “[a]n acquittal will obviously be if you believe he’s not the
shooter.” Defense counsel argued that Zambrana’s testimony should not be accepted as
proof beyond a reasonable doubt because of the stress of the shooting events, and that the
other two gang member witnesses who implicated Lopez, namely, Dieguez and Calderon,
were “dirt bags” and “scum bags” whose testimony also should not be accepted. The trial
court then instructed the jury on murder, including first and second degree murder, and
voluntary manslaughter based on imperfect self-defense. Further, the court instructed on
the allegation that Lopez personally used and discharged a firearm causing death.
The instructions did not cover the subject of criminal liability based on aiding and

                                              5
abetting. At 2:45 p.m., on July 31, 2015, a Friday, the court ordered the bailiff to take
charge of the jury, and continued the proceedings to Monday morning, August 3, 2015.
The jury began deliberations at 9:40 a.m. on Monday, August 3, 2015.
       At 2:10 p.m. that day, the jury submitted a note and the trial court informed the
lawyers that the court had received a note from the jury asking the following question:
“If we believe that ‘Solo’ [appellant] was there and not the trigger man―can we still find
him guilty?’” The court solicited responses from the lawyers as to “how [they thought]
the court should proceed.”
       After hearing a series of exchanges between defense counsel (advocating that
aiding and abetting instructions should not be given) and the prosecutor (advocating that
aiding and abetting instructions should be given), the trial court ruled as follows:
              “All right. I think under the circumstances it would be improper for
       the court to write back and say that the answer is ‘no.’ I just don’t feel as
       though that’s a correct statement of the law under the circumstances. The
       jury has invited the court to steer them on this matter and I believe that the
       correct way to do that would be to provide the jury instructions which the
       court would have given had this been requested or had the court considered
       it a sua sponte responsibility, which I don’t know if it is or it isn’t. [¶] But
       at this point I believe it’s appropriate to instruct on aiding and abetting.”
       The trial court told defense counsel that he could “have as much time as [he]
want[ed]” to prepare his argument and to argue the matter to the jury. The court granted
defense counsel’s request to end the trial day early to allow him time to prepare his
argument on aiding and abetting the next day.
       The following day, the trial court instructed the jury on aiding and abetting using
CALCRIM Nos. 400 and 401, and the prosecutor and defense counsel argued for and
against finding Lopez guilty under an aiding and abetting theory of liability. The
prosecutor pointed to evidence that implicated Lopez as an aider and abettor, including
encouraging MS-13 members to kill Zambrana, then accompanying and supporting them
during the commission of the crime. Further, the prosecution reminded the jurors that

                                              6
Dieguez, a former codefendant, had pled guilty to aiding and abetting Lopez in the
shooting. Defense counsel argued that the prosecution’s witnesses were unreliable, and
that there was no credible evidence that Lopez was present or participated in the
shooting.
The Governing Law
       Under California criminal law pleading practice, a defendant may be convicted as
an aider and abettor “‘without the accusatory pleading reciting the aiding and abetting
theory’” so long as defendant is charged in the pleading as a principal to the substantive
offense and thus receives notice of the charge against him. (People v. Garrison (1989)
47 Cal.3d 746, 776, fn. 12 (Garrison), quoting People v. Greenberg (1980) 111
Cal.App.3d 181, 188.) This said, a defendant has a due process right to notice of the
prosecution’s theory of a case, and not to be affirmatively misled or “ambushed” in
preparing and presenting his or her defense. (People v. Quiroz (2013) 215 Cal.App.4th
65, 70-71 (Quiroz).) Notice of a new theory of criminal liability raised for the first time
at trial is “constitutionally sufficient when the defendant is . . . alerted to the theory by the
evidence presented at the preliminary hearing . . . or by the People’s express mention of
that theory before or during trial sufficiently in advance of closing argument . . . .”
(Quiroz, supra, 215 Cal.App.4th at pp. 70-71, citing People v. Jenkins (2000) 22 Cal.4th
900, 1024; People v. Scott (1991) 229 Cal.App.3d 707, 717; People v. Crawford (1990)
224 Cal.App.3d 1, 8-9, and similar cases.)
       In Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, the Ninth Circuit applied “a
rule of automatic reversal” upon finding that a prosecutor’s “ambush” trial tactics
“effectively denied [the defendant] the assistance of counsel.” (Quiroz, supra, 215
Cal.App.4th at p. 71.) “By contrast, in cases where a new theory is introduced late in the
game for reasons other than prosecutorial gamesmanship, courts have employed a
harmless error test. That test looks to whether the late notice ‘unfairly prevented [defense
counsel] from arguing his or her defense to the jury or . . . substantially mislead [counsel]
in formulating and presenting arguments.’” (Quiroz, supra, 215 Cal.App.4th at p. 71,
quoting United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 458 (Gaskins), and also

                                               7
citing People v. Bishop (1996) 44 Cal.App.4th 220, 234 (Bishop).) “Gaskins and Bishop
applied this test to evaluate whether supplemental instructions responding to jury notes
prejudiced the defendant.” (Quiroz, at p. 71.) Inasmuch as Lopez’s case here presents
the same situation of supplemental jury instructions responding to a jury note, we too will
apply the Gaskins/Bishop test.
Analysis
       Lopez contends there was Gaskins/Bishop error in his case because he “was
denied the opportunity to prepare and develop a defense” based on the prosecutor’s
“strategic decision” to “reject the giving of aiding and abetting instructions” and to focus
“solely on the direct liability theory.” In this vein, he postulates that the prosecutor
planned to conceal his intent to prove an aiding and abetting theory of liability by arguing
only a theory of direct liability until the last possible moment. We find no error for
various reasons.
       The initial problem with Lopez’s Gaskins/Bishop error argument is that it imparts
to the prosecutor the prescience to have known that the jury would ask its question to the
trial court, thus giving the prosecutor an opening to pursue the “new” theory of aiding
and abetting liability. If there had been no such jury question, then no aiding and abetting
instructions would have been given. We cannot see how the prosecutor pursued a plan to
spring an aiding and abetting theory at the last minute. Further, if the prosecutor
employed the “strategy” that Lopez sees, the prosecutor would also have had to predict
correctly that the trial judge would decide to give the aiding and abetting instructions in
response to the jury’s question, rather than accede to the defense’s arguments not to give
such instructions. For these reasons, the only reasonable reading of the record must lead
to the conclusion that the prosecutor presented a direct liability theory to the jury because
he was convinced that Lopez was the shooter and that the jury would agree, not that he
was employing an ambush strategy to gain an advantage with a belatedly sprung new
theory of criminal liability.




                                              8
       Second, we find the record does not support Lopez’s contention that he did not
have an “opportunity to develop . . . evidence” in support of a defense against the aiding
and abetting theory. Plainly, the prosecution’s trial evidence was intended to establish
that Lopez was the shooter. But there was nothing in the prosecution’s evidence which
may be seen to have necessarily deterred Lopez from developing evidence showing that
he had no involvement in the shooting at all, whether as the actual shooter or as an aider
and abettor. Indeed, the substance of the argument that Lopez presented to the jury was
that there was no credible evidence to support a finding that he was involved at all. We
see no reason, based on the prosecution’s evidence, that Lopez could not have buttressed
his defense theory with further evidence. Plainly, Lopez had an opportunity to develop
evidence that would have worked against an aiding and abetting theory in the same
manner as it would against the direct shooter theory. The prosecution’s evidence,
specifically the testimony of Dieguez, showed that Lopez suggested the shooting, and
suggested the target. Lopez’s arguments do not explain how the motive and preparation
of Lopez’s trial counsel to develop evidence challenging Dieguez’s testimony would
have been different had an aiding and abetting theory been offered from the beginning of
trial. We have not been persuaded by Lopez’s arguments to conclude that the fact that
the jury asked whether Lopez could be liable for murder even in the event he was not the
actual triggerman, standing alone, shows that Lopez was “denied the opportunity to
develop evidence” challenging an aiding and abetting theory. This is particularly true in
light of Lopez’s defense that he was not involved in the shooting at all.
       Lopez argues his defense counsel reasonably chose not to “drill down in his cross-
examination” of Dieguez because of the lack of notice “that alternative theory of liability
was in issue.” Here, Lopez contends his defense counsel reasonably chose not to cross-
examine Dieguez about his testimony that Lopez “pinpointed the location of the enemy
18th Street member” and suggested they go kill him. The problem with Lopez’s
argument is that his defense strategy—throughout the trial, including both before and
after the supplemental aiding and abetting instructions and during both the pre and post
supplemental instructions arguments––was only to urge the jury to question the

                                             9
credibility of the gang witnesses against him. As we have said, the defense strategy––
from beginning to end––was consistently based on disproving any theory of liability,
which would encompass aiding and abetting liability. Thus, defense counsel would have
had the same incentive to cross-examine Dieguez’s irrespective of the supplemental
instructions, and there is no showing in the record to support the argument that the
supplemental instructions had a prejudicial effect on Lopez’s trial tactics or its
implementation.
       After reviewing the record in its entirety, including the events that occurred during
jury deliberations and thereafter, we are not persuaded that Lopez was denied assistance
of counsel, or that he was denied proper notice of, or a fair opportunity to respond to, his
potential liability under an aiding and abetting theory. Accordingly, we find the trial
court’s supplemental instructions on the new theory were proper.
                                      DISPOSITION
       The judgment is affirmed.


                                                         BIGELOW, P.J.
We concur:


                     FLIER, J.




                     RUBIN, J.




                                             10
