Filed 8/20/14 P. v. Baeza CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B245457

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA111293)
         v.

NOE BAEZA et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County, Dewey
Lawes Falcone, Judge. Noe Baeza’s judgment is remanded in part for resentencing and is
otherwise affirmed as modified. Robert Benavidez’s judgment is remanded in part for
further proceedings and is otherwise affirmed as modified.
         Cannon & Harris, Donna L. Harris, under appointment by the Court of Appeal, for
Defendant and Appellant Noe Baeza.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant Robert Benavidez.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for
Plaintiff and Respondent.
                                     INTRODUCTION
       Defendants and appellants Noe Baeza and Robert Benavidez were tried together
before separate juries.1 The respective juries found Baeza and Benavidez guilty of first
degree murder (Pen. Code, § 187, subd. (a)2), kidnapping (§ 207, subd. (a)), first degree
burglary (§ 459), and being a felon in possession of a firearm (former § 12021, subd.
(a)(1), now § 29800, subd. (a)(1)). As to the murder, the juries found true the allegation
that Baeza and Benavidez committed the murder while engaged in the crimes of burglary
or kidnapping (§ 190.2, subd. (a)(17)); as to the murder and kidnapping, the juries found
true the allegations that a principal personally used and intentionally discharged a firearm
causing great bodily injury and death (§ 12022.53, subds. (b)-(d) & (e)(1)); and as to each
of the offenses, the juries found true the allegations that the offenses were committed for
the benefit of, at the direction of, or in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct by gang members (§
186.22, subds. (b)(1)(A)-(C)3) (gang enhancements). Benavidez admitted that he
suffered four prior convictions—the information alleged the four prior convictions in
support of the being a felon in possession of a firearm charge and as prior convictions
within the meaning of section 667.5, subdivision (b). The trial court sentenced Baeza and
Benavidez to state prison for life without the possibility of parole plus 55 years to life.
Respondent argues that the trial court “neglected” to impose on Benavidez a mandatory




1      Defendant Estevan Lepe also was tried before Baeza’s jury. Lepe is not a party to
this appeal.

2      All statutory citations are to the Penal Code unless otherwise noted.

3      Section 186.22, subdivision (b)(1)(C) as to the murder and kidnapping
convictions, subdivision (b)(1)(B) as to the burglary conviction, and subdivision
(b)(1)(A) as to the being a felon in possession of a firearm conviction.


                                              2
consecutive 12 year term for his prior convictions under section 667.5, subdivisions (a)
and (c).4
       On appeal, Baeza contends that the trial court erred in denying his request to
instruct his jury on the defense of necessity; insufficient evidence supports the special
circumstance allegation that he committed the murder while engaged in the crimes of
burglary or kidnapping; pursuant to section 654, the trial court should have stayed
imposition of sentence on his kidnapping, first degree burglary, and being a felon in
possession of a firearm offenses; and his abstract of judgment must be modified to strike
the parole revocation restitution fine. Benavidez contends that the trial court erroneously
instructed his jury on the burglary or kidnapping special circumstance; prejudicial
material erroneously was not redacted from the transcript of his post-arrest recorded
statement; insufficient evidence supports the gang enhancement; imposition of the section
12022.53, subdivision (d) 25 years to life enhancement for a defendant convicted of
murder violates California’s “‘multiple conviction rule’ based on included conduct” and
federal double jeopardy principles; federal double jeopardy principles should apply to
multiple punishments within a unitary trial and not to successive prosecutions only;
pursuant to section 654, the trial court should have stayed imposition of sentence on his
kidnapping offense; and the trial court erred in imposing a parole revocation restitution
fine. Baeza joins Benavidez’s arguments to the extent that they benefit him. Benavidez
joins Baeza’s argument that the imposition of a consecutive sentence on the kidnapping
conviction violated section 654.
       We order Baeza’s abstract of judgment modified to reflect a stay of imposition of
sentence under section 654 on his burglary and kidnapping convictions. We remand his
case to the trial court for resentencing on his being a felon in possession of a firearm
conviction. We order Benavidez’s abstract of judgment modified to reflect a stay of
imposition of sentence under section 654 on his burglary, kidnapping, and being a felon
in possession of a firearm convictions and to strike the $1,000 parole revocation

4      Benavidez’s enhancements were charged under section 667.5, subdivision (b) and
not section 667.5, subdivisions (a) and (c).

                                              3
restitution fine. We order Benavidez’s case remanded for further proceedings, as set
forth below, in connection with the prior conviction allegations under section 667.5,
subdivision (b). We otherwise affirm the judgments.


                                    BACKGROUND
I.    Evidence Presented to Both Juries
      Arturo Alvarez was a member of the 38th Street gang. Alvarez, his wife Erica
Castro, their two children, and Alvarez’s parents lived in a house on Kauffman Avenue in
South Gate.
      About 12:30 or 12:50 a.m. on July 7, 2009, Alvarez, Castro, and their children
were asleep in the living room. Alvarez’s parents were asleep in a bedroom. Alvarez,
Castro, and their children were awakened by banging outside the front door. Someone
said, “FBI. Open the door.” Alvarez, Castro, their children, and Alvarez’s mother went
to one of the bedrooms.
      Castro heard two gunshots. Two men dressed in black and wearing masks entered
the bedroom. The men were armed with “long,” “rifle-type” weapons. One or both of
the men issued an order to “[g]et on the floor.” A third man entered the room. One of
the men told Alvarez’s mother that her son was a “fugitive of the law.” One of the men
picked up Alvarez from the floor. Alvarez’s hands were secured behind his back and the
men took Alvarez out of the bedroom. As they were leaving, one of the men said into a
radio or phone, “We got suspect.”
      About five seconds later, Castro left the bedroom to determine what was
happening. She did not see anything in the living room, and went out the front door. She
did not see Alvarez. The police arrived within seconds.
      Rudy Dominguez lived on Kauffman Avenue about a third of a block from
Michigan Avenue. About 12:50 a.m., on July 7, 2009, Dominguez was awakened by a
banging noise. He heard two gunshots and went outside. He looked in the direction of
Michigan Avenue and saw a man run from the house on the corner of Michigan and
Kauffman Avenues and get into a tan van. The man drove the van to the corner and

                                            4
parked on Michigan Avenue. He then ran back into the house on the corner. Three
persons ran out of the house and got into the van. The van drove on Michigan Avenue
toward Atlantic Avenue and the 710 Freeway.
       About 12:50 a.m. on July 7, 2009, South Gate Police Department Officer Robert
Pellerin was in his police car near the intersection of Atlantic and Michigan Avenues
when he received a call of shots fired on Kauffman Avenue. The call included a
description of a tan van. Immediately after receiving the call, Officer Pellerin saw a van
that matched the vehicle described in the call. Officer Pellerin followed the van onto the
710 Freeway. He pulled up next to the van and shined his spotlight through the driver’s
window. Lepe was driving the van. The van transitioned onto other freeways before
exiting on Rosecrans Boulevard. At some point, the van reached the intersection of
Broadway and 124 Street where it slowed and a man jumped out and ran.
       Officer Pellerin activated his emergency lights and siren, but the van did not stop.
Instead, the van accelerated. The van slowed again when it reached the intersection of
Spring and 123rd Streets. A second man jumped out of the van. Los Angeles County
Sheriff’s Department Deputy Darell Edwards responded to a report that a kidnapping
suspect had fled from a vehicle and had run to an area on 121st Street between Bremerton
and Spring Streets. A Sheriff’s Department’s airship advised Deputy Edwards and other
responding deputies that the suspect was hiding behind the porch of a residence on West
121st Street. There, Deputy Edwards took the suspect, whom he identified as Benavidez,
into custody.
       When the van reached the intersection of 55th Street and Figueroa, the van slowed
and Baeza jumped out. Baeza surrendered to California Highway Patrol Officer Eric
Beltran and his partner.
       At the intersection of Hoover and 55th Streets, a California Highway Patrol unit
employed a “pursuit-ending” measure called a “pit maneuver” to stop the van. The van’s
driver got out and ran. He entered the back door of a house on 55th Street.
Sheriff’s Department deputies ordered out the occupants of the house. Lepe and other
persons, who appeared to be members of his family, came out of the house.

                                             5
       Sheriff’s Department Deputy Louie Aguilera assisted in the investigation of
Alvarez’s kidnapping and murder. He found Alvarez in the back of the van. There was
duct tape wrapped around Alvarez’s face and head. His hands and feet were bound with
Ziploc flex cuffs. Blood spatter on the inside of the rear hatch indicated that Alvarez had
been killed inside the van. Deputy Aguilera found in the van a 9 millimeter shell casing;
various firearms, including four handguns, one shotgun, and one rifle; and ammunition.
He also found in the van five flak vests, gloves, and two ski masks. Sheriff’s Department
deputies examined Alvarez’s house. On the front porch, they found two 12 gauge
shotgun shell casings.
       Deputy Medical Examiner Dr. Kevin Young performed the autopsy on Alvarez’s
body. He testified that Alvarez suffered two gunshot wounds to his head. Each wound
was fatal. He recovered a “projectile” from Alvarez’s body associated with each gunshot
wound.
       Sheriff’s Department Deputy Dale Falicon testified for the prosecution as a
firearms expert. Deputy Falicon testified that a Smith and Wesson handgun found in the
van fired the 9 millimeter shell casing found in the van. That handgun also fired the
bullets that the coroner recovered from Alvarez’s body. Sheriff’s Department Criminalist
April Wong, also a prosecution firearms expert, testified that the two shotgun shells
found outside Alvarez’s house were fired from a shotgun found inside the van.
       Sheriff’s Department Criminalist Juli Watkins obtained a DNA profile from one of
the ski masks found in the van. That profile matched a DNA profile from Baeza. A
DNA profile from the grip on the Smith and Wesson handgun that fired the shell found in
the van and the bullets recovered from Alvarez’s body was a mixture of contributors.
Watkins was able to exclude Lepe and Baeza as possible contributors. She could neither
include nor exclude Benavidez as a contributor. Benavidez was a possible contributor to
a DNA profile from a second Smith and Wesson handgun.




                                             6
II.    Evidence Presented Only to Benavidez’s Jury
       About 11:25 a.m. on July 7, 2009, Sheriff’s Department Detective Wayne Holston
and his partner, Sergeant Steve Rubino, interviewed Benavidez. A recording of the
interview was played for the jury at trial. Benavidez’s jury was provided a transcript of
the interview to read while they listened to the recording.
       In the interview, Benavidez said he used to “run with” “213 Maywood,” and was
known as “Big Rob.”5 He was not then “with” 213 Maywood because he had children.
His parole agent’s name was “Jones.”
       Benavidez said that he was walking down the street about 11:00 p.m. or midnight
when a van pulled up and a man inside asked if he wanted to “get some money.” The
man said that he and others were going to “go into a house.” Although reluctant at first,
Benavidez got into the van. Inside were five or six men dressed in masks. There were
guns in the van.
       As they were driving, the men told Benavidez that there was “fifty thousand” in
the house that they would split. When they arrived at their destination, Benavidez, the
driver, and another man waited at the van while three men went to the house. Benavidez
heard banging on the door and two gunshots. The men broke down the door. Benavidez
wanted to run, but was afraid that he might be shot. Six or seven minutes later, the three
men returned with another man who was handcuffed with his hands behind his back.
       At some point, the driver said that the police were following them. After one of
the men jumped out of the van, Benavidez also jumped out. He ran and hid on a porch
where the police found him. Benavidez said that “they” did not shoot or stab Alvarez
while Benavidez was in the van. Benavidez denied killing anyone.
       Benavidez then admitted that he had been lying. He said that there were four other
men in the van and that he and the driver waited outside while the others entered the
house. His role was to watch out for the others. Benavidez denied that he knew any of


5      The recitation of Benavidez’s statement to Detective Holston and Sergeant Rubino
is taken from the transcript provided to the jury.

                                             7
the men in the van. He denied that he touched any of the guns. Benavidez opened the
door for the men when they returned to the van.
      Sergeant Rubino expressed doubt that Benavidez just happened to be walking
along when a van pulled up and its occupants asked Benavidez if he wanted to make
some money. Detective Holston asked Benavidez if he had any phone conversations with
the other men. Benavidez said the men gave him a “chirp” device which he somehow
called with his own phone. The men took back the chirp.
      Sergeant Rubino suggested that other suspects were in custody and would “talk”
and said that Benavidez needed to tell him what happened. Benavidez said he would tell
the truth. He said that about a week earlier, he saw a 38th Street gang member named
“Grumps” at a swap meet. He had been in “Chino” with Grumps before Grumps was
paroled. Grumps told Benavidez that he had some work for him. Benavidez understood
the work to be robbing Grumps’s “homeboy”—“they said it was money, not a guy.”
Benavidez was told that they would split “50 G’s.” Grumps gave Benavidez a phone
number to call. About 10:00 p.m., “they” called Benavidez and asked him if he was
ready. “They” picked him up near an El Pollo Loco restaurant. Benavidez said that
when he entered the van, “they” gave him gloves. “They” also gave him a handgun
which he “grabbed” with his gloves.
      At the house, Benavidez was given a sledgehammer which he used to strike the
door, but he could not open it. He said to his companions, “Let’s jam, let’s jam, fuck
that, let’s jam.” One of the men shot the door, and Benavidez’s two companions went
inside. Benavidez did not want to join them but did. Benavidez walked out when he
encountered two ladies and children. He also said he walked out when the other two men
brought out “the guy.” Benavidez denied that the two other men shot the kidnap victim
while Benavidez was in the van. Benavidez said that the person who had been kidnapped
did not say anything in the van when Benavidez was in it.




                                            8
III.   Gang Evidence
       A.     Evidence Presented to Both Juries
       Baeza was housed in the discipline module at the Twin Towers Correctional
Facility. Sheriff’s Department Custody Assistant Art Valenzuela worked at the Twin
Towers. Valenzuela performed a contraband search of personal property Baeza was
allowed to possess in jail and confiscated as contraband four pieces of paper that he
believed were gang-related.
       Apparently testifying about one of the pieces of paper confiscated from Baeza,
Custody Assistant Valenzuela testified that the paper was a “roll call.” A roll call was a
piece of paper typically passed around by Hispanic gang members. Among other things,
a gang member wrote his name and the gang to which he belonged on the roll call.
Baeza’s name was on the roll call, and he was identified as a member of the Southside
38th Street gang with the moniker “PWee.” If a person signed his name to the roll call
falsely identifying himself as a gang member there would be consequences.


       B.     Evidence Presented Only to Baeza’s Jury
       Los Angeles Police Department Officer Bryan Schilling testified as a gang expert
for the prosecution. He opined that Baeza was a member of the 38th Street gang.
Baeza’s monikers were “PWee” and “Magoo.”
       The prosecutor presented Officer Schilling with a set of hypothetical facts based
on the facts in this case. Officer Schilling opined that the burglary, kidnapping, and
shooting reflected in those hypothetical facts were committed for the benefit of the 38th
Street gang. Because one 38th Street gang member was involved in crimes against
another 38th Street gang member, Officer Schilling inferred that the victim had to have
done something that was a severe violation of a gang rule. Before one 38th Street gang
member could kill another 38th Street gang member, he would have to receive approval
from the “higher-ups” who ran the gang. The crimes could benefit the gang in a number
of ways. The crimes could be an “in-house cleaning” of a snitch or a member who had
stolen money or narcotics (presumably from the gang). By “tak[ing] out one of their

                                             9
own,” the gang would show other gang members that there were serious repercussions for
crossing the gang.


       C.     Evidence Presented Only to Benavidez’s Jury
       Montebello Police Officer Omar Rodriguez testified as a gang expert for the
prosecution. In Officer Rodriguez’s opinion, Benavidez was a member of the 213 gang.
The prosecutor presented Officer Rodriguez with a set of hypothetical facts based on the
facts in this case. Officer Rodriguez opined that the burglary, kidnapping, and shooting
described in the hypothetical facts benefited the 213 gang. Such crimes have a
significant effect on a community—gangs operate based on fear and intimidation. If the
community is intimidated by and fearful of a gang, it is less likely to cooperate with the
police when the gang commits crimes, thus allowing the gang to commit crimes openly.


IV.    Defense Case
       Baeza testified in his own behalf before his and Benavidez’s juries. Baeza
testified that Alvarez, a 38th Street gang member, was his childhood friend or
acquaintance. Alvarez had a reputation for being very violent.
       On July 7, 2009, “Memo,” a 38th Street gang member and Baeza’s childhood
friend, contacted Baeza at his home in Corona. Memo informed Baeza of a “very serious
situation” that involved several other 38th Street gang members. Memo told Baeza that
he had participated in Daniel Villasenor’s kidnapping, and asked Baeza to undertake a
“mission” to kidnap Alvarez to gather information about where Villasenor was being held
in “T.J.” Villasenor had been kidnapped at the beginning of July and a warning had been
given “that there was less than 24 hours before he was going to start being shipped in
pieces to the family.” Baeza believed that Alvarez was responsible for Villasenor’s
kidnapping.
       Baeza knew who Villasenor was, but had never spoken with him. He last spoke
with Villasenor’s father in the late 1990’s. Baeza had friends in law enforcement. He
thought about calling law enforcement to inform them that Alvarez had information about

                                            10
Villasenor’s kidnapping, but did not call. Instead, he undertook the “mission” to kidnap
Alvarez.
       A plan was devised to kidnap Alvarez from his house and take him to Mexico
where he would be turned over to the Mexican military so they could interrogate him and
learn where Villasenor was being held. The Mexican military was to recover Villasenor,
and Baeza was to return him to his family. Baeza had connections to the Mexican
military through his military background in the United States Army and his combat
service in Bosnia and Iraq. Baeza’s “mission” was to obtain information from Alvarez
about Villasenor’s whereabouts. The plan did not include killing Alvarez.
       Baeza met Memo at Ross Snyder Park. Other people “showed up”—between two
and 10 others. Baeza brought an M-16, a high-capacity magazine, and a ski mask.
Memo provided Baeza with a flak jacket.
       Baeza and others gained entry to Alvarez’s house. Baeza knew he was breaking
the law when he entered Alvarez’s house. Alvarez was removed from the house and
placed in the van. His hands and feet were bound. Benavidez was present in the van
after Alvarez had been taken. Baeza removed his mask to try to reassure Alvarez that
there was “a way out of this.” Baeza wanted Alvarez to know that Baeza was there and
that what was taking place concerned Villasenor, and they were not “trying to do
anything against his family.”
       Baeza and another man questioned Alvarez about Villasenor’s whereabouts.
Alvarez was told that he would be let go if he provided Villasenor’s location. When the
van entered the 710 Freeway, a police car began to follow it. Once Alvarez was aware
that a police car was behind the van, he threatened to kill Villasenor and everyone in the
van and their families. Baeza believed Alvarez when he said that he would kill
Villasenor, Baeza, and Baeza’s family.
       Alvarez did not stop making threats, so someone put duct tape around his mouth.
After Alvarez’s mouth was taped, someone shot Alvarez. Baeza did not shoot Alvarez.
He did not know who shot Alvarez because the others in the van were still wearing ski
masks. There was no discussion about shooting Alvarez and nothing was said before

                                            11
Alvarez was shot. Whoever shot Alvarez took it upon himself to do so. Baeza disagreed
with Alvarez’s killing because a dead person cannot provide information. If he had
wanted Alvarez dead, he could have shot him from a distance of 600 meters.
       After Alvarez was shot, people started leaving the van one at a time. Baeza also
left the van. When he got out, he raised his hands to surrender. After his arrest, Baeza
was placed in a cell with Benavidez. Benavidez asked Baeza, “Who killed that fool?”
       Baeza denied that he was a member of the 38th Street gang, but admitted that he
was an “associate” of the gang. He claimed to be a member of the 38th Street gang in jail
for security reasons. No one told Baeza that “this was done in order to clean up 38th
Street.” Baeza believed that there would be repercussions from 38th Street “over this,”
but that did not stop him. The “mission” was not a gang operation—i.e., something to
benefit the 38th Street gang, but something personal that dealt with someone who had
been kidnapped.
       Baeza was not paid for his participation in the “mission,” nor was he threatened to
coerce his participation. Baeza took on the “mission,” even though he did not know the
Villasenor family well because he had performed such missions overseas on other
occasions and he knew that innocent lives unrelated to gang life were at stake. Villasenor
was in imminent danger. Baeza explained that even though the “mission” involved
significant risk and that he would be breaking the law and facing punishment, he “felt
that deep down inside [his] conscience, this was the better option of the whole situation
of what was put on [his] plate.” He did not contact law enforcement because “given that
there was border lines to cross, law enforcement would not go and arrest Mr. Alvarez just
on hearsay.” Memo had come to him with solid information.
       On cross-examination, Benavidez’s attorney asked Baeza about his concern for
innocent family members. He asked Baeza if Alvarez had made threats against Baeza’s
innocent family members. Baeza responded, “Correct.” Benavidez’s attorney asked if,
“certain things” had to be done to take care of that threat to his family. Baeza responded,
“Correct.” The trial court asked Baeza, “Well, what certain things had to be done to



                                            12
protect his family.” Baeza responded, “Well, I don’t know which spectrum he is talking
about.”
       The trial court then asked Baeza a series of questions eliciting the following
summary of Baeza’s “mission:” The plan on July 7, 2009, was to kidnap Alvarez to
obtain information from him about Villasenor’s location. If Villasenor could not be
located, Alvarez would be exchanged for Villasenor’s release. If neither of those options
was successful, Baeza would take Alvarez to Mexico and turn him over to the Mexican
military.
       Baeza’s attorney introduced a certified copy of a complaint and a second amended
information charging Salvador Adame Martinez, Jr. with “Daniel V.’s” July 1, 2009,
kidnapping. The parties stipulated that Villasenor was alive and that Martinez had been
convicted of kidnapping Villasenor.


                                       DISCUSSION
I.     Necessity Instruction (CALJIC No. 4.43)
       Baeza contends that the trial court erred when it denied his request that his jury be
instructed on the defense of necessity with CALJIC No. 4.436 as to the kidnapping
charge. The trial court did not err.

6       CALJIC No. 4.43 provides:
        “A person is not guilty of a crime when [he] [she] engages in an act, otherwise
criminal, through necessity. The defendant has the burden of proving by a preponderance
of the evidence all of the facts necessary to establish the elements of this defense,
namely:
        “1. The act charged as criminal was done to prevent a significant and imminent
evil, namely, [a threat of bodily harm to oneself or another person] [or] [ ];
        “2. There was no reasonable legal alternative to the commission of the act;
        “3. The reasonably foreseeable harm likely to be caused by the act was not
disproportionate to the harm avoided;
        “4. The defendant entertained a good-faith belief that [his] [her] act was necessary
to prevent the greater harm;
        “5. That belief was objectively reasonable under all the circumstances; [and]
        “6. The defendant did not substantially contribute to the creation of the
emergency[.] [; and

                                             13
       A.     Background
       Baeza’s attorney requested that the trial court instruct his jury with CALJIC No.
4.43. The trial court cited People v. Miceli (2002) 104 Cal.App.4th 256, 268 for the
proposition that a necessity instruction is not appropriate when the defendant made no
attempt to enlist the aid of law enforcement. The trial court stated that Baeza testified
that he had friends in law enforcement but made no effort to seek their assistance. The
trial court stated that Baeza’s attorney could review People v. Miceli and that it would
consider the request again.
       When later discussing jury instructions, the trial court stated that it had reviewed
CALJIC No. 4.43 and it remained the court’s position that there was not substantial
evidence to instruct the jury on necessity. Baeza’s attorney argued that in People v.
Miceli, supra, 104 Cal.App.4th 256, the issue was whether the defendant’s belief that his
crime was necessary to prevent a greater harm was objectively reasonable. Such an
inquiry, counsel argued, was for the jury. He further argued that the danger to Villasenor
was real and not speculative—Baeza testified that he had been informed that those who
held Villasenor would start sending him home in pieces in 24 hours.
       Baeza’s attorney also argued that although the FBI was working on Villasenor’s
kidnapping, due to the “time constraints” time was of the essence. Baeza did not contact
local law enforcement because complaints to such entities are not acted upon quickly.
Moreover, Baeza did not have information that would establish probable cause for a
search warrant or an arrest warrant for Alvarez.
       The prosecutor argued that there was a reasonable legal alternative to kidnapping
Alvarez—Baeza could have contacted law enforcement. He also argued that the Baeza’s
belief that kidnapping was necessary to prevent greater harm to Villasenor was not
objectively reasonable because there was no showing that imminent bodily injury to
Villasenor could have been avoided even if Alvarez had divulged Villasenor’s location.



       “7. The defendant reported to the proper authorities immediately after attaining a
position of safety from the peril.]”

                                             14
In addition, Baeza did not call law enforcement and inform them that Alvarez was
involved in Villasenor’s kidnapping.
          The trial court declined to instruct Baeza’s jury with CALJIC No. 4.43. It based
its ruling on Baeza’s failure to contact law enforcement


          B.     Application of Relevant Principles
          “A defendant is entitled to instruction on request on any defense for which
substantial evidence exists. [Citation.] However, the trial court need give a requested
instruction concerning a defense only if there is substantial evidence to support the
defense. [Citation.] A defendant raising the defense of necessity has the burden of
proving that he violated the law ‘(1) to prevent a significant evil, (2) with no adequate
alternative, (3) without creating a greater danger than the one avoided, (4) with a good
faith belief in the necessity, (5) with such belief being objectively reasonable, and (6)
under circumstances in which he did not substantially contribute to the emergency.’
[Citation.]” (People v. Miceli, supra, 104 Cal.App.4th at p. 267.)
          When a defendant shows that he had a good faith belief in the need to break the
law to prevent a significant and imminent harm, that belief must be objectively
reasonable. (People v. Miceli, supra, 104 Cal.App.4th at p. 268.) “As a matter of public
policy, self-help by lawbreaking and violence cannot be countenanced where the alleged
danger is merely speculative and the lawbreaker has made no attempt to enlist law
enforcement on his side. ‘[T]he defense of necessity is inappropriate where it would
encourage rather than deter violence. Violence justified in the name of preempting some
future, necessarily speculative threat to life is the greater, not the lesser evil.’ [Citation.]”
(Ibid.)
          The trial court properly declined to instruct Baeza’s jury on necessity with
CALJIC No. 4.43 because substantial evidence did not support the instruction. Baeza
failed to show that he did not have an adequate alternative to breaking the law. (People
v. Miceli, supra, 104 Cal.App.4th at p. 267.) “The normal and appropriate response to a
perceived criminal emergency is to call the police.” (Ibid.) Baeza did not show that

                                               15
contacting law enforcement was not an adequate alternative. Baeza did not contact law
enforcement to inform them that Alvarez was involved in Villasenor’s kidnapping even
though he believed that the FBI was investigating Villasenor’s kidnapping. “The failure
to report an emergency to the proper authorities does not bar a necessity defense if the
evidence shows ‘a history of futile complaints which makes any result from such
complaints illusory.’ [Citation.]” (Id. at p. 268.) Baeza made no such showing.
       Baeza also failed to show that his belief in the need to break the law to prevent an
imminent and significant harm was objectively reasonable. (People v. Miceli, supra, 104
Cal.App.4th at p. 268.) Even though he believed that the FBI had an ongoing
investigation of Villasenor’s kidnapping, Baeza did not contact the FBI with information
pertinent to that investigation. Instead, at the urging of a 38th Street gang member, Baeza
participated in the home invasion kidnapping of a gang member he believed to be “very
violent” in an effort to obtain information about Villasenor’s whereabouts. He
participated in that home invasion kidnapping with four other persons he did not know.
In the process of the home invasion kidnapping, which began with two shotgun blasts to
gain entry into the Alvarez home, Baeza and his companions endangered Alvarez’s life,
and the lives of Alvarez’s wife, children, and parents. Under the circumstances, Baeza’s
action was objectively unreasonable. Accordingly, there was not sufficient evidence to
require an instruction on necessity as a defense.


II.    Sufficiency of the Evidence Supporting the Special Circumstance Finding
       that Baeza Committed Alvarez’s Murder While Engaged in the Crimes of
       Burglary or Kidnapping
       Baeza claims that insufficient evidence supports the special circumstance finding
that he committed Alvarez’s murder while engaged in the crimes of burglary or
kidnapping. He contends that the evidence was insufficient to support a finding that he
aided and abetted the shooter in Alvarez’s murder with the intent to kill or that he acted
with reckless indifference to human life by participating in the burglary or the
kidnapping. Because the evidence was sufficient to support the finding that Baeza aided

                                             16
and abetted the burglary and kidnapping as a major participant with reckless indifference
to human life, sufficient evidence supports the special circumstance finding.7


       A.     Standard of Review
       “‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1,
27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v.
Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) In so doing, a
reviewing court ‘presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ (People v. Kraft (2000) 23 Cal.4th 978,
1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) The same standard of review applies to the
sufficiency of the evidence supporting special circumstance findings. (People v.
Chatman (2006) 38 Cal.4th 344, 389 [42 Cal.Rptr.3d 621, 133 P.3d 534] . . . .)” (People
v. Edwards (2013) 57 Cal.4th 658, 715.)


       B.     Application of Relevant Principles
       Under section 190.2, subdivision (d),8 a jury may find true the special
circumstance of murder in the commission of a burglary or kidnapping when the


7       Because we hold that there was sufficient evidence that Baeza aided and abetted
the burglary and kidnapping as a major participant with reckless indifference to human
life (§ 190.2, subd. (d)), we need not decide whether there also was sufficient evidence
that he aided and abetted Alvarez’s first degree murder with the intent to kill (§ 190.2,
subd. (c)).

8      Section 190.2, subdivision (d) provides:

                                             17
defendant was not the actual killer, if it finds that the defendant aided and abetted a
felony enumerated in section 190.2, subdivision (a)(17) “with reckless indifference to
human life and as a major participant.” (People v. Montes (2014) 58 Cal.4th 809, 897
[kidnapping]; People v. Mil (2012) 53 Cal.4th 400, 409 [burglary].) “Reckless
indifference to human life” means “a defendant’s subjective awareness of the grave risk
to human life created by his or her participation in the underlying felony.” (People v.
Estrada (1995) 11 Cal.4th 568, 578.)
       Baeza states that he did not act with reckless indifference to human life by
participating in the burglary of Alvarez’s home and Alvarez’s kidnapping because he had
military combat experience; he had participated in similar “missions” overseas; he
viewed the “mission” to obtain information about Villasenor’s whereabouts as “just
another ‘mission’”; and, given his background and experience, he “would consider
getting into a van with other armed men to be no different than what he experienced by
participating in Army missions.” He contends that because the goals of the burglary and
Alvarez’s kidnapping were to obtain information about Villasenor’s whereabouts and to
keep Alvarez alive, he had no reason to believe that Alvarez would be harmed.
       There is sufficient evidence from which the jury could have found that Baeza
aided and abetted the burglary and kidnapping with reckless indifference to human life—
i.e., with the subjective awareness of the grave risk to human life his participation in the
burglary and kidnapping created. (§ 190.2, subd. (d); People v. Montes, supra, 58 Cal.4th
at p. 897; People v. Mil, supra, 53 Cal.4th at p. 409; People v. Estrada, supra, 11 Cal.4th


        “Notwithstanding subdivision (c) [aiding and abetting a first degree murder with
the intent to kill], every person, not the actual killer, who, with reckless indifference to
human life and as a major participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in paragraph (17) of
subdivision (a) which results in the death of some person or persons, and who is found
guilty of murder in the first degree therefor, shall be punished by death or imprisonment
in the state prison for life without the possibility of parole if a special circumstance
enumerated in paragraph (17) of subdivision (a) has been found to be true under Section
190.4.” Kidnapping and burglary are enumerated offenses in paragraph (17) of
subdivision (a). (§ 190.2, subd. (a)(17)(B) & (G).)

                                             18
at p. 578.) Notwithstanding Baeza’s military service and claimed prior experience in
similar “missions,” at the urging of a 38th Street gang member, Baeza participated in the
home invasion kidnapping of a gang member he believed to be “very violent.” The
organizer of the home invasion kidnapping provided Baeza with a flak jacket, suggesting
that he believed that Baeza was in danger of being shot during the “mission.” Baeza
entered Alvarez’s house armed with an M-16 rifle and participated in a home invasion
kidnapping with four armed would-be criminals rounded up by a gang member. One of
his companions used two shotgun blasts to gain entry into the Alvarez home. In addition
to Alvarez, Alvarez’s wife, children, and parents were in the home at the time of the
invasion. The suggestion that such a dangerous and ill-conceived plot bears any
resemblance to a mission carried out by members of the United States Army is not
entitled to serious consideration.


III.   Section 654’s Application to the Burglary, Kidnapping, and Being a Felon
       in Possession of a Firearm Convictions
       Baeza and Benavidez were convicted in count 1 of murder with the special
circumstance that they committed the murder while they were engaged in the commission
of a burglary or a kidnapping. Baeza and Benavidez were convicted in count 2 of
kidnapping, in count 3 of first degree burglary, and in counts 5 (Benavidez) and 6 (Baez)
of being a felon in possession of a firearm. The trial court sentenced Baeza and
Benavidez to terms of life without the possibility of parole plus 25 years to life on count
1 (murder), consecutive terms of 30 years to life on count 2 (kidnapping), concurrent
terms of nine years on count 3 (first degree burglary), and concurrent terms of five years
on counts 5 (Benavidez) and 6 (Baeza) (being a felon in possession of a firearm). Baeza
contends that the trial court should have stayed imposition of sentence on counts 2
(kidnapping), 3 (burglary), and 6 (being a felon in possession of a firearm) pursuant to
section 654 because the offenses were part of an indivisible course of conduct.
Benavidez contends that the trial court should have stayed his sentence on count 2



                                             19
(kidnapping) under section 654.9 Respondent agrees that the sentences for burglary and
kidnapping should have been stayed under section 654, but argues that the sentences for
being a felon in possession of a firearm properly were imposed. We hold that Baeza’s
and Benavidez’s sentences for their burglary and kidnapping convictions and
Benavidez’s sentence for being a felon in possession of a firearm conviction should have
been stayed under section 654. We further hold that Baeza’s sentence for his being a
felon in possession of a firearm conviction properly was not stayed under section 654.


       A.     Section 65410
       “It is well settled that section 654 protects against multiple punishment, not
multiple conviction. (People v. McFarland (1962) 58 Cal.2d 748, 762 [26 Cal.Rptr. 473,
376 P.2d 449].) The statute itself literally applies only where such punishment arises out
of multiple statutory violations produced by the ‘same act or omission.’ (See, e.g.,
People v. Siko (1988) 45 Cal.3d 820, 823-826 [248 Cal.Rptr. 110, 755 P.2d 294].)
However, because the statute is intended to ensure that [a] defendant is punished
‘commensurate with his culpability’ ([People v.] Perez [(1979)] 23 Cal.3d [545], 551), its


9       Although he claims in his reply brief that he previously joined all of Baeza’s
section 654 arguments, Benavidez only expressly joined Baeza’s section 654 argument as
to his kidnapping conviction. Nevertheless, we will also consider whether Benavidez’s
sentences for his burglary and being a felon in possession of a firearm convictions should
have been stayed under section 654. (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3
[“Errors in the applicability of section 654 are corrected on appeal regardless of whether
the point was raised by objection in the trial court or assigned as error on appeal. (See
e.g., People v. Miller (1977) 18 Cal.3d 873, 887 [135 Cal.Rptr. 654, 558 P.2d 552];
People v. Milan (1973) 9 Cal.3d 185, 189 [107 Cal.Rptr. 68, 507 P.2d 956]; People v.
Isenor (1971) 17 Cal.App.3d 324, 335-336 [94 Cal.Rptr. 746])”].)

10     Section 654, subdivision (a) provides:
       “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.”

                                             20
protection has been extended to cases in which there are several offenses committed
during ‘a course of conduct deemed to be indivisible in time.’ (People v. Beamon (1973)
8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905].)” (People v. Harrison (1989) 48
Cal.3d 321, 335.)


       B.     The Burglary and Kidnapping Convictions
       When a defendant is prosecuted solely under a felony-murder theory, he may not
be sentenced consecutively for the murder and underlying felony. (People v. Boyd
(1990) 222 Cal.App.3d 541, 575-576; People v. Mulqueen (1970) 9 Cal.App.3d 532, 547;
People v. Magee (1963) 217 Cal.App.2d 443, 470-472.) Section 654 bars imposition of
punishment for the underlying felony because the underlying felony was the act that
made the homicide first degree murder. (People v. Boyd, supra, 222 Cal.App.3d at p.
575; People v. Mulqueen, supra, 9 Cal.App.3d at p. 547.)
       The prosecution prosecuted Baeza and Benavidez solely on a felony-murder
theory. The trial court instructed the juries only on felony murder, with burglary “or”
kidnapping being the underlying felonies. Accordingly, because burglary and kidnapping
were the act or acts that made Alvarez’s homicide first degree murder, section 654 barred
imposition of sentence on those underlying felonies. (People v. Boyd, supra, 222
Cal.App.3d at pp. 575-576; People v. Mulqueen, supra, 9 Cal.App.3d at p. 547; People v.
Magee, supra, 217 Cal.App.2d at pp. 470-472.) Baeza’s and Benavidez’s abstracts of
judgment are ordered modified to reflect stays of their burglary and kidnapping sentences
under section 654.


       C.     The Felon in Possession of a Firearm Convictions
       “‘Whether a violation of section 12021, forbidding persons convicted of felonies
from possessing firearms concealable upon the person, constitutes a divisible transaction
from the offense in which he employs the weapon depends upon the facts and evidence of
each individual case. Thus where the evidence shows a possession distinctly antecedent
and separate from the primary offense, punishment on both crimes has been approved.

                                            21
On the other hand, where the evidence shows a possession only in conjunction with the
primary offense, then punishment for the illegal possession of the firearm has been held
to be improper where it is the lesser offense.’ [Citation.]” (People v. Bradford (1976) 17
Cal.3d 8, 22.)
       Baeza testified that he brought the M-16 with him to the “mission.” Accordingly,
his possession of that firearm was distinctly antecedent to the burglary, kidnapping, or
murder and section 654 did not prevent separate punishment for his conviction for being
a felon in possession of a firearm. (People v. Bradford, supra, 17 Cal.3d at p. 22; People
v. Jones (2002) 103 Cal.App.4th 1139, 1145 [“section 654 is inapplicable when the
evidence shows that the defendant arrived at the scene of his or her primary crime already
in possession of the firearm”].)
       Because Baeza’s aggregate sentence is reduced by a term of 30 years to life by our
holding that section 654 applied to Baeza’s kidnapping conviction, we remand the matter
to the trial court for resentencing on Baeza’s being a felon in possession of a firearm
conviction. (See People v. Neely (2009) 176 Cal.App.4th 787, 799.) In its discretion, the
trial court is to determine the appropriate term for Baeza’s being a felon in possession of
a firearm conviction. (Ibid.)
       The only evidence concerning the timing of Benavidez’s possession of a firearm
was his statement to Detective Holston and Sergeant Rubino that “they”—those involved
in the burglary and Alvarez’s kidnapping—gave him a handgun, apparently when he
entered the van. That evidence showed possession “only in conjunction with the primary
offense[s],” and not “possession distinctly antecedent and separate from the primary
offense[s].” (People v. Bradford, supra, 17 Cal.3d at p. 22.) Accordingly, imposition of
sentence for Benavidez’s being a felon in possession of a firearm conviction should have
been stayed under section 654. Benavidez’s abstract of judgment is order modified to
reflect a stayed sentence for that conviction under section 654.




                                             22
IV.    The Parole Revocation Restitution Fines (§ 1202.45)
       Baeza contends that the $1,000 parole revocation restitution fine (§ 1202.4511)
must be stricken from his sentencing minute order and abstract of judgment because the
trial court did not impose such a fine at the sentencing hearing. He further contends that
a parole revocation restitution fine could not properly have been imposed in his case
because he received a sentence of life without the possibility of parole for his murder
conviction and thus was ineligible for parole. Benavidez contends that the trial court
improperly imposed a $1,000 parole revocation restitution fine because he received a
sentence of life without the possibility of parole for his murder conviction and thus was
ineligible for parole.
       At Baeza’s sentencing hearing, the trial court imposed a $1,000 restitution fine
pursuant to section 1202.4, subdivision (b). It did not, however, impose a parole
revocation restitution fine pursuant to section 1202.45. Nevertheless, the minute order
for Baeza’s sentencing hearing and his abstract of judgment reflect that the trial court
imposed a $1,000 parole revocation restitution fine.
       Baeza cites People v. Zackery (2007) 147 Cal.App.4th 380, 385 for the well-
established proposition that “[w]here there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.” In determining whether we should strike the parole revocation
restitution fine from the minute order and abstract of judgment, the issue is not whether
the trial court actually imposed a parole revocation restitution fine—it clearly did not.
Rather, the issue is whether the trial court’s failure to impose a mandatory parole
revocation restitution fine may be corrected on appeal—it may be corrected. “[W]here
the trial court imposes a section 1202.4 fine, its omission of a concomitant, mandatory

11      Section 1202.45, subdivision (a) provides:
        “In every case where a person is convicted of a crime and his or her sentence
includes a period of parole, the court shall, at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section
1202.4.”

                                             23
parole revocation fine under section 1202.45 in the same amount results in an
unauthorized sentence which may be corrected in the first instance on appeal.” (People v.
Rodriguez (2000) 80 Cal.App.4th 372, 378; § 1202.45.) Accordingly, Baeza’s claim that
we must strike the $1,000 parole revocation restitution fine from his sentencing minute
order and abstract of judgment fails.
       Baeza and Benavidez rely on our opinion in People v. Oganesyan (1999) 70
Cal.App.4th 1178, 1183 (Oganesyan) for the proposition that the trial court could not
properly impose parole revocation restitution fines because they received sentences of
life without the possibility of parole for their murder convictions and thus were ineligible
for parole. Instead, the California Supreme Court’s decision in People v. Brasure (2008)
42 Cal.4th 1037, 1075 (Brasure) controls. In Brasure, the court held that a parole
revocation restitution fine under section 1202.45 is mandatory in every case in which
there is at least one count with a determinate sentence, even when the defendant is
sentenced to death on other counts. (Brasure, supra, 42 Cal.4th at p. 1075.) The
Supreme Court distinguished our opinion in Oganesyan on the ground that that case did
not involve a “determinate term of imprisonment imposed under section 1170, but rather
a sentence of life without the possibility of parole for first degree special-circumstance
murder and an indeterminate life sentence for second degree murder. (Oganesyan, at p.
1181.)” (Brasure, supra, 42 Cal.4th at p. 1075.) The court stated, “As in Oganesyan, to
be sure, defendant here is unlikely ever to serve any part of the parole period on his
determinate sentence. Nonetheless, such a period was included in his determinate
sentence by law and carried with it, also by law, a suspended parole revocation restitution
fine. Defendant is in no way prejudiced by assessment of the fine, which will become
payable only if he actually does begin serving a period of parole and his parole is
revoked.” (Ibid.) Although a parole revocation restitution fine must be imposed in cases
in which there is one count with a determinate sentence (Brasure, supra, 42 Cal.4th at p.
1075), such a fine may not be imposed when the determinate sentence has been stayed
under section 654. (People v. Pearson (1986) 42 Cal.3d 351, 361 [“section 654 prohibits
the use of a conviction for any punitive purpose if the sentence on that conviction is

                                             24
stayed”]; People v. Cruz (2012) 207 Cal.App.4th 664, 672-673, fn. 8 [at least for ex post
facto purposes, “imposition of a parole revocation restitution fine pursuant to section
1202.45 is viewed as punitive”]; see People v. Hannah (1999) 73 Cal.App.4th 270, 274-
275 [a trial court may not impose a section 1202.45 fine if it suspended the state prison
sentence and placed the defendant on probation because the defendant was “presently not
subject to a parole period and will not be absent a revocation of her probation and
commitment to prison”]; see also People v. Hanson (2000) 23 Cal.4th 355, 361-362 [the
restitution fine under section 1202.4, subdivision (b) is a criminal penalty or punishment];
People v. Le (2006) 136 Cal.App.4th 925, 933 [section 654’s ban on multiple
punishments is violated if the trial court considers a sentence that should have been
stayed pursuant to section 654 in calculating the restitution fine under the formula
provided by section 1202.4, subdivision (b)(2)].)
       Here, in addition to their sentences of life without the possibility of parole for
Alvarez’s murder, Baeza and Benavidez also were sentenced to determinate terms for
their burglary, kidnapping, and being a felon in possession of a firearm convictions. We
held above that the sentences for Baeza’s determinate term offenses of burglary and
kidnapping should have been stayed under section 654, but that the sentence for his
determinate term offense of being a felon in possession of a firearm was not subject to
section 654’s terms. Accordingly, because Baeza is to serve a concurrent determinate
term and thus is subject to a period of parole, the section 1202.45 was mandatory.
(Brasure, supra, 42 Cal.4th at p. 1075; People v. Pearson, supra, 42 Cal.3d at p. 361;
People v. Hanson, supra, 23 Cal.4th at pp. 361-362; People v. Cruz, supra, 207
Cal.App.4th at pp. 672-673, fn. 8; see People v. Hannah, supra, 73 Cal.App.4th at pp.
274-275.) We also held above that all of Benavidez’s determinate term offenses should
have been stayed under section 654. Accordingly, because Benavidez is not to serve a
determinate term and thus is not subject to a period of parole, the trial court erred in
imposing on him a parole revocation restitution fine under section 1202.45. (Brasure,
supra, 42 Cal.4th at p. 1075; People v. Pearson, supra, 42 Cal.3d at p. 361; People v.
Hanson, supra, 23 Cal.4th at pp. 361-362; People v. Cruz, supra, 207 Cal.App.4th at pp.

                                             25
672-673, fn. 8; see People v. Hannah, supra, 73 Cal.App.4th at pp. 274-275.)
Benavidez’s abstract of judgment is order modified to strike the parole revocation
restitution fine.


V.     CALJIC No. 3.00
       Benavidez contends that his jury’s finding on the felony murder special
circumstance allegation must be reversed because the trial court erred in instructing his
jury with CALJIC No. 3.00 that “[e]ach principal, regardless of the extent or manner of
participation is equally guilty.” Benavidez forfeited any objection to CALJIC No. 3.00
by failing to object or to request appropriate clarifying or amplifying language in the trial
court. In any event, any error with respect to CALJIC No. 3.00 was harmless.


       A.      Forfeiture
       Benavidez contends that we should review his contention with respect to CALJIC
No. 3.00 even though he made no objection to the instruction in the trial court because
the trial court had a duty to instruct the jury correctly and the instruction affected his
substantial rights within the meaning of section 1259.12 Benavidez further contends that
if he was obligated to object in the trial court, defense counsel was ineffective in failing
to do so.
       The trial court instructed Benavidez’s jury with CALJIC No. 3.00 that, “Persons
who are involved in commiting [sic] a crime are referred to as principals in that crime.
Each principal, regardless of the extent or manner of participation is equally guilty.

12      Section 1259 provides:
        “Upon an appeal taken by the defendant, the appellate court may, without
exception having been taken in the trial court, review any question of law involved in any
ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after
judgment, which thing was said or done after objection made in and considered by the
lower court, and which affected the substantial rights of the defendant. The appellate
court may also review any instruction given, refused or modified, even though no
objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby.”

                                              26
Principals include: [¶] 1. Those who directly and actively commit the act constituting
the crime, or 2. Those who aid and abet the commission of the crime.”
       In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163, the court considered
whether a challenge to CALCRIM No. 400—the CALCRIM analogue to CALJIC No.
3.00—had been forfeited by the defendant’s failure to object to the instruction in the trial
court. The court stated, “Generally, ‘“[a] party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.”’
[Citations.]” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.) The court stated
that because CALCRIM No. 400 was generally an accurate statement of law, though
misleading in that case, the defendant was obligated to request modification or
clarification and, having failed to do so, forfeited his challenge to the instruction. (Ibid.;
People v. Mejia (2012) 211 Cal.App.4th 586, 624.) Here, Benavidez failed to object to
CALJIC No. 3.00 or to request appropriate clarifying or amplifying language. We do not
believe “substantial rights of the defendant” were affected by a forfeiture. (§ 1259.)
Accordingly, Benavidez has forfeited appellate review of his claim. (See People v.
Mejia, supra, 211 Cal.App.4th at p. 624; People v. Samaniego, supra, 172 Cal.App.4th at
p. 1163.)
       Benavidez contends that if his attorney’s failure to object to CALJIC No. 3.00 in
the trial court forfeited appellate review of his claim, then he received ineffective
assistance of counsel. “‘Generally, a conviction will not be reversed based on a claim of
ineffective assistance of counsel unless the defendant establishes both of the following:
(1) that counsel’s representation fell below an objective standard of reasonableness; and
(2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a
determination more favorable to defendant would have resulted. [Citations.]’” (People
v. Foster (2003) 111 Cal.App.4th 379, 383.) “Generally, . . . prejudice must be
affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding . . . . The defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional

                                              27
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’ [Citations.]”
(People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) If the defendant fails to make a
sufficient showing either of deficient performance or prejudice, the ineffective assistance
claim fails. (People v. Foster, supra, 111 Cal.App.4th at p. 383.)
       Any deficiency in defense counsel’s failure to object to CALJIC No. 3.00 or to
request that the instruction be modified was not prejudicial. (In re Fields (1990) 51
Cal.3d 1063, 1079 [a reviewing court need not determine “‘whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed’”] quoting Strickland v. Washington (1984) 466 U.S. 668, 697;
People v. Boyette (2002) 29 Cal.4th 381, 430-431 [“We reject defendant’s contention that
his counsel were ineffective for failing to object, because even assuming counsel’s
inaction was unreasonable, no prejudice resulted”].) Because, as we explain below, any
error in instructing with CALJIC No. 3.00 was harmless, Benavidez was not prejudiced
by the failure to object to CALJIC No. 3.00, and thus did not receive reversible
ineffective assistance of counsel. (In re Fields, supra, 51 Cal.3d at p. 1079; People v.
Boyette, supra, 29 Cal.4th at pp. 430-431.)


       B.      Harmless Error
       CALJIC No. 3.00 may have the potential to mislead the jury. In considering a
challenge to CALCRIM No. 400, the court in People v. Samaniego, supra, 172
Cal.App.4th at pages 1164-1165 stated, “The Supreme Court reasoned that ‘when a
person, with the mental state necessary for an aider and abettor, helps or induces another
to kill, that person’s guilt is determined by the combined acts of all the participants as
well as that person’s own mens rea. If that person’s mens rea is more culpable than
another’s, that person’s guilt may be greater even if the other might be deemed the actual
perpetrator.’ ([People v.] McCoy [(2001)] 25 Cal.4th [1111,] 1117, 1122, italics added.)

                                               28
‘“[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of
the secondary parties should be assessed according to his own mens rea.’”’ (Id. at p.
1118.) When the offense is a specific intent offense, ‘“the accomplice must ‘share the
specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent
of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or
purpose of facilitating the perpetrator’s commission of the crime.’”’ (Ibid.) In the case
of murder, the aider and abettor ‘must know and share the murderous intent of the actual
perpetrator.’ (Ibid.) [¶] Though McCoy concluded that an aider and abettor could be
guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the
further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s,
if the aider and abettor has a less culpable mental state. (See People v. Woods (1992) 8
Cal.App.4th 1570, 1577 [11 Cal.Rptr.2d 231].) Consequently, CALCRIM No. 400’ s
direction that ‘[a] person is equally guilty of the crime [of which the perpetrator is guilty]
whether he or she committed it personally or aided and abetted the perpetrator who
committed it’ (CALCRIM No. 400, italics added), while generally correct in all but the
most exceptional circumstances, is misleading here and should have been modified.”
       Even if the trial court erred in instructing the jury with CALJIC No. 3.00, any such
error was harmless. We review instructional error with respect to CALJIC No. 3.00
using the harmless error test under Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). (See People v. Mejia, supra, 211 Cal.App.4th at p. 625; People v.
Samaniego, supra, 172 Cal.App.4th at p. 1165.) Under that test, we find the error
harmless if we determine beyond a reasonable doubt that the jury verdict would have
been the same absent the error. (People v. Mejia, supra, 211 Cal.App.4th at p. 625;
People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) CALJIC Nos. 3.01 and 8.80.1
that were given to Benavidez’s jury required the jury to find an individual intent to kill
and thereby would have vitiated in large part any possible confusion by CALJIC No.
3.00. (See People v. Mejia, supra, 211 Cal.App.4th at p. 634.)
       Moreover, the evidence adduced at trial in support of the burglary or kidnapping
special circumstance—that Benavidez aided and abetted the shooter in Alvarez’s murder

                                              29
with the intent to kill or that he acted with reckless indifference to human life by
participating in the burglary or the kidnapping—was substantial. The evidence showed
that Benavidez, at the urging of a 38th Street Gang member, participated with others in
an armed, home invasion kidnapping. One of his companions used two shotgun blasts to
gain entry into the Alvarez home. The Alvarez home was occupied at the time of the
invasion—Alvarez and his wife, children, and parents were in the home. Moreover, even
if Benavidez’s jury believed Benavidez’s statement in his interview with Detective
Holston and Sergeant Rubino that he entered Alvarez’s home with the intent to rob
Alvarez rather than to kidnap him, his admission that he entered Alvarez’s house with the
intent to rob was sufficient to support the special circumstance based on burglary. (See
People v. Abilez (2007) 41 Cal.4th 472, 508.) Thus, the evidence showed that under the
circumstances, Benavidez acted with reckless indifference to human life. Accordingly,
even if the trial court had not instructed the jury with CALJIC No. 3.00, or had instructed
with a modified version, it is beyond a reasonable doubt that the jury would have found
true the burglary or kidnapping special circumstance. (See People v. Mejia, supra, 211
Cal.App.4th at p. 625; People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)


VI.    Benavidez’s Interview Transcript
       Benavidez contends that the failure to redact references to his parole status and
prior incarceration from the transcript the jury viewed of his interview with Detective
Holston and Sergeant Rubino violated Evidence Code section 352.13 He contends that
the error was prejudicial because it compromised the jury’s ability to fairly and
dispassionately resolve his status as an aider and abettor for the special circumstance

13     He also contends that it is reasonable to assume that the unredacted transcript
accurately portrayed the recording played for the jury—i.e., that the recording also
contained the objectionable material. Because the parties stipulated that the court
reporter did not need to transcribe the recording played for the jury, we cannot determine
whether Benavidez’s assumption is correct. Whether the complained of statements were
presented to the jury through the recording or the transcript or both appears to be
immaterial. For purposes of our analysis, we will assume that the recording played for
the jury also contained the statements about which Benavidez complains.

                                             30
allegation—i.e., whether he aided and abetted the shooter in Alvarez’s murder with the
intent to kill or aided and abetted the burglary or kidnapping “with reckless indifference
to human life and as a major participant.” He further contends that “[t]o the extent that
trial counsel’s failed [sic] to properly review the transcript here at issue before it went to
the jury or to pay attention to the recording actually being played in open court . . .
counsel rendered prejudicial ineffective assistance.”


       A.     Background
       During trial, Benavidez asked that certain references to his parole status and prior
incarceration in his interview with Detective Holston and Sergeant Rubino not be
presented to the jury and thus be redacted. The prosecutor agreed not to play for the jury
the recording of that part of the interview to which Benavidez objected, and to redact the
objectionable material from the transcript of the interview to be provided to the jury.14
The transcript that was provided to the jury contained a discussion about the identity of
Benavidez’s parole agent. It also contained Benavidez’s statement that he had been in
“Chino” with Grumps before Grumps was paroled—the inference being that “Chino” was
a prison because it was a place from which Grumps was paroled.15




14     Benavidez claims that the trial court ruled that the probative value of the evidence
was outweighed by its potential for prejudice, and ordered the interview transcript
redacted. The trial court made no such finding or order, it merely presided over the
parties’ resolution of the issue.

15     In the discussion of Benavidez’s objection, his attorney appears to have quoted
language from the interview transcript about Benavidez’s parole status and prior
incarceration that does not appear in the transcript presented to the jury. It is unclear
whether defense counsel misquoted the transcript or whether the prosecutor prepared a
new version of the transcript that removed some, but not all, references to Benavidez’s
parole status and prior incarceration. On appeal, Benavidez’s claim is limited to his
statements about his parole agent’s identity and having been in Chino with Grumps.

                                              31
       B.     Forfeiture
       Citing People v. Marks (2003) 31 Cal.4th 197, 228, respondent contends that
Benavidez has forfeited review of this issue because he did not object in the trial court to
the specific references to his parole status and prior incarceration that he complains of on
appeal. Forfeiture is not appropriate because Benavidez’s objection, reasonably
construed, concerned the evidence that is the subject of his appellate claim. In explaining
his objection, Benavidez told the trial court, “there are two areas that I’m concerned
about.” (Italics added.) The first area was Benavidez’s parole status—“as reflected on
page 5 of the document, it talks about him being on parole.” The second area was his
prior incarceration—“he described meeting a person [Grumpy] who had initially
informed him of this incident, and he said he knew this person from being in, he said,
‘Chino,’ which means that he was in state prison with this person.” In further discussing
his objection and identifying transcript statements related to those “areas” to which he
objected, Benavidez’s attorney did not quote or specifically identify, by page and line, the
transcript statements he complains about on appeal. Nevertheless, reasonably construed,
Benavidez’s objection included those statements. (See People v. Partida (2005) 37
Cal.4th 428, 434-435 [“[T]he requirement of a specific objection serves important
purposes. But, to further these purposes, the requirement must be interpreted reasonably,
not formalistically”].) Accordingly, Benavidez has not forfeited review of this issue.


       C.     Application of Relevant Principles
       Evidence Code section 352 provides, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” We review a
claim that a trial court erred in admitting evidence under Evidence Code section 352
under People v. Watson (1956) 46 Cal.2d 818, 836—i.e., an error is harmless unless it is
“‘reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.’” (People v. Earp (1999) 20 Cal.4th 826, 878.)

                                             32
       Even if it was error for Benavidez’s jury to receive the unredacted interview
transcript and to learn of Benavidez’s parole status and prior incarceration, any such error
was harmless. In light of the evidence discussed above in connection with Benavidez’s
CALJIC No. 3.00 argument in support of the burglary or kidnapping special
circumstance, it is not reasonably probable that the jury would have found the special
circumstance allegation not true if it had not learned that Benavidez was on parole and
had been incarcerated. Moreover, because any error with respect to the unredacted
interview transcript was harmless, Benavidez was not prejudiced by counsel’s failure “to
properly review the transcript . . . before it went to the jury or to pay attention to the
recording actually being played in open court” and thus did not receive ineffective
assistance of counsel. (In re Fields, supra, 51 Cal.3d at p. 1079; People v. Boyette,
supra, 29 Cal.4th at pp. 430-431.)


VII.   Sufficiency of the Evidence Supporting Benavidez’s Gang Enhancements
       Benavidez claims that there is insufficient evidence to support his gang
enhancements. Sufficient evidence supports the gang enhancements.


       A.     Standard of Review
       We review a claim of insufficient evidence to support a gang enhancement finding
under the same standard of review that we use for a claim of insufficient evidence to
support a conviction on a substantive offense. (People v. Villalobos (2006) 145
Cal.App.4th 310, 321-322.) We set forth that standard of review above. Under that
standard, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support”’ the
jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)


       B.     Application of Relevant Principles
       “[T]o prove the elements of the criminal street gang enhancement, the prosecution
may, as in this case, present expert testimony on criminal street gangs. (People v.

                                              33
Gardeley [(1996)] 14 Cal.4th [605,] 617-620.)” (People v. Hernandez (2004) 33 Cal.4th
1040, 1047-1048.) “‘Expert opinion that particular criminal conduct benefited a gang’ is
not only permissible but can be sufficient to support the Penal Code section 186.22,
subdivision (b)(1), gang enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048;
see People v. Albillar (2010) 51 Cal.4th 47, 63 [“Expert opinion that particular criminal
conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to
raise the inference that the conduct was ‘committed for the benefit of . . . a[ ] criminal
street gang’ within the meaning of section 186.22(b)(1). [Citation.]”]; People v.
Gardeley, supra, 14 Cal.4th at p. 619.)
       Officer Rodriguez, the prosecution’s gang expert in the case against Benavidez,
opined that Benavidez was a member of the 213 gang. He further opined, based on a set
of hypothetical facts modeled on the facts in this case, that the burglary, kidnapping, and
shooting described in the hypothetical facts benefited the 213 gang. He explained that
such crimes intimidate and instill fear in the community, causing the community to be
less likely to cooperate with the police when the gang commits a crime, thus allowing the
gang to commit crimes openly. Officer Rodriguez’s testimony is sufficient to support the
gang enhancements. (People v. Zamudio, supra, 43 Cal.4th at p. 357; People v.
Villalobos, supra, 145 Cal.App.4th at pp. 321-322; People v. Vang, supra, 52 Cal.4th at
p. 1048; People v. Hernandez, supra, 33 Cal.4th at pp. 1047-1048; People v. Gardeley,
supra, 14 Cal.4th at p. 619.)


VIII. Multiple Conviction Rule and Double Jeopardy Principles
       Benavidez argues that the imposition of the 25 years to life enhancement under
section 12022.53, subdivision (d) on his murder conviction violates California’s
“multiple conviction rule” as stated in People v. Ortega (1998) 19 Cal.4th 686 and
People v. Pearson, supra, 42 Cal.3d 351. This is so, Benavidez contends, because the
factual element essential to establishing the section 12022.53, subdivision (d)
enhancement—discharge of a firearm causing death—is necessarily subsumed within the
elements of murder—proximately causing the death of the victim. Benavidez also argues

                                             34
that federal double jeopardy principles should apply to multiple punishments within a
unitary trial and not to successive prosecutions only.
       Benavidez concedes that two California Supreme Court decisions have rejected his
contention under California’s multiple conviction rule. (People v. Sloan (2007) 42
Cal.4th 110, 115-125 and People v. Izaguirre (2007) 42 Cal.4th 126, 130-134.)
Benavidez’s argument that his punishment violated California’s multiple conviction rule
fails because we are bound by those decisions under Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.
       Benavidez also concedes that, historically, federal double jeopardy has not applied
to multiple punishments within a unitary trial, but contends that recent United States
Supreme Court decisions “suggest” that it now should. Again, because there is California
Supreme Court and United States Supreme Court authority holding that multiple criminal
punishments that arise out of a unitary criminal proceeding do not implicate federal
double jeopardy principles (People v. Sloan, supra, 42 Cal.4th at p. 121; Hudson v.
United States (1997) 522 U.S. 93, 99), we are bound to follow that authority and reject
Benavidez’s double jeopardy contention.


IX.    Benavidez’s Section 667.5, Subdivision (b) Prior Conviction Allegations
       Respondent argues that the trial court “neglected” to impose on Benavidez a
mandatory consecutive 12 year term under section 667.5, subdivisions (a) and (c) for
Benavidez’s admitted four prior convictions. Citing People v. Thomas (2013) 214
Cal.App.4th 636, 640, respondent argues that the trial court’s error was jurisdictional and
that that we may correct the error. Respondent contends that we should correct
Benavidez’s sentence or instruct the trial court to do so on remand. We asked the parties
to submit supplemental letter briefs addressing whether the trial court properly advised
Benavidez of the penal consequences under section 667.5, subdivision (b)16 of his

16     See footnote 4 above. In its supplemental letter brief, respondent corrects its
mistake in requesting imposition of a 12 year term under subdivision (a) rather than a
four year term under subdivision (b) of section 667.5.

                                            35
admission that he suffered four prior convictions and, if the trial court failed properly to
advise him, whether we should remand Benavidez’s case to the trial court for retrial of
the prior conviction allegations.
       “Before a trial court may accept a defendant’s admission of prior felony
convictions, the court must advise the accused of the right against compulsory self-
incrimination, the right to confrontation, and the right to a jury trial. (People v. Mosby
(2004) 33 Cal.4th 353, 359-360 [15 Cal.Rptr.3d 262, 92 P.3d 841] . . . ; Boykin v.
Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1
Cal.3d 122, 132 [81 Cal.Rptr. 577, 460 P.2d 449]; In re Yurko (1974) 10 Cal.3d 857 [112
Cal.Rptr. 513, 519 P.2d 561].) The trial court also must advise the accused of the penal
consequences of admitting a prior conviction.” (People v. Sifuentes (2011) 195
Cal.App.4th 1410, 1420.) “‘Unlike an uninformed waiver of the specified constitutional
rights which renders a plea or admission involuntary and requires that it be set aside, an
uninformed waiver based on the failure of the court to advise an accused of the
consequences of an admission constitutes error which requires that the admission be set
aside only if the error is prejudicial to the accused.’ [Citation.] ‘A showing of prejudice
requires the appellant to demonstrate that it is reasonably probable he would not have
entered his plea if he had been told about the [penal consequences].’ [Citations.]”
(People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, overruled on another ground in
People v. Villalobos, supra, 54 Cal.4th at p. 183.) On remand, the prior conviction
allegations may be retried. (People v. Sifuentes, supra, 195 Cal.App.4th at p. 1421.)
       Here, the trial court failed to advise Benavidez of the penal consequences of his
admissions. Accordingly, we remand the matter to the trial court to determine whether
Benavidez suffered prejudice. If the trial court finds prejudice, then the prosecution may
retry the allegations that Benavidez suffered four prior convictions for which he served a
term in prison within the meaning of section 667.5, subdivision (b). If the trial court does
not find prejudice, then it must strike or impose the sentence enhancements under section
667.5, subdivision (b).



                                             36
                                     DISPOSITION
       Baeza’s abstract of judgment is ordered modified to reflect a stay of imposition of
sentence on his burglary and kidnapping convictions under section 654, and his case is
remanded to the trial court for resentencing on his being a felon in possession of a firearm
conviction. Benavidez’s abstract of judgment is ordered modified to reflect a stay of
imposition of sentence on his burglary, kidnapping, and being a felon in possession of a
firearm under section 654 and to strike the $1,000 section 1202.45 parole revocation
restitution fine. Benavidez’s case is remanded to the trial court for further proceedings,
as set forth above, in connection with the allegations that Benavidez suffered four prior
convictions within the meaning of section 667.5, subdivision (b). The judgments are
otherwise affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 MOSK, J.


We concur:



              TURNER, P. J.



              MINK, J.




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

                                            37
