Filed 12/24/14 P. v. Valerio & Kelly CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047217

         v.                                                            (Super. Ct. No. 08NF4115)

NICHOLAS DIOGENES VALERIO and                                          OPINION
JARRELL KELLY,

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed in part, reversed in part, and remanded with directions.
                   Sharon G. Wrubel, under appointment by the Court of Appeal, for
Defendant and Appellant Nicholas Diogenes Valerio.
                   Cliff Gardner, under appointment by the Court of Appeal, for Defendant
and Appellant Jarrell Kelly.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
              Early one morning in 2006, gunfire erupted in the parking lot of a Denny’s
restaurant in Anaheim. When the shooting stopped, Armand Jones, a promising young
actor, was dead, and Ronnell Spencer, one of Jones’s friends and a clothing store owner,
was wounded. The shooting followed an armed robbery in the men’s restroom of the
Denny’s. Yolanda Brown, Stanley Simon, Charles Reynolds, Jarrell Kelly and Nicholas
Diogenes Valerio, associates or members of the Rollin 20’s criminal street gang, were
prosecuted for robbery, murder, attempted murder, and street terrorism.
              Valerio and Kelly (defendants) were convicted by a jury of first degree
murder, premeditated attempted murder, two counts of robbery and active participation in
a criminal street gang.1 The jury found additional allegations of felony-murder and gang-
related murder special circumstances, being active participants in a criminal street gang,
vicariously discharging firearms and causing great bodily injury and death, and
committing all crimes for the benefit of, at the direction of, or in association with the
Rollin 20’s criminal street gang. The trial court sentenced both defendants to life without
the possibility of parole (LWOP), plus indeterminate life terms of 20 or 25 years for the
gun use.
              Defendants challenge the sufficiency of the evidence to prove the special
circumstances findings. They also claim the trial court committed several instructional
errors, erroneously denied their new trial motion based on newly discovered evidence,
and made several sentencing errors.
              We conclude sufficient evidence supports the felony-murder special-
circumstance finding as to both defendants. However, the Attorney General concedes

              1 Brown, Simon and Reynolds were separately tried and convicted.
(People v. Brown (Aug. 28, 2013, G046404) [nonpub. opn.] review denied Dec. 13,
2013; People v. Simon (Aug. 28, 2013, G045927) [nonpub. opn.] review denied Dec. 12,
2013; People v. Reynolds (Sept. 5, 2013, G046121) [nonpub. opn.] review denied Dec.
12, 2013.)

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and we agree, as to Valerio the gang-related murder special circumstance must be
reversed for insufficient evidence. In all other respects, Valerio’s convictions are
affirmed. Nevertheless, with respect to Valerio, we conclude the trial court should be
permitted to consider the constitutionally of his LWOP sentence in light of his relatively
minor criminal record, youth, and subordinate role during the robberies.
              The parties all agree the trial court made several sentencing errors as set
forth below. As to Kelly, the judgment is modified to address those sentencing errors,
and affirmed as modified. As to Valerio, if the trial court determines on remand his
current sentence is constitutional, his sentence must also be modified.
                                          FACTS
1. Background
              On the night of March 16, 2006, Dwayne Washington, Armand Jones,
Giovanni Boyd, and Brent Hurd went to the Boogie nightclub in Anaheim. Jones,
Washington, and Boyd were wearing gold chains and diamond stud earrings. Jones also
had an expensive watch, and Washington was wearing some popular and expensive
shoes. They were celebrating the fact Jones had just finished working in a movie
entitled, Freedom Writers. They were not members of a criminal street gang, nor were
they armed.
              On the same night, another group of people met at the Boogie nightclub.
Ebony Aguilar, Damon Hill and Kalup Hartley drove to the Boogie in Hill’s Camaro.
Once there, they joined Kelly, Brown and Reynolds. Hill, Kelly, Brown and Reynolds
were either members or associates of the Rollin 20’s criminal street gang, and at least two
members of this group carried guns.
              After the Boogie nightclub closed, both groups ended up at a nearby
Denny’s. The restaurant was crowded so Jones and his friends paid the Denny’s manager
$20 to get seated ahead of a number of other people. A group of women complained, and



                                             3
the guys invited them to join them at their table. Ronnell Spencer, the owner of a
clothing store Jones frequented, also sat down with them.
              After some period of time, Washington and Boyd decided to go to the
restroom. Brown, Kelly, Reynolds, Simon, Hill, and Valerio followed them into the
restroom a few minutes later. Hill or Kelly had a .357- or .38-caliber revolver, and
Reynolds and Simon had a .357- or .38-caliber revolvers.
              Brown and another man approached Washington and said, “Give me your
chain, cuz. Give me all your stuff.” A third male, Simon, pointed a gun in Washington’s
face. Washington looked around, and he saw and recognized Kelly. Washington said, “I
know you . . . you gonna let your boys do this to me?” Simon asked Kelly, “You know
this dude, cuz?” Kelly, who Washington testified was unarmed, said, “no.” Brown and
an unidentified man went through Washington’s pockets, and took his cell phone, the
gold chain from around his neck, and his shoes while Simon pointed a gun at
Washington’s head and threatened to shoot.
              Brown left the restroom, while three men, including Valerio, forced their
way into Boyd’s stall just as Boyd opened the door. Valerio asked Boyd where he was
from. Boyd understood this to be a gang challenge, and he replied, “No, no, I don’t
bang.” Valerio demanded Boyd give him “all [his] shit.” Boyd took off his shoes and
necklace and handed them to Valerio. Valerio walked out of the stall as Hill came in.
Hill pointed a silver semiautomatic gun at Boyd and told him to empty his pockets. Hill
took Boyd’s car keys, cash, and cell phone. Boyd also said he heard someone say, “This
is 20’s,” during the robbery, and he knew there was a Long Beach criminal street gang
known as the Rollin 20’s.
              Brown quickly returned to the restroom and said someone else “with
chains” on was coming. She walked back out and Jones walked in. As Jones opened the
door, he saw Washington with his hands up and asked what was happening. Reynolds
pointed a gun at Jones and said, “give me your chains, cuz.” Jones refused. He hit

                                             4
Reynolds and a brief scuffle ensued just before everyone ran out of the restroom. The
robbers headed outside the Denny’s with Jones hot on their trail.
               Washington tried to warn Jones about the guns, but he could not catch him.
Spencer jumped up from his table, ran through the Denny’s entrance, and then outside
after Jones. Spencer produced a gun from somewhere, raised it over his head, pointed it
in the general direction of Jones’s attackers, and fired several shots. Jones’s attackers
returned fire, and Washington saw Jones stumble back through the Denny’s front door.
Jones asked his friend for help and then fell to the floor. Washington said Jones coughed
up some blood and died. Later, everyone learned that someone had shot Spencer in the
head during the gun battle.
               Investigating officers collected several bullets, bullet fragments, and
cartridge casings from the Denny’s parking lot. The parties stipulated the bullets, bullet
fragments, and cartridge casings came from four different guns. The evidence indicated
Spencer fired a Glock .45-caliber handgun several times, Jones had been killed with a one
of two .357- or .38-caliber handguns, and another person filed a single nine-millimeter
cartridge. The nine-millimeter gun turned up about two weeks after the shooting. It was
recovered by the Torrance Police Department during an investigation into another
shooting incident. As the police later discovered, during this gun battle, Kelly was shot
and Hill was present at the scene.
2. Defendants’ Statements
               In May 2010, Valerio submitted to police questioning after advisement of
his Miranda rights.2 He admitted having “LB” and “East Side Long Beach” tattoos. He
denied belonging to any criminal street gang, including Rollin 20’s, but he admitted he
had family in Rollin 20’s. Valerio claimed he had once gone to Anaheim with his sister.
He said they went to a club and he got drunk. They also stopped at a restaurant, perhaps

       2   Miranda v. Arizona (1966) 384 U.S. 436


                                              5
a Denny’s, to use to the restroom. Valerio said that when he walked out of the restroom,
he heard gunshots and ran outside to catch a ride home with his sister. He admitted
seeing Brown, his cousin, at the club, but he also said, “I didn’t kill nobody.”
              Kelly also submitted to a police interview. At first, Kelly denied ever
having been to the Boogie nightclub, denied participating in the robbery, and claimed to
have been working on the night of the shootings. He also denied being a Rollin 20’s
gang member, although he admitted claiming the gang in his youth.
              Later in the interview, Kelly admitted going to the Denny’s. He said he
went into the restroom and heard someone say “20’s” and “Insane.” When he came out
of the restroom, Kelly said he saw a group of guys beating someone else. He did not
know who they were, and he left the Denny’s to sit in a car with some girls. While they
were sitting in the car, Kelly heard gunshots and saw a heavyset guy come out of the
Denny’s with a gun in his hand. Kelly denied knowing Hill and denied having a gun.
3. Hill’s Testimony
              Hill testified in exchange for potential “consideration” in his own case. He
admitted associating with the Rollin 20’s. He grew up near Brown and her cousin, Kelly.
Hill claimed Brown and Valerio were Rollin 20’s associates while Reynolds, Simon,
Hartley, and Kelly were Rollin 20’s members.
              Hill testified he and four or five carloads of people from Long Beach
decided to go to the Boogie on the night Jones was killed. After the nightclub closed,
Brown, Hill, Simon, Kelly, Reynolds, Valerio, and Calvin Thomas, all members or
associates of the Rollin 20’s, decided to go to Denny’s. They all went inside the men’s
restroom. Hill said Simon had a revolver, Reynolds had a chrome .357-caliber gun, and
Kelly had a nine-millimeter semiautomatic.
              According to Hill, Simon pointed a gun at Washington’s face, while
Brown, Reynolds, and Kelly took his property. He saw Brown with Washington’s gold
chain and cell phone. Valerio and Thomas were in the restroom stall with Boyd. Hill

                                              6
said one of the victims recognized Kelly and said something. He also remembered
hearing Reynolds yell, “20’s.”
              Hill claimed he walked out of the restroom when Jones walked in. He
heard Jones ask, “What the hell is going on?” When Reynolds demanded Jones’s gold
chain, Jones refused. Jones hit Reynolds after Reynolds forcibly removed the gold chain
from around his neck.
              When Hill got to the parking lot, he saw Spencer come out of the
restaurant, and heard him yell, “You a’ll robbed my homeboys” while waving a gun in
the air. Hill thought Spencer was shooting at him because he had been involved in the
robbery, but he did not actually see where Spencer aimed his gun. Hill hid between two
cars as several shots were fired from various locations. When Jones came outside, Hill
saw Reynolds fire his .357-handgun and Kelly his nine-millimeter at him, but Hill
testified he saw Reynolds shoot Jones. Jones grabbed his chest and stumbled back inside
the Denny’s and died.
              Once the shooting stopped, Hill, Simon, and Kelly fled in the same car.
According to Hill, Simon looked “all shocked and traumatized.” He further testified that
Simon said, “I domed that nigga.” Hill understood Simon to mean he had shot someone
in the head. In fact, Spencer had been shot in the head. The bullet entered his head
above his left ear, traveled under the skin along the skull, and exited through the back of
Spencer’s head.
              Hill also testified that during the trial he, Kelly and Valerio had been put
into adjacent holding cells. Kelly insisted on communicating with Hill despite Hill’s
attempts to ignore him. Hill testified Kelly used hand signs to threaten him, and verbally
threatened him. According to Hill, Kelly hand signed, “Don’t do it. That ain’t true. I
thought we was boys. I thought you was my boy. They don’t got nothing on me. The
case rests on you. The ball is in your court,” and “Hey, they snitching on you, too, so
why are you doing this?” Hill also testified Kelly verbally asked him about his sister and

                                             7
then said, “Man, you see what happened to your sister. You don’t want this kind of shit
to keep happening, do you?” Hill’s sister had died prior to Hill testifying at another,
related trial. Kelly also told Hill that he knew where Hill’s grandmother lived. The jury
saw the holding cell surveillance tape, but the tape did not have audio.
4. Gang Expert Testimony
              Long Beach Police Detective Sean Magee testified as the prosecution’s
gang expert. Magee stated the Rollin 20’s gang was formed between 1978 and 1981.
The gang claims an area of east Long Beach as its territory. The members identify with
the colors black and yellow or gold, and often wear clothing with the Pittsburgh Steelers
or Pirates logo.
              As of March 17, 2006, the gang had up to 500 active members, and their
primary activities were the commission of murders, robberies, assaults with deadly
weapons, and the illegal distribution of narcotics. Magee testified about two crimes
committed by other Rollin 20’s members, Anthony Wayne Clarke and Tracy Vaughn
Paul. Clarke committed murder and attempted murder in December 2005, and Paul had
been convicted of murder, possession of a firearm by a felon, and street terrorism for a
separate incident in December 2005.
              In Magee’s expert opinion, Brown, Reynolds, Simon, Valerio, Hill, and
Kelly were active participants in the Rollin 20’s on March 17, 2006, and the instant
crimes were committed for the benefit of, at the direction of, or in association with the
gang.
                                      DISCUSSION
1. Sufficiency of the Evidence
              a. Introduction
              Defendants challenge the sufficiency of the evidence to prove both special-
circumstance findings. For the gang-related murder special circumstances, defendants
assert the prosecution failed to prove they had the intent to kill Jones as required under

                                              8
Penal Code, section 190.2, subdivision (a)(22)3 (enhanced penalty for defendant who
intentionally kills while an active participant in a criminal street gang and to further the
activities of the gang). The Attorney General concedes the issue as to Valerio by
acknowledging the paucity of evidence Valerio, an admitted Rollin 20’s gang member
who actively participated in the robberies, had any role in the shooting. We agree with
this concession. However, we conclude substantial evidence supports the gang-related
murder special circumstance for Kelly, and the robbery-murder special circumstance for
both defendants.
               b. Standard of Review
               “In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th
978, 1053.)
               c. Felony-Murder Special-Circumstance Evidence
               Pointing to Tison v. Arizona (1987) 481 U.S. 137 (Tison), defendants assert
the evidence is insufficient to prove they were “‘major participants’” in the robberies, or
that they acted with “‘reckless indifference to human life.’” They assert the prosecution
failed to prove they either planned to kill Jones and Spencer, or that they actively
participated in a violent felony. We disagree.
               Tison, supra, 481 U.S. 137, concerned the requirements of the Eighth
Amendment to the United States Constitution for the felony-murder defendant who was


       3   All further statutory references are to the Penal Code.

                                               9
not the actual killer. The Supreme Court had previously addressed that issue in Enmund
v. Florida (1982) 458 U.S. 782 (Enmund).
              In Enmund, the defendant’s accomplices killed two people during an armed
robbery at a farmhouse, while the defendant waited nearby in the getaway car. The
defendant was convicted of first degree murder and sentenced to death. The United
States Supreme Court reversed, stating the death penalty may not be imposed for a
defendant “who aids and abets a felony in the course of which a murder is committed by
others but who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force will be employed.” (Enmund, supra, 458 U.S. at p. 797.) The court
stressed the importance of individual culpability under the Eighth Amendment, and then
concluded the non-killer defendant did not harbor the intent to kill, and therefore his
culpability could not be equated with that of the actual killers. (Enmund, at p. 798.)
              In Tison, the Supreme Court held the Eighth Amendment does not preclude
imposition of the death penalty on a defendant who neither killed nor intended to kill
during a felony murder, if the defendant was an active participant in the felony and acted
with reckless disregard for human life. (Tison, supra, 481 U.S. at p. 158.) The
defendants in Tison were eligible for the death penalty because they brought guns into a
prison to help their father, a convicted murderer, escape; they assisted their father and his
former cellmate in committing a carjacking that included kidnapping four victims; and
they stood nearby while their father and the cellmate killed the four victims.
              The Supreme Court summarized the case’s unusual and horrific facts,
concluding the defendants must have “subjectively appreciated that their acts were likely
to result in the taking of innocent life.” (Tison, supra, 481 U.S. at p. 152.) Tison
expressly held “that the reckless disregard for human life implicit in knowingly engaging
in criminal activities known to carry a grave risk of death represents a highly culpable
mental state, a mental state that may be taken into account in making a capital sentencing
judgment when that conduct causes its natural, though also not inevitable, lethal result.”

                                              10
(Id. at pp. 157-158.) In short, the Supreme Court found the defendants eligible for the
death penalty based on evidence of “major participation in the felony committed,
combined with reckless indifference to human life . . . .” (Id. at p. 158, fn. omitted.)
              Here, Hill and Washington testified Kelly actively participated in the
robberies. And, while Washington and Boyd did not see Kelly with a gun in the
restroom, Hill testified Kelly possessed and exhibited a nine-millimeter gun during the
robbery and shooting. Hill also testified Kelly fired the nine-millimeter in Jones’s
general direction during the gun battle. This act alone is sufficient to create a strong
inference of the intent to kill. (See People v. Smith (2005) 37 Cal.4th 733, 741; People v.
Lashley (1991) 1 Cal.App.4th 938, 945.) Washington identified Kelly and asked for
consideration, but Kelly denied knowing Washington and did nothing to stop his
confederates. This evidence also tends to prove Kelly was an active participant in the
robberies. Valerio, too, was an active participant in the robberies. He confronted Boyd
in the restroom stall, asked Boyd’s gang affiliation, and demanded Boyd turn over all his
possessions. Therefore, substantial evidence supports a finding Valerio and Kelly were
active participants in the robberies.
              In addition, the fact Kelly and Valerio participated in gang-related armed
robberies establishes their reckless indifference to human life. The “reckless
indifference” element can be proved solely by the circumstances of the current offense.
(See People v. Bustos (1994) 23 Cal.App.4th 1747, 1754-1755 [defendant knew
accomplice had a knife, defendant saw accomplice stab victim without trying to intervene
and then fled with co-perpetrators and robbery loot, leaving victim to die]; People v.
Mora (1995) 39 Cal.App.4th 607, 617 [defendant who helped plan armed robbery at drug
dealer’s house “had to be aware of the risk of resistance to such an armed invasion of the
home and the extreme likelihood death could result”]; People v. Hodgson (2003) 111
Cal.App.4th 566, 580 [defendant “had to be aware use of a gun to effect the robbery
presented a grave risk of death,” but “instead of coming to the victim’s aid after the first

                                             11
shot, he instead chose to assist [actual killer] in accomplishing the robbery”].) The
robbery and shooting demonstrate a cold indifference to other people’s lives and
property. Consequently, we conclude substantial evidence supports the jury’s finding on
the felony-murder special circumstance as to both Kelly and Valerio.
              d. Gang-Related Murder Special-Circumstance Evidence
              Defendants also challenge the sufficiency of the evidence to prove the
criminal street gang special circumstance finding (§ 190.2, subd. (a)(22)). In order to
sustain a true finding, the prosecution must prove beyond a reasonable doubt defendants,
while active participants in a criminal street gang, either committed or aided and abetted
another person to commit murder in the first degree, with the intent to kill and to further
the activities of his gang. (People v. Mejia (2012) 211 Cal.App.4th 586, 611.) As noted,
the Attorney General concedes the issue as to Valerio. Thus, the gang-related murder
special-circumstance finding must be reversed as to him.
              With Kelly, however, Hill testified Kelly and Reynolds fired shots in
Jones’s general direction. As noted, the act of firing a gun at someone else establishes a
strong presumption the defendant has the intent to kill. (See People v. Smith, supra, 37
Cal.4th at p. 741; People v. Lashley, supra, 1 Cal.App.4th at p. 945.)
              Other evidence supports this presumption. Magee and Hill testified Kelly
was an active Rollin 20’s gang member. In addition, Magee testified the primary
activities of Rollin 20’s included the commission of murder and attempted murder. From
this evidence a reasonable inference can be made that Kelly and his fellow gang members
committed robbery, murder, and attempted murder with the intent to further their gang’s
criminal activities. In sum, substantial evidence supports the jury’s true finding on the
gang-related murder special circumstance as to Kelly.
2. Jury Instructions
              Defendants claim the trial court had a duty to give CALCRIM No. 240, an
instruction on causation, because Spencer’s actions constitute an intervening cause of

                                             12
Jones’s death, which cuts off all liability for the crime. They also claim the trial court
erred by not giving self-defense instructions, by improperly giving an instruction to
ignore Hill’s custody status and restraints and an instruction on motive as it applies to the
street terrorism charge, and by failing to modify the instruction on the gang-related
murder special circumstance. None of these contentions has merit.
              a. General Principles
              A trial court must instruct on “general principles of law that are commonly
or closely and openly connected to the facts before the court and that are necessary for
the jury’s understanding of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th
1027, 1047.) In addition, the trial court must instruct upon “every theory of the case
supported by substantial evidence, including defenses that are not inconsistent with the
defendant’s theory of the case. [Citations.]” (Ibid.)
              On appeal, “[w]e determine whether a jury instruction correctly states the
law under the independent or de novo standard of review. [Citation.] Review of the
adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on
the applicable law.’ [Citation.] ‘“In determining whether error has been committed in
giving or not giving jury instructions, we must consider the instructions as a
whole . . . [and] assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” [Citation.]’
[Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment
rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]”
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) “An appellate court can address
an incorrect instruction to which no objection was made at trial if the instruction impaired
the defendant’s substantial rights. [Citation.]” (People v. Fuentes (2009) 171
Cal.App.4th 1133, 1138-1139 (Fuentes).)




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              b. Causation Instruction
              Defendants argue Spencer’s allegedly unlawful intervention in the robbery
constitutes an independent intervening cause of Jones’s death that cuts off liability for
Jones’s murder. They contend Spencer’s intervention triggered the court’s sua sponte
duty to instruct the jury with CALCRIM No. 240 on causation. We disagree.
              In People v. Cervantes (2001) 26 Cal.4th 860 (Cervantes), the California
Supreme Court had occasion to discuss causation in the context of a provocative act
murder prosecution. (Id. at p. 866.) The court stated, “‘In general, an “independent”
intervening cause will absolve a defendant of criminal liability. [Citation.] However, in
order to be “independent” the intervening cause must be “unforeseeable . . . an
extraordinary and abnormal occurrence, which rises to the level of an exonerating,
superseding cause.” [Citation.] On the other hand, a “dependent” intervening cause will
not relieve the defendant of criminal liability. “A defendant may be criminally liable for
a result directly caused by his act even if there is another contributing cause. If an
intervening cause is a normal and reasonably foreseeable result of defendant’s original
act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve
defendant of liability. [Citation.] ‘[ ] The consequence need not have been a strong
probability; a possible consequence which might reasonably have been contemplated is
enough. [ ] The precise consequence need not have been foreseen; it is enough that the
defendant should have foreseen the possibility of some harm of the kind which might
result from his act.’ [Citation.]” [Citation.]’ [Citations.]” (Id. at p. 871.)
              In Cervantes, members of different gangs attended the same party. The
defendant, a member of the Highland Street gang, shot a member of the Alley Boys gang
(Linares) in the arm and chest during a scuffle over a perceived slight to a woman
associated with the Alley Boys. (Cervantes, supra, 26 Cal.4th at pp. 863-864.) A melee
erupted with several participants yelling gang challenges. (Ibid.) A short time later, a
group of Alley boys spotted a lone Highland Street gang member (Cabrera) and fired

                                              14
several shots, killing him. (Id. at p. 864.) At trial on charges he killed Cabrera, the
defendant testified he did not intend to shoot anyone, and that he was driving away from
the party when he heard several shots being fired. (Ibid.)
              The California Supreme Court reversed the defendant’s conviction,
observing, “Defendant was not the initial aggressor in the incident that gave rise to the
provocative act. There was no direct evidence that Cabrera’s unidentified murderers
were even present at the scene of the provocative act, i.e., in a position to actually witness
defendant shoot Linares. Defendant himself was not present at the scene where Cabrera
was fatally gunned down; the only evidence introduced on the point suggests he was
already running away from the party or speeding off in his car when the victim was
murdered.” (Cervantes, supra, 26 Cal.4th at p. 872, fns. omitted.) The court observed,
Cabrera’s murderers “‘intend[ed] to exploit the situation created by [defendant], but
[were] not acting in concert with him,’ a circumstance that is ‘normally held to relieve the
first actor [defendant] of criminal responsibility.’ [Citations.]” (Id. at p. 874.)
              Here, unlike Cervantes, Spencer took it upon himself to protect his friends
during the course of a robbery, but there is no evidence he sought to exploit the situation
caused by Kelly, Valerio, and their fellow gang members. In our view, Spencer stands in
the shoes of a victim of the robbery or a responding police officer, and should not be
considered an intervening or superseding cause cutting off Kelly or Valerio’s liability for
Jones’s death. (See Cervantes, supra, 26 Cal.4th at p. 868; see also People v. Gilbert
(1965) 63 Cal.2d 690, 704-705 [police officer kills accomplice] reversed on grounds not
relevant here sub nom. Gilbert v. California (1967) 388 U.S. 263.)
              Under established principles of causation, “[t]he defendant remains
criminally liable if either the possible consequence might reasonably have been
contemplated or the defendant should have foreseen the possibility of harm of the kind
that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.)
A shooting death during a gang-related armed robbery like this is a reasonably

                                              15
foreseeable risk, not an extraordinary or abnormal occurrence. By way of contrast, if an
airplane had fallen from the sky and killed Jones, defendants’ argument would have
merit. But here we see no reason for absolution simply because the victim’s friend
intervened as opposed to one of the victims himself or a responding peace officer.
              The evidence shows defendants participated in two armed robberies in
which more than one perpetrator possessed a gun. The crimes took place in a busy
restaurant. Although a bystander’s violent intervention was not inevitable, Spencer’s
involvement in the robbery is hardly the type of occurrence so remote and unusual that it
would cut off the criminal liability of one of the robbery participants. “[I]t is impossible
to see how it could reasonably be concluded that the death[] of [Jones] in such
circumstances could have been an unnatural or improbable consequence of appellants’
admitted acts.” (People v. Anderson (1991) 233 Cal.App.3d 1646, 1662.)
              Defendants further argue Spencer’s acts were not legally justifiable, and
thus they cannot be liable for the robbers’ reaction to Spencer’s independent, illegal, and
lethal conduct. They have cited no authority for the proposition an intervening act cuts
off liability unless the intervening act is both foreseeable and legally justifiable.
Furthermore, we are not prepared to find that his acts fall outside of section 197’s
provision for justifiable homicide when the life of another is threatened, or as a justified
act to apprehend those who had just robbed his friend. (See § 197, subds. (1), (4).)
              Finally, as Kelly and Valerio concede, the court gave CALCRIM No.
540B, which required the jury to find, among other things, a “logical connection”
between the cause of Jones’s death and the robbery, and that the connection between the
robbery and murder was more than just their occurrence at the same “time and place.”
(See People v. Cavitt (2004) 33 Cal.4th 187, 201 [to satisfy the “complicity aspect” of the
felony-murder rule, a nonkiller is responsible for a homicide committed by a cofelon
when there is “a logical nexus, beyond mere coincidence of time and place, between the
felony the parties were committing or attempting to commit and the act resulting in

                                              16
death”].) And, as the Attorney General notes, the trial court also gave CALCRIM Nos.
549 and 730, which informed the jury defendants could be convicted of felony murder
only if it determined the act causing Jones’s death and the robberies were part of one
continuous transaction. Thus, there was no sua sponte obligation to instruct the jury with
CALCRIM No. 240 on causation.
              c. Self-defense Instruction
              Defendants argue the trial court erred by not instructing the jury on self-
defense as it relates to counts 1 and 2. They claim substantial evidence supported giving
a self-defense instruction based on Spencer’s intervention in robbery. We are not
persuaded.
              In general, no claim of self-defense, reasonable or unreasonable, may be
made in murder prosecutions based on the felony-murder rule. (People v. Dillon (1983)
34 Cal.3d 441, 475-476.) This is because malice is eliminated as an element in such
cases. (People v. Robertson (2004) 34 Cal.4th 156, 164-165, overruled on other grounds
in People v. Chun (2009) 45 Cal.4th 1172, 1201.) “The purpose of the felony-murder
rule is to deter even accidental killings in the commission of designated felonies by
holding the felon strictly liable for murder. [Citation.] When a burglar kills in the
commission of a burglary, he cannot claim self-defense, for this would be fundamentally
inconsistent with the very purpose of the felony-murder rule. [Citations.]” (People v.
Loustaunau (1986)181 Cal.App.3d 163, 170.)
              Defendants acknowledge the general rule, but claim Spencer’s intervention
and use of deadly force produces a different result here. They admit “the factual
scenarios under which ordinary or reasonable self-defense would apply to a killing that
occurs in the course of a felony are extremely rare,” but argue Spencer’s intervention
created just such a rare circumstance. They cite no legal authority for this proposition,
nor do they cite a single case that chips away at the general rule. Failure to cite any
relevant authority in support of an assertion results in a waiver of the right to appellate

                                              17
review of that assertion. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Diaz
(1983) 140 Cal.App.3d 813, 824.)
              Furthermore, as discussed above, Spencer’s intervention does not cutoff
defendants’ liability for the crimes. We have concluded Spencer’s action, although
unusual, was a reasonably foreseeable risk of an armed robbery and not an extraordinary
or abnormal occurrence. Similarly, Spencer’s intervention did not create a situation
where defendants could claim self-defense in shooting Jones or Spencer. Consequently,
the trial court was under no duty to give a self-defense instruction at this trial.
              d. Custody Status and Restraint Instruction
              Defendants claim the trial court erred and “undercut the defense” by
instructing the jury with CALCRIM No. 337. This instruction told the jury to
“completely disregard” the fact Hill was restrained and in custody when he testified.
Defendants believe CALCRIM No. 337 precluded the jury from properly assessing Hill’s
credibility. Not so.
              As noted, we do not judge instructions in isolation. Rather, we review a
claim of instructional error in the context of the whole charge to the jury. (Fuentes,
supra, 171 Cal.App.4th at pp. 1138-1139.) Here, the trial court instructed the jury with
CALCRIM No. 226. That instruction states the jury alone judges credibility, and it
explains that when deciding credibility, the jury is permitted to consider a whole host of
factors. The trial court also gave CALCRIM No. 335, which explained how to evaluate
accomplice testimony and specifically told the jury Hill was an accomplice. And, the
trial court gave CALCRIM No. 316, which permits the jury to consider prior felony
convictions when determining credibility. When considered together, the instructions on
witness credibility were legally accurate and factually applicable, including CALCRIM
No. 337. Thus, it is not reasonably likely the jury applied CALCRIM No. 337 in a way
that prevented the consideration of constitutionally relevant evidence. (Boyde v.
California (1990) 494 U.S. 370, 380-381.)

                                              18
              e. Motive and Street Terrorism Instruction
              Defendants also contend the trial court erred by giving CALCRIM No. 370,
which advises the jury, “The People are not required to prove that the defendant had a
motive to commit any of the crimes charged.” They contend CALCRIM No. 370 as
applied to the crime of street terrorism amounts to instructing the jury the prosecution
need not prove defendants’ intent. Again we disagree.
              In Fuentes, supra, 171 Cal.App.4th at pages 1139-1140, the appellate court
rejected the defendants’ objection to CALCRIM No. 370 as it relates to street terrorism:
“An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is
any other specific intent. We do not call a premeditated murderer’s intent to kill a
‘motive,’ though his action is motivated by a desire to cause the victim’s death.
Combined, the instructions here told the jury the prosecution must prove that Fuentes
intended to further gang activity but need not show what motivated his wish to do so.
This was not ambiguous and there is no reason to think the jury could not understand it.”
              Defendants claim Fuentes is flawed because the appellate court did not
discuss and apply cases discussing motive in the context of the financial gain special
circumstance. However, none of the cases cited by defendants are on point, and the
Supreme Court has held the terms “intent” and “motive” are not interchangeable. (See,
e.g., People v. Carasi (2008) 44 Cal.4th 1263, 1308-1309; People v. Staten (2000) 24
Cal.4th 434, 461; People v. Edelbacher (1989) 47 Cal.3d 983, 1026-1027.) In
defendants’ view, the motive to gain financially from a murder is no different from an
intent to do so. The problem with defendants’ analogy is that the Supreme Court
repeatedly has rejected it. (Edelbacher, at p. 1027; People v. Riggs (2008) 44 Cal.4th
248, 314; People v. Crew (2003) 31 Cal.4th 822, 845; People v. Noguera (1992) 4
Cal.4th 599, 637.)
              As the Fuentes court has explained: “If Fuentes’s argument has a
superficial attractiveness, it is because of the commonsense concept of a motive. Any

                                            19
reason for doing something can rightly be called a motive in common language,
including—but not limited to—reasons that stand behind other reasons. For example, we
could say that when A shot B, A was motivated by a wish to kill B, which in turn was
motivated by a desire to receive an inheritance, which in turn was motivated by a plan to
pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor.
That is why there is some plausibility in saying the intent to further gang activity is a
motive for committing a murder: A wish to kill the victim was a reason for the shooting,
and a wish to further gang activity stood behind that reason. The jury instructions given
here, however, were well adapted to cope with the situation. By listing the various
‘intents’ the prosecution was required to prove (the intent to kill, the intent to further
gang activity), while also saying the prosecution did not have to prove a motive, the
instructions told the jury where to cut off the chain of reasons. This was done without
saying anything that would confuse a reasonable juror.” (Fuentes, supra, 171
Cal.App.4th at p. 1140.)
              In short, motive describes the reason a person decides to commit a crime.
The reason for doing something, however, is different from the required mental state for
criminal liability. (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504.) The jury was
instructed here pursuant to CALCRIM No. 1400 on the elements of street terrorism. This
instruction stated the crime required the jury to find defendants were active participants
in Rollin 20’s, that they participated in the gang knowing other members of the gang
engaged in criminal activity, and that defendants “willfully assisted, furthered, or
promoted felonious criminal conduct by members of the gang.” The trial court’s street
terrorism instruction did not use the word “motive” and there is no indication the jury
would have understood the terms “motive” and “intent” to be interchangeable. Just as in
Fuentes, there was no error here.




                                              20
              f. Gang-Related Murder Special-Circumstance Instruction
              Defendants claim the trial court’s instruction on accomplice liability as to
the gang-related murder special circumstances did not specify the prosecution’s burden of
proving they had the intent to kill. The Attorney General asserts defendants forfeited this
challenge to the jury instructions because it is the defendants’ duty to request
modification of the instructions, citing People v. Guiuan (1998) 18 Cal.4th 558.
However, the Attorney General also concedes the evidence is insufficient to support the
jury’s gang-related murder special-circumstance finding on Valerio. We address the
issue on the merits, but find Kelly’s argument unavailing.
              Section 190.2, subdivision (a)(22) provides for a sentence of death or life
without the possibility of parole for first degree murder when “[t]he defendant
intentionally killed the victim while the defendant was an active participant in a criminal
street gang . . . and the murder was carried out to further the activities of the criminal
street gang.” Subdivision (c) extends liability for first degree murder to “[e]very person,
not the actual killer, who, with the intent to kill, aids, abets, counsels, commands,
induces, solicits, requests, or assists any actor in the commission of murder in the first
degree . . . .” (See also People v. Mejia, supra, 211 Cal.App.4th at p. 611.)
              The trial court gave CALCRIM No. 736, which told the jury the
prosecution had to prove beyond a reasonable doubt “defendant intentionally killed
Armond Jones” with respect to the gang murder special circumstance. The same
language is in the verdict form. Kelly assumes the jury would disregard the language of
the instruction and verdict form to find him guilty without necessarily concluding he had
the intent to kill Jones. Nothing in the record supports this assumption, and it seems
unlikely the jury interpreted the instruction in the way Kelly believes. As the Attorney
General notes, the trial court properly instructed the jury on aiding and abetting and
coconspirator liability. Viewing the instructions as a whole, we conclude there is no
reasonable probability the jury misunderstood the instruction on accomplice liability as to

                                              21
the gang-related murder special circumstances to permit a true finding without finding
Kelly had the required intent to kill. (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
3. New Trial Motions
              a. Introduction
              Defendants challenge the trial court’s denial of their motion for new trial
based on newly discovered evidence. (§ 1181, subd. (8).)4 Defendants contend the trial
court’s ruling violated their due process right to a fundamentally fair trial under the Fifth
and Fourteenth Amendments of the United States Constitution and article I of the
California Constitution.
              b. Legal Principles
              “In ruling on a motion for new trial based on newly discovered evidence,
the trial court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.”’
[Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328; see also People v. Soojian
(2010) 190 Cal.App.4th 491, 512.)
              “‘“The determination of a motion for a new trial rests so completely within
the court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining
whether there has been a proper exercise of discretion on such motion, each case must be
judged from its own factual background.’” [Citation].” (People v. Delgado, supra, 5

       4 “When a verdict has been rendered or a finding made against the defendant, the
court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶]
(8) When new evidence is discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the trial . . . .” (§ 1181, subd.
(8).)

                                              22
Cal.4th at p. 328.) A new trial motion based on newly discovered evidence is looked
upon with disfavor. We will only disturb a trial court’s denial of such a motion if there is
a clear showing of a manifest and unmistakable abuse of discretion. (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1251-1252; Delgado, supra, 5 Cal.4th at p. 328.)
              c. Factual Background
              After the prosecutor made her closing argument, Kelly’s attorney told the
court he had just learned about a witness who would testify Kelly never carried a gun and
that Hill had a reputation for always carrying a nine-millimeter handgun. According to
counsel, Omar Houston, one of Kelly’s best friends, had only recently come forward with
this information. Defense counsel moved to reopen his case, but the trial court found the
request untimely and denied the motion.
              In July 2012, Kelly filed a new trial motion and Valerio orally joined in it.
Kelly alleged two new witnesses had recently come forward, Shamarra Frazier, Hill’s
former girlfriend, and Valerio’s sister, Shawndrika Brown. Kelly claimed Houston had
called Kelly’s parents and told them Frazier wanted to come forward and testify Hill
always carried a nine-millimeter handgun. Frazier also claimed to have seen bullet holes
in the side of Hill’s Camaro and shell casings on the floor of his car the day after the
shooting.
              Shawndrika Brown also let it be known she was now “prepared to talk
about what she saw at Denny’s.” Apparently, Houston, Frazier and Shawndrika Brown
thought Hill got too good a deal and justice had not been served.
              Kelly asserted Hill’s testimony alone placed a gun in his hands, and
Houston, Shawndrika Brown, and Frazier’s statements had considerable impeachment
value with respect to Hill’s testimony. The trial court disagreed.
              In denying defendants’ new trial motion, the trial court stated, “So as I
assess the new evidence, I cannot find that it is new evidence truly in that the witnesses
were known. I expressed my reservation. And again, I’m not suggesting counsel didn’t

                                             23
do what they needed to do. [Valerio’s counsel] said he spoke to the one witness himself
twice and she wasn’t interested in cooperating even though her brother was on trial. And
suddenly after trial, after conviction, after four trials, in fact, and five convictions, she
crawls out of the woodwork with some new information. [¶] . . . [¶] So I don’t think any
of this new evidence is truly new evidence in the sense that the law considers new
evidence . . . although I do believe it’s material, I think it’s largely cumulative for the
reasons I’ve now expressed several times.”
               Having considered the record as a whole, we agree with the trial court.
Houston, Frazier and Shawndrika Brown had close ties to defendants, and defendants
knew their whereabouts many years before trial began. Thus, Houston, Shawndrika
Brown and Frazier were not newly discovered witnesses.
               Moreover, their testimony was cumulative of other challenges to Hill’s
credibility, including his impeachment with a prior felony conviction, which the defense
properly exploited at trial. (People v. Delgado, supra, 5 Cal.4th at p. 329 [“‘the trial
court may consider the credibility as well as materiality of the evidence in its
determination [of] whether introduction of the evidence in a new trial would render a
different result reasonably probable’”].) Furthermore, the jury instructions identified Hill
as an accomplice to the crimes, and the trial court gave special instructions to the jury
about the special dilemma accomplice testimony presents.
               Finally, even if Houston, Frazier, and Shawndrika Brown’s testimony could
be considered “new evidence” for purposes of section 1181, subdivision (8), defendants
have nonetheless failed to demonstrate there is a reasonable probability their testimony
would have led to a different result. Under these circumstances, the trial court acted well
within the scope of its broad discretion in finding the proffered evidence was not new and
was cumulative of other evidence. (See People v. Delgado, supra, 5 Cal.4th at p. 328.)
Accordingly, the trial court’s decision to deny defendants’ new trial motion must be
affirmed.

                                               24
4. Cumulative Error
               Defendants contend a combination of errors rendered their trial
fundamentally unfair. We have individually considered each claim of error in this four-
week trial, which generated over 1,600 pages of reporter’s transcript. The few errors that
occurred were harmless under any standard, whether considered individually or
collectively. We find no deprivation of rights guaranteed under either the state or federal
Constitutions. Defendants were “entitled to a fair trial, not a perfect one. [Citation.]”
(People v. Box (2000) 23 Cal.4th 1153, 1214, overruled on other grounds in People v.
Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) They received a fair trial.
5. Sentencing
               a. Eighth Amendment Claim
               At sentencing, the trial court expressed an interest in reducing Valerio’s
LWOP sentence. However, the trial court felt constrained by section 1385.1’s
prohibition against striking “any special circumstance which is . . . found by a jury.” (See
also People v. Mendoza (2011) 52 Cal.4th 1056, 1075.) In musing about the situation,
the trial court indicated a willingness to take “additional evidence, even testimony,
concerning the propriety of me possibly giving [Valerio] a sentence other than life
without possibility of parole . . . .”
               Valerio did not assert an Eighth Amendment claim below, but raises it now.
The Attorney General claims we need not remand for a new sentencing hearing because
an application of constitutional principles outlined in People v. Dillon, supra, 34 Cal.3d
at page 479 would yield no different result. We disagree.
               The court had access to the probation report, which mentioned Valerio’s
relative youth at the time of the crime (19 years old), minimal criminal record, and
comparatively minor role in the robberies suggested leniency could be appropriate in his
case. The court was familiar with the facts of the case, which demonstrated Valerio’s
nonleadership role in the crimes and proved he neither personally possessed nor used a

                                             25
firearm. The trial court also stated if the matter is remanded for a new sentencing hearing
there were other facts the court would be willing to consider. We agree these facts could
be important to the resolution of the constitutional claim. Therefore, we remand for a
new sentencing hearing to allow the trial court to consider the constitutionality of
Valerio’s sentence and exercise its sentencing discretion in the first instance.
              b. Other Sentencing Errors
              The parties agree the trial court made certain sentencing errors and the
judgments must be modified. With respect to Kelly, the sentence is modified as follows:
(1) count 5 is stayed under section 654 because the murder, attempted murder and
robberies were the basis for the felonious criminal conduct promoted, assisted or
furthered by Kelly (People v. Mesa (2012) 54 Cal.4th 191, 197-198); (2) only one LWOP
term may be imposed on count 1 (§ 190.2, subd. (a)); and, (3) only one section 12022.53
enhancement penalty may be imposed on counts 1 and 2 (§ 12022.53, subd. (f)). As
modified, Kelly’s judgment is affirmed.
              For Valerio, while the gang-related murder special circumstance is stricken
for insufficiency of the evidence, all other convictions and findings are affirmed.
Because his sentence is being reversed and the matter remanded, his sentence may be
modified to meet constitutional muster. If not, the sentence must be modified as follows:
(1) count 5 must be stayed under section 654 because the murder, attempted murder and
robberies were the basis for the felonious criminal conduct promoted, assisted or
furthered by Valerio (People v. Mesa, supra, 54 Cal.4th at pp. 197-198); (2) only one
LWOP term may be imposed on count 1 (§ 190.2, subd. (a)); (3) only one section
12022.53 enhancement penalty may be imposed on counts 1 and 2 (§ 12022.53, subd.
(f)); and, (4) the sentence enhancements under section 186.22, subd. (b) must be stayed
because there is no evidence Valerio personally used or discharged a firearm (People v.
Valenzuela (2011) 199 Cal.App.4th 1214, 1238).



                                             26
                                      DISPOSITION
              With respect to Valerio, the gang-related murder special circumstance is
reversed. As modified, Valerio’s judgment of conviction is affirmed, the sentence is
reversed, and the matter remanded for a new sentencing hearing to permit the trial court
to consider the constitutionality of Valerio’s sentence. If Valerio’s sentence is not
otherwise modified following that sentencing hearing, then the current sentence shall be
modified as noted above and the abstract of judgment shall be corrected.
              For Kelly, the sentence is modified as set for above. As modified, the
judgment against Kelly is affirmed.
              The clerk of the superior court is directed to correct the abstracts of
judgment and forward copies to the Department of Corrections and Rehabilitation.




                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




                                             27
