Filed 11/7/14 P. v. Amezcua CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064904
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MCR032571A)
                   v.

JUAN CARLOS AMEZCUA,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. James E.
Oakley, Judge.
         Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Juan Carlos Amezcua and codefendant Eucario Avalos Ruiz1 were
charged with murder (Pen. Code,2 § 187, subd. (a); count 1) and active participation in a
criminal street gang (§ 186.22, subd. (a); count 2). As to count 1, the information alleged
that Amezcua committed the offense for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)) and personally and intentionally discharged a firearm, which proximately
caused the victim’s death (§ 12022.53, subd. (d)). As to count 2, the information alleged
that Amezcua personally used a firearm (§ 12022.5, subd. (a)). The trial court impaneled
dual juries. Amezcua’s jury acquitted him of first degree murder, convicted him of
second degree murder and gang participation, and found true each of the above
mentioned special allegations.
         Amezcua makes several contentions on appeal. First, the trial court failed to
instruct the jury on involuntary manslaughter as a lesser included offense of murder.
Next, the court improperly gave CALCRIM No. 250 on the union of act and general
intent for counts 1 and 2 and CALCRIM No. 251 on the union of act and specific intent
and/or mental state for count 2. Finally, the court improperly allowed the prosecutor to
tell jurors in summation that they may draw a negative inference from an immunized
witness’s refusal to answer her questions.3


1        To avoid confusion, we identify individuals who share the same surname by their first
names.
2        Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
3        Amezcua offers two other contentions. First, he asserts that “should [the Supreme Court]
determine[] that [People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia)] was correctly decided,
the trial court erred in failing to instruct sua sponte that an unintentional killing committed
without malice during an assaultive felony constitutes voluntary manslaughter.” (Capitalization
omitted, italics added.) In Garcia, Division Seven of the Second Appellate District ruled that
“an unlawful killing during the commission of an inherently dangerous felony, even if
unintentional, is at least voluntary manslaughter.” (Garcia, supra, at p. 31.) In People v. Bryant
(2013) 56 Cal.4th 959, 970 (Bryant), which was decided shortly after Amezcua filed his opening
brief, the Supreme Court held:



                                                 2.
       We conclude: (1) the trial court was not obliged to instruct the jury on involuntary
manslaughter because there was no substantial evidence that the killing was committed
without malice aforethought; (2) the court’s issuance of CALCRIM No. 250 for counts 1
and 2 and CALCRIM No. 251 for count 2 did not prejudice Amezcua since the evidence
showed beyond a reasonable doubt that the erroneous instructions made no difference in
reaching the verdict obtained; and (3) the court did not abuse its discretion when it
allowed the prosecutor to argue that jurors may draw a negative inference from an
immunized witness’s refusal to provide relevant testimony. Therefore, we affirm the
judgment.
                                  STATEMENT OF FACTS
I.     The night of the shooting
       The victim, Victor Raqueno, died of a massive hemorrhage of the left common
carotid artery inflicted by a .22- to .40-caliber bullet. Numerous witnesses offered
accounts of the events leading to his death.




                “A defendant who has killed without malice in the commission of an
       inherently dangerous assaultive felony must have killed without either an intent to
       kill or a conscious disregard for life. Such a killing cannot be voluntary
       manslaughter because voluntary manslaughter requires either an intent to kill or a
       conscious disregard for life. To the extent that [Garcia] suggested otherwise, it is
       now disapproved.”
       In view of Bryant, Amezcua’s alternative argument that the court was obliged under
Garcia to instruct the jury on voluntary manslaughter as a lesser included offense of murder has
been rendered moot.
         Second, if our court concludes that the claimed instructional errors—i.e., the trial court’s
failure to instruct on involuntary manslaughter and failure to properly instruct on specific intent
and/or mental state—were either “invited, waived, or forfeited,” Amezcua asserts that “he
received ineffective assistance when counsel failed to ensure proper instructions.”
(Capitalization omitted.) Since we do not reach such a conclusion, we need not address this
argument.



                                                  3.
       a.      Odelia Garcia
       On July 18, 2008, at or around 8:30 p.m., Garcia arrived at the home of Isaac and
Roger Marz, located at 1224 Davis Street on the southwest corner of Davis Street and
Sherwood Way in Madera, California. Garcia was celebrating her birthday with
approximately 45 of her relatives and friends, including Raqueno. Guests were asked to
wear red and black, Garcia’s favorite colors, and prohibited from lingering in the front
yard. Individuals who “didn’t know the name ‘Odelia’” were turned away at the door.
At some point, Garcia learned that a male party guest was talking on a cell phone in the
front yard. She went outside and asked the guest to come inside. At that moment, a five-
foot-four-inch “baby-faced” “Mexican” man sporting a white T-shirt and a fade haircut4
approached them and “started saying stuff” to the guest.5 Garcia noticed that the man
was holding a gun and wearing a black glove.6 As she nudged the guest toward the
house, she told the armed man that she “didn’t want any problems” and asked him to
“just please leave” and “not to start anything.” The armed man, who had been standing
on Davis Street, walked around the house and onto Sherwood Way. Meanwhile, “a large
amount of people rushed outside of the house.” Isaac, Roger, and two other male guests
jumped over the fence parallel to Sherwood Way while Raqueno “came running from
Sherwood [Way] up towards where everything was happening.”




4       Garcia described a fade haircut as “where the males … take their hair really short on the
side next to their ears” and “have a little bit more hair on the top of their head than with the rest
of it.”
5      In an interview conducted on the night of the shooting, Garcia told Detective Sean
Bushey that she saw two unknown men arguing with two party guests and informed the men that
“it wasn’t a gang party.”
6     At trial, Garcia acknowledged that she originally reported to police that the armed man
wore white latex gloves.



                                                  4.
       Soon after, a car appeared on Sherwood Way. About five men exited the vehicle
and fought unarmed party guests.7 Two of the men attacked Raqueno. At one point,
Garcia saw the armed man point and wave his gun at Isaac and Roger. When Raqueno’s
assailants returned to the car, Raqueno shoved one of them into the vehicle, “slammed the
door,” and “sw[u]ng[] at the people who were inside” through an open window.8 As the
car was leaving, Garcia heard two gunshots.9
       Garcia was shown a six-pack photo lineup that did not include a picture of
Amezcua. She wrote an “X” and her initials next to the picture of Adam Diaz and
remarked that Adam’s face “‘looked like [the armed man’s] when he saw that I saw the
gun, the same dumbfounded look.’” Garcia did not identify Adam as the shooter. When
she was later shown a second photo lineup that included a picture of Amezcua, Garcia
was unable to identify him.
       b.      Samuel Sheridan
       Sheridan attended Garcia’s birthday party with two friends, but did not personally
know Garcia. At some point, he went to the front yard to make a phone call. A few
minutes later, two Hispanic men wearing white T-shirts approached Sheridan and shouted
gang slurs, including “puro sur.” The first man had a shaved head and stood between five
feet and five feet six inches tall. The second man was taller than the first man by at least
three inches. The two asked Sheridan, “[W]hat do you claim?” Sheridan responded, “I
claim myself.”

7       Garcia testified, “It wasn’t all 45 people fighting on top of five guys, it wasn’t like that.
It was a few of the guys from our party were trying to defend us. And, of course, they were
fighting with the guys who were there.”
8      Garcia told Bushey that the armed man was one of Raqueno’s assailants and the person
that Raqueno shoved into the car.
9      At trial, Garcia acknowledged that she originally reported to police that she “saw the
armed man in the front passenger seat lean back in his seat, aim the gun at [Raqueno,] and fire a
round at him as the vehicle rolled away.”



                                                  5.
       As Sheridan headed into the house, the two men walked onto Sherwood Way.
Once inside, he observed at least five guests go outside. Approximately 10 to 15 minutes
later, Sheridan heard gunfire. He went to the front yard, where “[a] bunch of people
[were] yelling that [Raqueno] got shot.”
       c.     Isaac Marz
       Isaac and his brother Roger hosted Garcia’s birthday party at their home on the
night of July 18, 2008, and the early morning of July 19, 2008. Isaac was in the back
yard at or around 12:30 a.m. when Garcia informed him that “there w[ere] people starting
stuff out in the front.” He went to the front yard, where four Hispanic males were
standing beyond the fence. At least one of the men asked, “‘Where are you from?’”
When Isaac and Roger jumped over the fence, one of the strangers drew and waved a
black gun. Isaac and Roger backed away and stated, “[W]e don’t want no problems.”
Isaac noticed that the armed man was wearing a black glove.
       Meanwhile, Raqueno “[came] around the other side of the fence” and fought one
of the strangers. During the commotion, Isaac heard someone yell, “[S]outh side VCG.”
At some point, Raqueno pushed one of the strangers into the passenger seat of a white
car. As the car was leaving, Isaac heard a gunshot. Afterward, Raqueno walked toward
Isaac, indicated that he had been shot, and collapsed.
       Isaac was shown a photo lineup that included a picture of Amezcua. He identified
Amezcua as the armed man, but “wasn’t 100 percent sure.”
       d.     Roger Marz
       At or around midnight, Roger went to the front yard because “there w[ere] some
people trying to get in.” He noticed a Hispanic man wearing black gloves, told the man
to leave, and returned to the house. When 15 to 20 guests subsequently rushed outside,
Roger followed. He jumped over the fence parallel to Sherwood Way when he saw his
brother Isaac on the other side “look[ing] like he was about to square up with another
guy.” Raqueno, meanwhile, was fighting someone else. Roger heard cries of “VCG”

                                             6.
and “Sur.” When the fighting subsided, four Hispanic men, including Raqueno’s
opponent, went to a white car parked on Sherwood Way with its doors ajar. One of the
men pulled out a gun and “point[ed] it at everybody, waving it back and forth.” At some
point, Raqueno shoved his opponent into the car and kicked the door. As the car was
leaving, Roger heard a gunshot.10 He watched Raqueno stumble onto the sidewalk and
collapse. Roger spotted a wound on Raqueno’s neck.
       e.     Amanda Moralez
       At or around midnight, Moralez and about six to seven other party guests went to
the front yard after her cousin told her that “there [were] guys yelling ‘[S]outh side.’”11
Outside, she saw four Hispanic men. One of the men, who was five feet nine inches in
height, pulled out a revolver and pointed it at Isaac and Roger, who had jumped over the
fence. As Isaac and Roger backed away, the armed man entered the back seat of a white
or gray car parked in the middle of Sherwood Way. Moralez observed two other men
standing next to the car. At some point, Raqueno, who was unarmed, “r[a]n outside from
the side of the house” and “started fighting” a taller, five-foot-nine-inch to five-foot-ten-
inch man with a fade haircut.12 When Raqueno’s opponent headed toward the car,
Raqueno followed him, continued to fight, and slammed and kicked the car door. Soon
after, Moralez heard a gunshot. She saw Raqueno stagger toward the house, grab his
throat, and acknowledge that he had been shot.


10     In an interview conducted on the night of the shooting, Roger told Officer Mark Trukki
that Raqueno pushed his opponent during their fight and the opponent “pulled out a gun and shot
once in [Raqueno’s] direction.”
11     Moralez testified that she herself heard cries of “[S]outh side” and “VCG.”
12      In an interview conducted on the night of the shooting, Moralez told Detective Robert
Hill that Raqueno fought a bald, five-foot-two-inch Hispanic male. She also mentioned,
however, that the man who brandished the gun was the same person who fought and shot
Raqueno. Moralez described the shooter as a five-foot-seven-inch male with a mustache, goatee,
and light complexion.



                                               7.
       Moralez was shown a six-pack photo lineup that did not include a picture of
Amezcua, but included pictures of Adam and Andrew Diaz. She wrote that Adam “looks
like the driver” and Andrew “looks like the shooter.”
       f.     Lisa Lopez
       Lopez, a party guest, went to the front yard and saw Raqueno fighting a Hispanic
male who was “not too tall,” of “medium build,” and wearing a white T-shirt. Raqueno
and the stranger were near the passenger side of a white car idling on the street.13 At
some point, Lopez screamed, “‘Stop, [s]top. I’m gonna call the cops.’” After Isaac and
Roger pulled Raqueno and the stranger apart, the stranger went to the car, reemerged with
a silver semiautomatic handgun, and shot Raqueno from a distance of six to eight feet.
Lopez did not hear gunfire, but saw Raqueno “holding his neck and struggling to get
around.”
       Lopez was shown a photo lineup that included a picture of Amezcua. She circled
Amezcua’s picture and wrote, “[S]omething about his face.”
       g.     Carissa Upshaw
       At or around midnight, Upshaw, a party guest, went to her truck, which was
parked on Davis Street, to change shoes. When she returned to the house, she noticed
that “everybody was … standing outside.” At that moment, a five-foot-four-inch to five-
foot-six-inch Hispanic man sporting a white T-shirt and “very short hair” approached the
front of the house and yelled “Sur 13” at least five times. Upshaw informed the man,
“[T]here’s nobody here that is gang-related. I think you have the wrong party.” At least
four male guests, including Raqueno, came to the front yard and told the stranger to “take
that somewhere else.” When the stranger walked around the house and onto Sherwood


13      In an interview conducted on the night of the shooting, Lopez told Officer Juan Gaona
that she heard Raqueno shout, “This is not that kind of a party.” She also heard someone yell,
“[S]outh side.”



                                               8.
Way, Raqueno and another guest jumped over the fence and told the stranger to leave.
After either Raqueno or the other guest pushed the stranger, Upshaw heard two gunshots.
She recalled that the stranger raised his arm “about shoulder height” and made a gesture
with his hand “as if [he] w[as] holding something,” but she did not see a gun. A white
four-door car appeared and the stranger entered the back seat through the passenger side.
After the car left, guests attended to Raqueno, who was injured.14
       h.      Joshua Lucero
       Lucero and two friends were in a convertible on Davis Street en route to Garcia’s
party. While they were looking for parking around midnight, Lucero saw Eucario and
Amezcua walking in the middle of Davis Street. He recognized Eucario as a neighbor of
his grandmother and a gang member by the moniker “Shy Boy” and Amezcua, who he
met a few times beforehand through Eucario, as a gang member by the moniker
“Menace.” Lucero exited the convertible, walked toward Eucario and Amezcua, and
said, “‘What’s up?’” Eucario and Amezcua, who were initially startled, recognized him,
told him to “kick back,” and stated, “‘We’re going to go down and handle some
business.’” Amezcua carried a small silver revolver. Both wore rubber gloves.
       Lucero returned to the convertible and advised his friends to leave the area.
Because one of his friends knew someone who was already at the party, the three drove
back toward the corner of Davis Street and Sherwood Way and warned that person via


14      In one interview conducted on the night of the shooting, Upshaw told Officer Dan Foss
that two Hispanic men approached the house, one of whom confronted Sheridan. One of the
strangers, who she identified as “Stutters,” wore latex gloves and fought Raqueno. During the
altercation, Stutters drew a small handgun and fired one round. Upshaw indicated that Stutters
“knew where she lived [and] where she worked.”
        In another interview, Upshaw told Bushey that the two men who approached the house
were between five feet three inches and five feet five inches in height, were “clean shaven,” had
“thin black hair,” and wore white T-shirts and blue jeans. One of the men fought Raqueno and
was pushed into a white four-door sedan. At that point, the man pulled out a gun and shot
Raqueno.



                                                9.
phone call “to get out of there.” When they arrived, Lucero saw “a bunch of people
outside” fighting. At some point, another car pulled up. As Lucero and his friends were
leaving the scene, he saw Amezcua standing on the sidewalk and firing the gun.
       i.     Joseph Suarez
       At or around midnight, Suarez was walking westbound on Sherwood Way en
route to the home of a friend who lived on Davis Street about “five houses down” from
the Marz residence. When Suarez made a left turn onto Davis Street, he saw two
“Mexican” men walking in the street. One of the men was “taller,” “skinny,” and “bald”
while the other was “shorter,” “more stocky,” and had “kind of long” hair. At least one
of them wore white gloves. Suarez initially passed the two men, but turned around when
he heard them yell, “[S]outh side,” “[F]uck you,” “[P]ussy,” and other gang slurs and
taunts toward the Marz residence. After the provocateurs turned left onto Sherwood
Way, “a few guys came out of the house wanting to fight” them and a “[c]ouple of guys
jumped the fence.” The taller provocateur fought a “tall” houseguest while the shorter
provocateur pointed a small silver gun at other houseguests who jumped over the fence.
       During the fight, a medium “tan brown” car appeared on the corner of Davis Street
and Sherwood Way. The taller provocateur entered the back seat while the armed
provocateur entered the passenger seat. Afterward, the tall houseguest kicked the front
passenger door. Suarez then heard a gunshot and saw a “big flash” from the inside of the
vehicle. When the car drove off, the tall houseguest walked back to the house and
collapsed next to the front gate.15
       Suarez was shown a six-pack photo lineup that included a picture of Amezcua. He
identified Amezcua as the shooter.




15     The record indicates that Raqueno stood five feet four and one-half inches tall.



                                               10.
       j.     Peter Major
       At trial, Major identified Eucario as “Shy Boy” and Amezcua as “Menace.” He
testified that he was Eucario’s “[g]ood friend” and met Amezcua for the first time in July
2008. On July 19, 2008, at or around 1:00 a.m., Major, then 12 years old, was in his
apartment, located at 120 West Cleveland Avenue, when he heard gunfire. Through his
sister’s bedroom window, he observed people running down Davis Street and yelling,
“[S]omebody got shot.” Major could not recall what he initially reported to police and
denied seeing Amezcua with a gun and hearing Amezcua comment on the shooting. He
acknowledged that “Southerners” loitered near a wall on Cleveland Avenue.
       In previous interviews dated July 28, 2008,16 Major told Detectives Robert Hill
and Hector Garibay that he was riding his bicycle outside sometime between midnight
and 1:00 a.m. when he saw a “light medium” grey car drop off Amezcua and Eucario on
Cleveland Avenue between Davis Street and Philip Street. The driver handed a silver
revolver to Amezcua, who “pushed [it] into his shorts.” Major followed Amezcua and
Eucario on his bicycle as they walked northbound on Davis Street. He saw them speak to
people in a black Mustang convertible. Afterward, Amezcua and Eucario circled the
block in the grey car twice and went to a house.17
       At some point, Major heard Amezcua yell, “[S]outh side.” He also saw someone
kick Eucario in the head as Eucario was entering the grey car. Before the car left,
Amezcua shot the person who kicked Eucario. A day later, Amezcua told Major “not to
say anything” and admitted, “I was trying to shoot more people but the gun broke.” In
addition, Eucario told Major that he originally intended to “hide [the gun] from the



16     The jury watched a video recording of these interviews.
17     Major also told detectives that Amezcua “got into a white [Ford] F150” at some point
before he and Eucario went to the house.



                                              11.
police,” but instead discarded the firearm because it was broken. Major noted that
Amezcua shaved his head after the shooting.
       k.     Susella Jaime
       At trial, Jaime, Major’s sister, identified Eucario as “Shy Boy.” She testified that
Eucario lived with her and her family, including Major, in 2008. Jaime could not recall
receiving a phone call from Eucario sometime after the shooting. In a previous interview
dated July 28, 2008,18 she told Hill and Garibay that Eucario called her and asked if he
could hide a gun “really good” at the apartment. Jaime refused.
II.    Subsequent searches and Amezcua’s arrest
       On July 22, 2008, police officers conducted a search at 17105 Avon Way,
Amezcua’s home address. They found a pair of jeans with a folded blue bandana in the
back pocket, a Dallas Cowboys sign, a Los Angeles Dodgers sweatshirt, other blue attire,
and a bulletproof vest. On the same day, officers conducted a search at 341 Wilson
Avenue, Eucario’s home address. They retrieved two photo albums and a T-shirt.
       While he was in the process of a serving the search warrant at 341 Wilson Avenue,
Officer James Ellenberger spotted Amezcua across the street. Amezcua fled and
Ellenberger chased him to a residence south of Cleveland Avenue. When Amezcua “took
a fighting stance,” Ellenberger forced him to the ground and arrested him.
III.   Gang evidence
       a.     Officer Jason Dilbeck
       Dilbeck, a gang expert, testified that 1,700 to 2,000 Sureños reside in Madera.
They wear blue clothes, including Dallas Cowboys and Los Angeles Dodgers apparel,
and identify with the number 13 because the 13th letter of the alphabet, M, stands for the
Mexican Mafia, the prison gang to whom they pledge allegiance. Sureños primarily
engage in shootings, stabbings, assaults with a deadly weapon, robberies, burglaries, and

18     The jury watched a video recording of this interview.



                                              12.
narcotics sales.19 Their chief rivals are the Norteños, whose members wear red attire, are
loyal to the prison gang Nuestra Familia, and identify with the number 14 because the
14th letter of the alphabet, N, stands for Nuestra Familia.
       Dilbeck opined that Amezcua was a Sureño. Police reports showed that Amezcua
actively associated with known Sureños from different subsets, including Vario Central
Gangsters (VCG), Vario Knox Street (VKS), Mi Vida Loca (MVL), Vatos Locos
Mexicanos (VLM), Pocos Para Locos (PPL), Vatos Locos Sureños (VLS), and the
defunct Playboy Sureños (PBS). He loitered in Sureño territory, uttered gang slogans,
wore blue clothing, possessed gang paraphernalia, “mad-dogg[ed]” Norteños, and was
involved in altercations with Norteños on a number of occasions. Amezcua admitted to
police that he was a Sureño and was identified by others as a Sureño. During a recent
search of his home, police found a bulletproof vest, blue clothing, a Los Angeles Dodgers
sweatshirt, and a Dallas Cowboys sign bearing his moniker “Menace,” the numbers one
and three, and symbols representing the number 13. Amezcua had several Sureño-related
tattoos, including a Playboy bunny and three dots.
       Dilbeck opined that Eucario was a VCG Sureño. Police reports showed that
Eucario actively associated with known members of VCG, MVL, and PBS, engaged in
misconduct with such individuals, loitered in Sureño territory, uttered gang slogans, wore
blue clothing, possessed gang paraphernalia, and referred to Norteños as his enemies. He
admitted to police that he was a VCG Sureño and was identified by others as a VCG
Sureño. During a recent search of Eucario’s home, police officers found a blue shirt
displaying the words “South Side 13,” “VCG,” and “C Life.” They also recovered photo
albums containing, inter alia, gang terminology and symbols such as the number 13, three


19     Dilbeck confirmed that validated Sureños have been convicted of offenses such as first
degree murder, voluntary manslaughter, assault with a deadly weapon, and willful discharge of a
firearm from a motor vehicle.



                                              13.
dots in a triangle, “VCG,” “Central Gangsters,” “SUR,” “V Central G,” “tres,” “Sureño
por vida,” and “VCG 187”; “roll-call” lists “paying respect” to VCG Sureños such as
Raul Roja, one of the subset’s founders; and photos of Eucario and known VCG Sureños
wearing Los Angeles Dodgers and Dallas Cowboys apparel and other blue attire,
“throwing up” gang signs, and flaunting their Sureño-related tattoos. Eucario’s various
tattoos included a bird with the letter “M,” the numbers one and three merged with
“VCG,” a Playboy bunny, three dots, and “XIII.”
       Dilbeck testified that the area bounded by Sherwood Way and Cleveland Avenue,
including 1224 Davis Street, is Norteño territory. VCG Sureños are found south of this
territory in the vicinity of Cleveland Avenue and Wilson Street and regularly frequent a
nearby wall. In response to the prosecutor’s hypothetical questions, Dilbeck opined that
two or more Sureños who are armed, enter enemy territory, and shout gang slogans
intend to commit a crime. If one of these Sureños shoots and kills a rival, the gang reaps
the benefits:

               “We talked about murder being the pinnacle of gang violence, by
       shooting a perceived rival…. Think about the reputation of the individual,
       he’s somebody in the criminal street gang who killed the enemy. It’s going
       to be that same level of honor, the, [‘H]ey, look at what we did.[’] That’s
       something you are going to be highly, highly proud of. You know, it would
       be like having a Super Bowl ring; that’s something you could wear for the
       rest of your life. And this is what they chose to do, this is how they
       succeed, is to do these types of activities. [¶] … [¶] That gives not only the
       violent reputation to them, but that’s that violent reputation the criminal
       street gang are going for, because it helps them in felonious conduct.”
Dilbeck added that Sureños may target those who merely appear to be Norteños:

       “[P]erception is reality in gang culture. And, you know unfortunately, …
       that’s been a problem in Madera for quite some time. Sometimes people
       that aren’t gang members are the victims of gang crimes because they get it
       wrong. [¶] … [Y]ou know you could get shot for wearing a Cowboys’
       jersey and because you’re a Cowboys fan, and that’s unfortunate. In the
       same way, you could get shot for wearing a red … jersey in the wrong
       neighborhood. Like I said, perception is reality to them. It doesn’t have to


                                            14.
       be true. You don’t have to be a gang member to be the victim of a gang
       member.”
       b.     Gerardo Ramirez
       At trial, Ramirez, Eucario’s cousin, denied being familiar with VCG and could not
recall joining this Sureño subset. In a previous interview dated July 21, 2008, Ramirez
informed Garibay that he was a VCG Sureño and was “jumped in” the gang by Eucario,
inter alios, in January 2008.
       c.     Veronica Marmolejo
       At trial, Marmolejo, Amezcua’s mother, denied that Amezcua was a gang
member. She testified that her home was vandalized once. Specifically, the perpetrators
wrote the number “14” on the garage door. Marmolejo did not know who was
responsible for the damage.
       In a previous interview dated July 22, 2008, Marmolejo informed Hill that
Amezcua was “a gang member” and was “hanging out with the wrong people.” In the
past, her home had been vandalized and targeted in a drive-by shooting by “enemies [of]
her son.”
                                     DISCUSSION

I.     The trial court was not obliged to instruct the jury on involuntary
       manslaughter as a lesser included offense of murder because there was no
       substantial evidence that the killing was committed without malice
       aforethought
       a.     Background
       On March 5, 2012, Amezcua’s attorney requested CALCRIM No. 580 for
involuntary manslaughter as a lesser included offense of murder. The trial court
observed:

                “If we did give [CALCRIM No. 580], the crimes … would be …
       [section 417, subdivision (a)(2)], brandishing a firearm; and [section 245,
       subdivision (a)], assault with a deadly weapon. [¶] … [¶] It would have to
       be that the jury would find that somehow [Amezcua] intended to brandish
       it, but it went off accidentally … [¶] … [¶] [o]r … that he intended to


                                           15.
       assault, but not necessarily intended to kill. [¶] … [¶] I think the issue,
       though, on [CALCRIM No.] 580, and this is something I want all parties to
       look at, is whether there is any factual basis for it. There’s speculation. If
       [Amezcua] testified there might be some basis for it. But absent
       [Amezcua] testifying, I think anything else will be speculation at this point.
       I’m not sure you could articulate a reasonable set of facts.”
The prosecutor maintained that CALCRIM No. 580 was unwarranted because the
evidence did not sufficiently demonstrate lack of malice. Amezcua’s attorney disagreed.
       On March 6, 2012, the court decided not to give the instruction:

       “[The Court] would cite [Garcia, supra,] 162 Cal. App.4th … [at] page
       31.… [T]o quote …, ‘In light of the Supreme Court’s holdings in People
       vs. Blakeley [(2000) 23 Cal.4th 82, and] People vs. Lasko [(2000) 23
       Cal.4th 101], that a specific intent to kill is not an element of the crime of
       voluntary manslaughter, and particularly[] [their] express[] disapproval of
       the statement in [People v.] Burroughs[ (1984) 35 Cal.3d 824], … that …
       proof of such an intent is required, … we … conclude an unlawful killing
       during the commission of an inherently dangerous felony, even if
       unintentional, is at least voluntary manslaughter.’[20]

              “And reading this case and others that it cites, the Court cannot
       articulate or see how it could be articulated that there is … a complete
       defense as self-defense, or a complete defense as accident, … or an
       imperfect [self-]defense, as would reduce … murder to voluntary
       manslaughter.

               “The Court cannot articulate a crime, a misdemeanor, that was being
       engaged in that really was not, in this case, an inherently dangerous felony.
       It seems to me that the evidence is that there was a loaded firearm; clearly,
       that is undisputed…. [A]t some point somebody, at the very minimum,
       brandished a firearm, a loaded firearm, which under [section] 417[,
       subdivision (b),] is a felony and certainly inherently dangerous felony.[21]
       (Underlining omitted.)


20     As noted, the Supreme Court rejected this formulation of voluntary manslaughter in
Bryant, supra, 56 Cal.4th at page 970. (Ante, fn. 3.)
21       The trial court mistakenly applied section 417, subdivision (b), which is limited to cases
in which the proscribed conduct is committed on the grounds of a day care center or other youth
facility. (See People v. Rivera (2003) 114 Cal.App.4th 872, 876-879.)



                                                16.
              “So it doesn’t seem it to me that involuntary manslaughter would be
       an appropriate lesser included. [¶] … [¶] [T]he Court is convinced that
       under the facts of this case, there isn’t a basis for involuntary manslaughter;
       and therefore, the Court would simply have the verdicts be as to murder 1,
       murder 2, and voluntary manslaughter as to Mr. Amezcua.”
       b.     Standard of Review
       We review de novo a trial court’s refusal to instruct on a lesser included offense.
(People v. Cook (2006) 39 Cal.4th 566, 596 (Cook); People v. Cole (2004) 33 Cal.4th
1158, 1215, 1218; People v. Waidla (2000) 22 Cal.4th 690, 733.)
       c.     Analysis
       “A criminal defendant has a constitutional right to have the jury determine every
material issue presented by the evidence, and an erroneous failure to instruct on a lesser
included offense constitutes a denial of that right. To protect this right and the broader
interest of safeguarding the jury’s function of ascertaining the truth, a trial court must
instruct on an uncharged offense that is less serious than, and included in, a charged
greater offense, even in the absence of a request, whenever there is substantial evidence
raising a question as to whether all of the elements of the charged greater offense are
present.” (People v. Huggins (2006) 38 Cal.4th 175, 215.) “This venerable instructional
rule ensures that the jury may consider all supportable crimes necessarily included within
the charge itself, thus encouraging the most accurate verdict permitted by the pleadings
and the evidence.” (People v. Birks (1998) 19 Cal.4th 108, 112.)
       Involuntary manslaughter is a lesser included offense of murder. (People v.
Thomas (2012) 53 Cal.4th 771, 813; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145;
People v. Prettyman (1996) 14 Cal.4th 248, 274.) Whereas murder is “the unlawful
killing of a human being … with malice aforethought” (§ 187, subd. (a)), involuntary
manslaughter is the unlawful killing of a human being without malice (1) “in the
commission of an unlawful act, not amounting to felony” (§ 192, subd. (b)); (2) “in the
commission of a lawful act which might produce death, in an unlawful manner, or



                                             17.
without due caution or circumspection” (ibid.); or (3) “in the commission of a
noninherently dangerous felony … if ‘committed without due caution and
circumspection’” (Bryant, supra, 56 Cal.4th at p. 966, quoting People v. Burroughs,
supra, 35 Cal.3d at p. 835).
       “If the evidence presents a material issue of whether a killing was committed
without malice, and if there is substantial evidence the defendant committed involuntary
manslaughter, failing to instruct on involuntary manslaughter would violate the
defendant’s constitutional right to have the jury determine every material issue.” (Cook,
supra, 39 Cal.4th at p. 596; see People v. Rogers (2006) 39 Cal.4th 826, 884 [“An
instruction on involuntary manslaughter is required whenever there is substantial
evidence indicating the defendant did not actually form the intent to kill.”].) As to what
constitutes “substantial evidence” in this context, the Supreme Court explained:

       “[T]he existence of ‘any evidence, no matter how weak’ will not justify
       instructions on a lesser included offense, but such instructions are required
       whenever evidence that the defendant is guilty only of the lesser offense is
       ‘substantial enough to merit consideration’ by the jury. [Citations.]
       ‘Substantial evidence’ in this context is ‘“evidence from which a jury
       composed of reasonable [persons] could … conclude[]”’ that the lesser
       offense, but not the greater, was committed. [Citations.] [¶] In deciding
       whether there is substantial evidence of a lesser offense, courts should not
       evaluate the credibility of witnesses, a task for the jury. [Citations.]”
       (People v. Breverman (1998) 19 Cal.4th 142, 162; see People v. Wilson
       (1992) 3 Cal.4th 926, 942 [“Speculation is an insufficient basis upon which
       to require the trial court to give an instruction on a lesser included
       offense.”].)
       We conclude that there was no substantial evidence that the killing was committed
without malice aforethought. “‘[M]alice aforethought’” is “an essential element of the
crime of murder whether it be of the first degree or of the second degree.” (People v.
Bender (1945) 27 Cal.2d 164, 180, italics omitted.) To establish the “mental state of
malice aforethought,” the evidence must establish that “the killing resulted from the
intentional doing of an act with express or implied malice .…” (§ 188.) Express malice


                                            18.
is established “when there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature.” (Ibid.) “Malice is implied … when a killing results from an
intentional act, the natural consequences of which are dangerous to human life, and the
act is deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life.” (Cook, supra, 39 Cal.4th at p. 596; see People v. Swain
(1996) 12 Cal.4th 593, 602-603.) Malice may be proven by direct evidence, such as a
defendant’s declaration of his or her state of mind before, during, or after the killing, or,
in the absence of direct evidence, circumstantial evidence derived from, inter alia, a
defendant’s words and actions. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945-
946.)
        Prior to the shooting, Amezcua, who was identified as the gunman by several
witnesses, procured a loaded firearm and gloves. He and Eucario, deemed by Dilbeck to
be a Sureño and VCG Sureño, respectively, expressly warned Lucero to “kick back”
because they were “‘going to go down and handle some business’” at 1224 Davis Street,
where people were attending a party in red clothing and appeared to be Norteños. Before
Amezcua and Eucario headed to the house, they and their companions circled the block
twice in their vehicle. Outside of the residence, Amezcua and Eucario’s group yelled
Sureño gang slogans and taunts and refused to leave when asked to do so by Garcia and
several of her guests. Once fighting ensued between Amezcua and Eucario’s group and
some of the unarmed guests, Amezcua drew and pointed the firearm at, inter alios, Isaac
and Roger, who backed away. However, when Raqueno resisted, Amezcua shot Raqueno
in the neck before he and Eucario left in their vehicle. Sometime after the shooting,
Amezcua told Major, “I was trying to shoot more people but the gun broke.” In view of
this evidence of malice aforethought (see People v. Nieto Benitez (1992) 4 Cal.4th 91,
108 [“only … unlawful killings committed without malice are defined as
manslaughter”]), the trial court was not obliged to instruct the jury on any theory of
involuntary manslaughter as a lesser included offense of murder (see People v. Holloway

                                             19.
(2004) 33 Cal.4th 96, 141 [“no fundamental unfairness or loss of verdict reliability results
from the lack of instructions on a lesser included offense that is unsupported by any
evidence upon which a reasonable jury could rely”]).22

II.    The trial court’s issuance of CALCRIM No. 250 for counts 1 and 2 and
       CALCRIM No. 251 for count 2 did not prejudice Amezcua because the
       evidence showed beyond a reasonable doubt that the erroneous instructions
       made no difference in reaching the verdict obtained
       a.     Background
       On March 7, 2012, the prosecutor described the mental state of malice
aforethought in summation:

              “Unlawful homicide is murder.… Now, murder with malice
       aforethought: A person is killed by another; the killing is unlawful; there’s
       no justification …. And it’s done with the state of mind that the law calls
       ‘malice aforethought’ .… [¶] … There’s two kinds; it’s either express or
       it’s implied .… Express malice basically means an intent to kill. An
       express malice means you intend to kill.… [¶] If it’s done knowing that it
       was dangerous and with conscious disregard for human life, that is implied
       malice…. [¶] … [¶] First-degree murder requires express malice .…
       Second-degree, express or implied malice …. It’s implied malice when
       you do an act which shows a conscious disregard for human life, and that’s
       second-degree.…”
Likewise, Amezcua’s attorney referred to malice aforethought in summation:

               “Now, I will move on to first or second-degree murder.… [¶] … [¶]
       [T]he first [element] would be [Amezcua] committed an act that caused the
       death of another person…. [¶] The second element is when [Amezcua]
       acted he had the state of mind called malice aforethought…. Malice
       aforethought is defined in [CALCRIM No. 520.] There [are] two
       definitions[:] [first,] he intentionally committed an act. [¶] … [¶] The

22      Since we conclude that there was no substantial evidence that the killing was committed
without malice aforethought, we need not address Amezcua’s assertion that a “‘catch-all’”
instruction on involuntary manslaughter is required where an unlawful killing does not meet the
definition of murder or voluntary manslaughter.
       Furthermore, because we find no error, we need not address Amezcua’s argument
concerning prejudicial error.



                                              20.
       second definition of malice aforethought is that it was a natural and
       probable consequence[] of the act that w[as] dangerous to human life….”
       After closing arguments, the trial court provided the jury with the following
instructions:

              “The People must prove not only that [Amezcua] did the acts
       charged, but also that he acted with a particular intent and/or mental
       state.… [¶] … [¶]

               “[CALCRIM No. 250:] The crimes or other allegations charged in
       this case require proof of union or joint operation of act and wrongful
       intent. For you to find a person guilty of the crime of murder as charged in
       Count 1 or the crime of unlawful participation in a criminal street gang as
       charged in Count 2 or to find the allegation of personally and intentionally
       discharging a firearm or the allegation of a principal personally using a
       firearm, that person must not only commit the prohibited act but must do so
       with wrongful intent. [¶] A person acts with wrongful intent when he or
       she intentionally does a prohibited act. However, it is not required that he
       or she intend to break the law. The act required is explained in the
       instruction for that crime or allegation.

               “[CALCRIM No. 251:] The crime of unlawful and active
       participation in a criminal street gang as charged in Count 2 in this case
       requires a proof of the union or joint operation of act and a certain mental
       state. For you to find a person guilty of the crime of unlawful and active
       participation in a criminal street gang in Count 2, that person must not only
       intentionally commit the prohibited act but must do so with a specific
       mental state. The act and the specific mental state required are explained in
       the instruction for that crime. [¶] … [¶]

               “[CALCRIM No. 520:] [Amezcua] is charged in Count 1 with
       murder, in violation of Penal Code Section 187. To prove that [Amezcua]
       is guilty of this crime, the People must prove that, one, [Amezcua]
       committed an act that caused the death of another person. Two, when
       [Amezcua] acted he had a state of mind called malice aforethought. And
       three, he killed without lawful justification. There are two kinds of malice
       aforethought, express malice and implied malice. Proof of either is
       sufficient to establish a state of mind required for murder. [Amezcua] acted
       with express malice if he unlawfully intended to kill. [¶] [Amezcua] acted
       with implied malice if, one, … he intentionally committed an act. Two, the
       natural and probable consequences of the act were dangerous to human life.
       And three, at the time he acted he knew his act was dangerous to human


                                            21.
       life. And four, he deliberately acted with conscious disregard for human
       life. Malice aforethought does not require hatred or ill will toward the
       victim. It is a mental state that must be formed before the act that causes
       death is committed. It does not require deliberation or the passage of any
       particular period of time. [¶] … [¶]

              “[CALCRIM No. 1400:] [Amezcua] is charged in Count 2 with
       participating in a criminal street gang in violation of Penal Code
       Section 186.22, Sub[division] (a). To prove that [Amezcua] is guilty of this
       crime, the People must prove that, one, [Amezcua] actively participated in a
       criminal street gang; two, when [Amezcua] participated in a gang, he knew
       that members of the gang engaged in or had engaged in a pattern of
       criminal street gang activity; and three, [Amezcua] willfully assisted,
       furthered or promoted felonious criminal conduct by members of the gang,
       either by A, directly and actively committing a felony offense; or B, aiding
       and abetting in a felony offense.”
       b.     Standard of Review
       We review de novo a trial court’s instruction on intent and/or mental state. (See
People v. Alvarez (1996) 14 Cal.4th 155, 219-220.)
       c.     Analysis
       A trial court has a sua sponte duty to instruct on all of the elements of a charged
offense (People v. Cummings (1993) 4 Cal.4th 1233, 1311; People v. Magee (2003) 107
Cal.App.4th 188, 193), including the intent and/or mental state required to commit the
offense and the union of that intent and/or mental state and the defendant’s act (People v.
Alvarado (2005) 125 Cal.App.4th 1179, 1185; see People v. Garcia (2001) 25 Cal.4th
744, 754.)
       In the instant case, we find—and the Attorney General concedes—that the trial
court improperly instructed the jury on the intent and/or mental state needed for each
charged offense. The court issued CALCRIM No. 250 on the union of act and general
intent for counts 1 and 2. “However, this instruction must not be used if the crime
requires a specific mental state, such as knowledge or malice .… In such cases, the court
must give CALCRIM No. 251 .…” (Bench Notes to CALCRIM No. 250, italics added.)
“‘[M]alice aforethought’” is “an essential element of the crime of murder” (People v.


                                            22.
Bender, supra, 27 Cal.2d at p. 180) while “knowledge that the gang’s members engage in
or have engaged in a pattern of criminal gang activity” is an element of the gang
participation offense (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez);
accord, § 186.22, subd. (a)). Thus, the use of CALCRIM No. 250 was inappropriate.
The court compounded its mistake by concurrently providing CALCRIM No. 251 on the
union of act and specific intent and/or mental state for count 2. As noted, CALCRIM
No. 250 and CALCRIM No. 251 are mutually exclusive instructions. Instead, the court
should have given solely CALCRIM No. 251 for counts 1 and 2.
       By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted,
in any cause, on the ground of misdirection of the jury, … unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; see
People v. Breverman, supra, 19 Cal.4th at p. 173 [“The phrase ‘misdirection of the jury,’
… logically ‘“‘includes every kind of instructional error.’”’”].) “An instruction that
omits a required definition of or misdescribes an element of an offense is harmless only if
‘it appears “beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.”’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774
(Mayfield); see People v. Chavez (2004) 118 Cal.App.4th 379, 387 (Chavez); People v.
Magee, supra, 107 Cal.App.4th at p. 194; see generally Chapman v. California (1967)
386 U.S. 18, 24.) We explained this standard in an earlier case:

               “In assessing prejudice, we consider whether ‘it appears “beyond a
       reasonable doubt that the error complained of did not contribute to the
       verdict obtained.”’ [Citations.] Further, ‘[t]o say that an error did not
       contribute to the verdict is … to find that error unimportant in relation to
       everything else the jury considered on the issue in question, as revealed in
       the record.’ [Citations.] The evidence must be ‘“of such compelling force
       as to show beyond a reasonable doubt” that the erroneous instruction “must
       have made no difference in reaching the verdict obtained.”’ [Citation.]”
       (Chavez, supra, at p. 387.)



                                             23.
       We find that the trial court’s erroneous issuance of CALCRIM No. 250 for
counts 1 and 2 and CALCRIM No. 251 for count 2 made no difference in reaching the
verdict obtained. As to count 1, the court indicated to the jury at the outset that a
particular mental state was needed for each charged offense and subsequently provided
CALCRIM No. 520, which specifies that malice aforethought is a necessary element of
first or second degree murder. (See People v. Bolin (1998) 18 Cal.4th 297, 328 [“‘“The
absence of an essential element in one instruction may be supplied by another or cured in
light of the instructions as a whole.”’”]; Mayfield, supra, 14 Cal.4th at p. 777 [“When
considering a challenge to a jury instruction, we do not view the instruction in artificial
isolation but rather in the context of the overall charge.”] Moreover, the prosecutor and
Amezcua’s attorney apprised the jury of this requirement in their closing arguments.
(See Chavez, supra, 118 Cal.App.4th at p. 388, citing People v. Lee (1987) 43 Cal 3d
666, 677 [“closing arguments to the jury are relevant in evaluating prejudice”].)
CALCRIM No. 250 notwithstanding, we conclude beyond a reasonable doubt that the
jury believed that proof of malice aforethought was needed to convict Amezcua of
second degree murder.
       As to count 2, the court advised the jury that a particular mental state was needed
for each charged offense and subsequently provided CALCRIM No. 1400, which
specifies that a defendant’s knowledge that members of a criminal street gang engage in
or have engaged in a pattern of criminal activity is a necessary element of gang
participation. (See People v. Bolin, supra, 18 Cal.4th at p. 328; Mayfield, supra, 14
Cal.4th at p. 777.) We conclude beyond a reasonable doubt that the jury believed that
such knowledge was needed to convict Amezcua of this offense.




                                             24.
III.   The trial court did not abuse its discretion when it allowed the prosecutor to
       argue that jurors may draw a negative inference from an immunized
       witness’s refusal to provide relevant testimony
       a.     Background
       On February 21, 2012, the prosecutor informed the trial court that Antonio Ruiz, a
prosecution witness and Eucario’s brother, was arrested earlier that morning on unknown
charges. On February 22, 2012, in response to Eucario’s attorney’s request for an offer
of proof as to Antonio’s testimony, the prosecutor stated that Antonio spoke with police
at or around the time of Raqueno’s death and provided significant information about
Eucario’s gang involvement. On February 23, 2012, Antonio, through his attorney,
asserted the privilege against self-incrimination under the Fifth Amendment. The
prosecutor, in turn, offered use immunity. On February 27, 2012, the court signed an
order granting use immunity. Nonetheless, Antonio refused to answer the prosecutor’s
questions during an Evidence Code section 402, subdivision (b), hearing. On
February 28, February 29, and March 1, 2012, in contravention of the use immunity
order, Antonio maintained that he would not answer questions.
       On February 29, 2012, at trial, Dilbeck opined that gang members “perceive that
people who testify against them are de facto snitches.” He detailed:

              “Gang members are not supposed to cooperate with law
       enforcement. If you’re a Sureño and you get shot, and I go contact you, …
       you’re either probably not going to give me great information, or you’re
       going to give me just enough to get me off your back, and you’re going to
       have a lot of ‘I don’t know,’ stuff like that…. [T]hey’re not supposed to
       cooperate with us. And you see it from investigation to investigation to
       investigation.”
Dilbeck also testified, based on police reports, that Amezcua associated with Antonio, a
“well-known VCG Sureño” known by the moniker “Rascal.” At an Evidence Code
section 402, subdivision (b), hearing, Dilbeck asserted that he relied on Antonio’s
statements in a July 24, 2008, police interview to form his opinion that Amezcua
participated in a criminal street gang.


                                            25.
       On March 1, 2012, at trial, Dilbeck testified that he studied the transcript of
Antonio’s police interview. During the interview, Antonio stated that he was “jumped
in” VCG by Raul Roja and Eucario, inter alios. He corroborated that VCG “started on
Central [Avenue],” “had rules,” did not have female members, “victimized rival
Norteños,” and “hadn’t done a homicide.” Dilbeck found Antonio’s remarks revealing:

       “[W]hen VCG first started, they weren’t known as a violent criminal street
       gang. They did mostly property crimes. It wasn’t until about 2007 where
       they started taking more of a violent role. And so pretty much when they
       were on Central … we didn’t pay [th]em a lot of attention because they
       weren’t real violent. But when they moved to Cleveland they were right
       next to Norteño territory, and so all the violence ramped up. So then we
       started contacting more VCG guys because they were involved in a higher
       level of violence. [¶] And then when I looked at the photographs that were
       at Eucario[’s] house[], where it has the pictures with the 187 …, that’s
       where this kind of stuff ha[s] significance because now, [in] my opinion,
       VCG was involved in a homicide now. That’s where it corroborated the
       information I had for my opinion. [¶] … [¶]

              “[Eucario ‘jumping in’ Antonio] shows active participation in the
       gang. And it also shows[,] you know, that [Eucario was] a member in good
       standing. You wouldn’t jump in somebody if you weren’t a member of that
       gang, so … it’s very telling.”
       On March 1, 2012, the prosecutor asked the court, on the basis of People v. Lopez
(1999) 71 Cal.App.4th 1550 (Lopez) and People v. Morgain (2009) 177 Cal.App.4th 454
(Morgain) to allow her to question Antonio before the jury so that the jury would become
aware of his refusal to testify. Amezcua’s attorney objected on the grounds that Lopez “is
wrong” and Morgain “is [not] on point.” On March 6, 2012, the court granted the
prosecutor’s request.
       On March 6, 2012, Antonio reiterated that he would not answer questions. He was
thereafter called to the stand and refused to answer the prosecutor’s questions about
whether he knew Amezcua or Eucario, whether he was familiar with VCG, and whether
he was known by the gang moniker “Rascal.” On cross-examination by Eucario’s
attorney, Antonio testified that he did not wish to testify against his brother. On redirect

                                             26.
examination, he refused to answer any of the prosecutor’s questions. Subsequently, the
court instructed the jury:

       “Ladies and gentleman, the Court would strike the testimony of this
       witness. A witness has an obligation to testify and answer questions posed
       to that witness by all counsel. The witness does not have the right to
       answer questions from one attorney and not answer questions from the
       other attorney. Therefore, the witness having refused to answer further
       questions from [the prosecutor], the Court would strike all testimony of this
       witness. [¶] Ladies and gentleman, as I’ve explained before, when the
       Court strikes testimony, you are to treat [it] as though you have not heard
       it.”
       On March 7, 2012, the prosecutor stated in her summation:

       “You can make a reasonable inference from facts or testimony. You can
       make reasonable inferences. For example, you can infer from the fact that
       Antonio Ruiz refused to answer questions that he was—you [can] take a
       negative inference from the fact he did not want to testify in this case.”
       b.     Standard of Review
       “A trial court’s exercise of discretion in admitting or excluding evidence is
reviewable for abuse [citation] and will not be disturbed except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20
Cal.4th 1, 9-10.)
       c.     Analysis
       “No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“‘Relevant evidence’ means evidence … having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘“logically,
naturally, and by reasonable inference” to establish material facts such as identity, intent,
or motive. [Citations.]’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1166.)
“The trial court is vested with wide discretion in determining the relevance of evidence”



                                             27.
(People v. Babbitt (1988) 45 Cal.3d 660, 681), but “has no discretion to admit irrelevant
evidence” (ibid.).
       Amezcua was charged with active participation in a criminal street gang, the
elements of which are (1) “active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive”; (2) “knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity”; and
(3) “willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang.” (Rodriguez, supra, 55 Cal.4th at p. 1130; accord, § 186.22,
subd. (a); see Rodriguez, supra, at p. 1132 [“The plain meaning of section 186.22[,
subdivision ](a) requires that felonious criminal conduct be committed by at least two
gang members, one of whom can include the defendant if he is a gang member.”].) The
prosecutor intended to call as a witness Antonio, a VCG Sureño whose testimony would
be relevant as to whether Amezcua and Eucario participated in the gang. Antonio
asserted the privilege against self-incrimination and the court thereafter signed an order
granting him use immunity. “[W]here a witness receives immunity, that witness’s
testimony is compelled and the witness no longer has a privilege against self-
incrimination.” (Morgain, supra, 177 Cal.App.4th at pp. 466-467, citing United States v.
Washington (1977) 431 U.S. 181, 187 & Kastigar v. United States (1972) 406 U.S. 441,
455-458; see § 1324.) Nonetheless, Antonio repeatedly stated his unwillingness to testify
before he was called to the stand on March 6, 2012. In front of the jury, he refused to
answer the prosecutor’s questions. “[W]here a witness has no constitutional or statutory
right to refuse to testify, … [j]urors are entitled to draw a negative inference when such a
witness refuses to provide relevant testimony.” (Lopez, supra, 71 Cal.App.4th at p. 1554;
see Evid. Code, § 911, subds. (a)-(b) [“Except as otherwise provided by statute: [¶] No
person has a privilege to refuse to be a witness … [¶] [or] to refuse to disclose any matter
or to refuse to produce any writing, object, or other thing.”].) Hence, the court did not
exercise its discretion “in an arbitrary, capricious, or patently absurd manner” (People v.

                                            28.
Rodriguez, supra, 20 Cal.4th at p. 9) when it allowed the prosecutor to tell jurors in
summation that they may draw a negative inference from Antonio’s refusal to answer her
questions. “[I]f any error in judgment was committed, it was committed by [Antonio],
not the court.” (Lopez, supra, at p. 1556.)
       Amezcua contends that the court should have admonished the jury to disregard
Antonio’s refusal to answer the prosecutor’s questions because “there was no logical and
non-speculative inference [from] which … Amezcua’s jury could draw from Antonio[’s]
obstina[cy].” We disagree. “An inference is a deduction of fact that may logically and
reasonably be drawn from another fact or group of facts found or otherwise established in
the action.” (Evid. Code, § 600, subd. (b); accord, People v. Davis (2013) 57 Cal.4th
353, 360.) Here, Dilbeck testified that Sureños abhor snitches and are generally
uncooperative with law enforcement. Antonio’s recalcitrance on the stand validated
Dilbeck’s opinion. The jury could reasonably deduce that Antonio, by virtue of his
silence, acted to protect Amezcua and Eucario, his fellow Sureños. (See Lopez, supra, 71
Cal.App.4th at pp. 1555-1556.) Such an inference was relevant to the question of
whether Amezcua was guilty of the crime of gang participation.23




23     Because we find no error, we need not address Amezcua’s argument concerning
prejudicial error.



                                              29.
                                 DISPOSITION
     The judgment is affirmed.


                                               _____________________
                                                              Kane, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Poochigian, J.




                                     30.
