Filed 3/25/16 P. v. Sandoval 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B262643

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA120651)
         v.

ISAIAS SANDOVAL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
A. Cowell, Judge. Affirmed.
         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
          Defendant and appellant Isaias Sandoval (defendant) admitted in a recorded
interview with members of the Los Angeles County Sheriff’s Department that he
accompanied fellow gang member Jesus Bugarin (Bugarin) on an armed robbery at a
home occupied by Sergio Oropeza (Oropeza). During the robbery, Bugarin shot and
killed Oropeza, and a jury found defendant guilty of the murder of Oropeza under the
first-degree felony-murder rule. We are asked to decide whether the trial court erred in
imposing a 25-to-life prison term on defendant as the result of a sentencing enhancement
that applied because of Bugarin’s discharge of the firearm during the robbery. We also
consider claims of prosecutorial misconduct and instructional error.


                                       I. BACKGROUND
          On September 13, 2010, Victor Zambrano (Zambrano) saw a man wearing a blue
t-shirt (Bugarin) force Oropeza into his own garage. Zambrano was visiting Oropeza’s
neighbor, Fernando Salcedo (Salcedo), at the time. Another man (later identified as
defendant) then walked very quickly up Oropeza’s driveway, entered the garage and
closed the door behind him. Zambrano heard a noise that sounded like banging on walls;
Salcedo described the noise as the sound of fighting. Oropeza’s six-year-old son Kevin
who was present in the home also heard a noise, which sounded like his father was being
hit. Kevin called out to his father.
          The garage door opened and two men came out with Oropeza. According to
Kevin, the men were kicking his father. According to Zambrano, the two men ran out of
the garage, followed by Oropeza. Oropeza tried to grab Bugarin, and Bugarin turned and
shot Oropeza. Salcedo saw both men, who were young and Latino, run toward Live Oak
Street.
          Alba Mejia was walking on Live Oak Street, heard gunshots, and saw two men run
out of the driveway of a house. They ran to a white car, which had a driver sitting in it.
The car drove away after the two men got inside.




                                              2
         Oropeza died from two gunshots, one to his chest and the other to his back. The
shots were fired from a .40 caliber semi-automatic handgun, consistent with a Sig Sauer.
Oropeza also had injuries to his head.
         For reasons that were not discussed by the witnesses at trial, law enforcement
officers suspected defendant of being involved in the robbery-murder and arrested him.
After his arrest, Los Angeles County Deputy Sheriff Tyrone Berry interviewed defendant
in jail. Deputy Berry was part of a task force that had investigated a gang calling itself
JBI, and Berry had previous contacts with defendant, who was a member of JBI.
         During the interview, which was recorded and played for the jury, defendant stated
that Bugarin, also a JBI gang member, and “Kid” targeted Oropeza for robbery because
he was believed to have a lot of money in his house. Defendant admitted he was part of
the planning for the robbery. He said that he was picked up by Bugarin and that together
they went to the area of Oropeza’s home. The two men drove around the block a few
times, and defendant was worried about “jacking” Oropeza without more manpower. He
asked Bugarin how he was planning on carrying out the robbery alone, telling him he was
a “stupid fool” for attempting it. Bugarin told defendant that others, including “Chon,”
were present nearby. Defendant saw them in a minivan, but was still concerned because
Chon knew the victim and could link them to the crime. Bugarin told defendant that
“Royal,” another JBI gang member, was also present. Defendant then saw Royal’s Acura
parked nearby, and agreed to continue with the crime. At that point, defendant saw
Oropeza, the man they “were planning to rob,” come out of his house and go into the
garage. When defendant saw Oropeza, he realized that he was a “[b]ig ass dude.”
         Bugarin then said he was going to “go get him,” and defendant asked “where’s the
strap [gun] at?” Bugarin pulled a .40 caliber firearm out of his waistband. Defendant
asked whose gun it was, and Bugarin stated that it belonged to “Biggie,” another JBI
gang member. Defendant said, “all right.” Bugarin told defendant to “[c]ome on.”
Defendant said that he did not have a gun, and asked “[h]ow the fuck am I going to go
back there fool?” Nevertheless, defendant followed Bugarin while talking on a cell
phone.

                                              3
       Bugarin rushed Oropeza and they began fighting inside the garage. Defendant ran
toward the fight. He gave varying accounts of what happened next. Initially, defendant
said Bugarin shot Oropeza when he ran out of the garage toward defendant. Defendant
claimed that he was still talking on his phone outside the garage at the time. Later in the
interview, defendant stated that he had hung up the phone either during the struggle
between Bugarin and Oropeza or when Oropeza came out. Defendant also stated that he
“tried to run in [as Oropeza] tried to run out.” Deputy Berry asked defendant why he
thought Bugarin went inside the garage by himself with such a big victim, and defendant
replied that it was because “he was thinking that if you’re going to pull out the gun on
him, that guy was going to comply.”
       In addition to playing Deputy Berry’s recorded interview of defendant for the jury,
the prosecution also elicited expert testimony from Berry about the JBI gang. The gang
had 50 to 60 members. Bugarin, defendant, Royal, and Biggie were members.
Defendant had a JBI tattoo on his stomach. According to Berry, the JBI gang was a
ruthless gang with many rivals and a very strong reputation for violence. Berry testified
that the gang’s primary activity was home invasion robberies, particularly when they
believed the victims had a lot of money or a large quantity of narcotics. They also
committed murders and intimidated witnesses. The predicate crimes Deputy Berry
testified to included a multiple murder offense and manslaughter. It was Deputy Berry’s
expert opinion that the murder in this case was committed in association with and for the
benefit of the JBI gang.
       The jury convicted defendant of first-degree murder in violation of Penal Code1
sections 187 and 189. The jury found true the allegations that the murder was committed
for the benefit of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1)(C). Importantly for purposes of this appeal, the jury further found, as the
information charged, that a principal personally used and intentionally discharged a
firearm causing death within the meaning of section 12022.53, subdivisions (b), (c), (d),


1
       All undesignated statutory references that follow are to the Penal Code.
                                             4
and (e)(1). The trial court found true the allegation that defendant had suffered a prior
serious or violent felony within the meaning of sections 667, subdivisions (b) through (i),
and 1170.12 (the Three Strikes law). The court sentenced defendant to a 25 years to life
term for the murder, doubled pursuant to the Three Strikes law, plus a 25 years to life
term pursuant to section 12022.53, subdivisions (d) and (e)(1).


                                     II. DISCUSSION
       Defendant contends the section 12022.53 enhancement term was erroneously
imposed because he was not a “principal” in the murder. He also argues that imposition
of the enhancement violates his right to due process and constitutes cruel and unusual
punishment under the United States and California Constitutions. Defendant further
contends that the prosecutor committed misconduct in closing argument, and that the trial
court erred in failing to instruct the jury that mere presence at the scene of a crime is not
sufficient to establish liability as an aider and abettor. We conclude these arguments lack
merit and affirm the judgment of conviction.


       A.     The Section 12022.53 Firearm Enhancement
       When a principal uses or discharges a firearm in the commission of an offense
enumerated in section 12022.53 and the offense is committed for the benefit of a criminal
street gang, subdivision (e)(1) requires a court to impose an enhancement term on a non-
shooting accomplice if that person is also “a principal in the commission of an
[enumerated] offense.”2 Murder is an enumerated offense. (§ 12022.53, subd. (a)(1).)
Defendant contends that he was not a principal in the commission of the felony murder



2
        Subdivision (e)(1) provides in full: “The enhancements provided in this section
shall apply to any person who is a principal in the commission of an offense if both of the
following are pled and proved: [¶] (A) The person violated subdivision (b) of Section
186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision
(b), (c), or (d).”

                                              5
and the trial court therefore erred in imposing a subdivision (e)(1) enhancement term as
part of his sentence.3
       As a matter of statutory definition, defendant was a principal in the commission of
the felony murder. Parties to a crime are classified as either principals or accessories.
(§ 30.) The difference in classification relates to timing. (See People v. Montoya (1994)
7 Cal.4th 1027, 1039.) Section 31 defines a principal as any person “concerned in the
commission of a crime, whether it be felony or misdemeanor, and whether they directly
commit the act constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission.” (§ 31.) A person who aids a
principal “after a felony has been committed,” by contrast, is an accessory. (§ 32.) The
evidence shows that defendant was concerned in the commission of the felonies in this
case. He was not tried as, or convicted of being, an accessory who provided assistance
only after those felonies were committed. There is no third classification of parties to a
crime under California law.
       Defendant, however, proceeds as if there is a third classification for parties to
felony murder. He correctly notes that principals are subdivided into perpetrators and
aiders and abettors (§ 31), and he argues that he does not fall into either subcategory.
There is no evidence that defendant was the perpetrator of the murder, and he contends he
cannot be an aider and abettor because he did not know of or intend to aid and abet the
murder. He emphasizes the jury made no determination about whether he knew of or
intended to commit the murder because he was found guilty only under a felony-murder
theory. This, of course, is true of all persons who are not the perpetrator of a murder and
are convicted of murder solely under the felony-murder doctrine. Defendant believes
such persons should be designated by a term other than aider and abettor and he supports
his argument with the assertion that our Supreme Court has begun to avoid using the term


3
        Defendant also argues the term “principal” should be read narrowly in the felony-
murder context because treating the non-shooter as a principal would erode the
relationship between criminal liability and moral culpability. We consider this argument
in part C, post.
                                              6
“aid and abet” in felony-murder cases. His chief example is People v. Thompson (2010)
49 Cal.4th 79, 116-177.
       While the court in Thompson occasionally uses the word “accomplice,” the
opinion in fact confirms that “aider and abettor” is an accurate term for a person who is
convicted of felony murder without being the actual killer. We illustrate by quoting in
part the section of the Thompson opinion entitled “Aider and Abettor to Felony Murder”:
“Under the felony-murder rule, an accomplice is liable for killings occurring while the
killer was acting in furtherance of a criminal purpose common to himself and the
accomplice, or while the killer and the accomplice were jointly engaged in the felonious
enterprise. (People v. Pulido (1997) 15 Cal.4th 713, 719.) In order to support
defendant’s conviction as an aider and abettor, therefore, the record must contain
substantial evidence that (a) [the direct perpetrator] committed the robbery (the
perpetrator’s actus reus), (b) defendant knew [the direct perpetrator’s] intent to rob and
intended to assist in the robbery (the aider and abettor’s mens rea), and (c) defendant
engaged in acts that assisted the robbery (the aider and abettor’s actus reus).” (People v.
Thompson, supra, 49 Cal.4th at p. 117 [italics added].) We see nothing in Thompson or
the other cases cited by defendant that undermines the long-standing rule that a defendant
who aids and abets the underlying felony is described and treated as an aider and abettor
of felony murder. Defendant’s argument fails for that reason; while the section 12022.53
enhancement would not apply if defendant were a mere accessory after the fact, the
record demonstrates that he was not a mere accessory but instead was fully “concerned in
the commission of a crime.”


       B.     Jury Instruction on the Section 12022.53 Allegation
       Although he does not present the claim under a separate heading in his brief as
required by California Rules of Court, rule 8.204(a)(1)(B), defendant also appears to
argue the section 12022.53, subdivision (e)(1) enhancement was erroneously imposed
because the jury was not properly instructed that it must find defendant was a principal in
the murder and that the shooter, Bugarin, who was not a defendant in this case, was a

                                             7
principal in a malice murder. Even if we treat the issue as properly before us
notwithstanding non-compliance with the rule, we would conclude there was no error.
Defendant’s argument is premised primarily on his erroneous belief that no one can be a
principal in a felony murder, including the shooter.
       The jurors were instructed with a standard version of CALCRIM No. 1402, which
correctly informed the jurors that the enhancement applied only if they found defendant
“guilty of the crime charged in Count 1.” Because the crime charged in count 1 was
felony murder, a conviction on that charge necessarily means the jury found defendant
was a principal in the felony murder. For reasons we have already discussed, we reject
defendant’s contention that one cannot be an aider and abettor of felony murder.
CALCRIM No. 1402 also required the jury to find that “someone who was a principal in
the crime [i.e., the felony murder charged in Count 1]” discharged a firearm during the
commission of the crime, and the instruction also described what it means for someone to
be a principal in the commission of a crime. The jury was also given a felony-murder
instruction, CALCRIM No. 540B, designed to be used when a co-participant allegedly
committed the fatal act. Thus, the jury necessarily found that Bugarin (the co-participant)
was, like defendant, a principal in the felony murder, and the instructions given ensured
that the jurors made all the requisite findings for the section 12022.53 enhancement to
apply. To the extent that defendant contends section 12022.53, subdivision (e)(1)
requires conviction of the actual shooter, defendant is mistaken. (People v. Garcia
(2002) 28 Cal.4th 1166, 1175.)


       C.     Due Process
       Defendant claims treating him as a principal under section 12022.53 violates the
Due Process Clauses of the Fifth and Fourteenth Amendment to the United States
Constitution because it imposes criminal liability without regard to personal culpability.4

4
       Defendant presents similar contentions in the first section of his opening brief to
support his argument that he should not be treated as a principal in the felony murder. He
claims that imposing a firearm enhancement for murder absent a requirement that a
                                             8
       Generally, due process requires that criminal liability rest on personal guilt;
personal guilt requires “guilty knowledge and intent.” (People v. Castenada (2000) 23
Cal.4th 743, 749, citing Scales v. United States (1961) 367 U.S. 203, 228.) “The
primordial concept of mens rea, the guilty mind, expresses the principle that it is not
conduct alone but conduct accompanied by certain mental states that concerns or should
concern the law.” (People v. Hernandez (1964) 61 Cal.2d 529, 532.)
       With respect to felony-murder culpability, “[t]he purpose of the felony-murder
rule is to deter those who commit the enumerated felonies from killing by holding them
strictly responsible for any killing committed by a cofelon, whether intentional, negligent,
or accidental, during the perpetration or attempted perpetration of the felony. ([People v.]
Burton [(1971)] 6 Cal.3d [375,] 388.) ‘The Legislature has said in effect that this
deterrent purpose outweighs the normal legislative policy of examining the individual
state of mind of each person causing an unlawful killing to determine whether the killing
was with or without malice, deliberate or accidental, and calibrating our treatment of the
person accordingly. Once a person perpetrates or attempts to perpetrate one of the
enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to
such fine judicial calibration, but will be deemed guilty of first degree murder for any
homicide committed in the course thereof.’ (Ibid.)” (People v. Cavitt (2004) 33 Cal.4th
187, 197; accord, People v. Wilkins (2013) 56 Cal.4th 333, 346 [felony-murder rule “does
not take into account the relative culpability of the defendant’s actions or state of
mind”].)




defendant aid and abet the murder (as opposed to the predicate felony) would completely
erode the relation between criminal liability and moral culpability, offend principles of
culpability by adding a consecutive life term even where an accomplice’s discharge of a
gun is unforeseen or unintended, and violate the fundamental principle that penal statutes
must have a mental element that corresponds to culpability. Our resolution of
defendant’s due process claim applies to these claims as well.
                                              9
       Defendant contends that section 12022.53, subdivision (e)(1) contains no mens rea
requirement,5 and he claims he had no culpable mental state related to the murder of
Oropeza. He argues it violates due process to add a consecutive 25-to-life prison term to
his sentence for the unintended and unforeseen happenstance that an accomplice fired a
gun.
       Defendant, however, is not being punished without regard to his personal
culpability or mental state. No defendant can have his sentence enhanced under section
12022.53 for an accomplice’s use of a firearm unless the defendant commits an
enumerated offense with the specific intent to benefit a criminal street gang. (Subd.
(e)(1)(A).) It was essentially undisputed that defendant had such an intent in this case. In
addition, no defendant can be convicted of felony murder as an aider and abettor unless
he has knowledge of and the intent to assist in one of the specified underlying felonies.
Here, defendant’s knowledge of and intent to assist in two such felonies were shown:
burglary and attempted robbery. Furthermore, although knowledge that an accomplice is
armed is not an element of section 12022.53, the evidence in this case demonstrated
defendant did know his accomplice and fellow gang member Bugarin was armed. In fact,
according to defendant’s own admission, he made sure to verify Bugarin was armed
before he (defendant) decided to go forward and participate in the robbery.6




5
       This court has twice rejected the claim that subdivision (e)(1) violates due process
because it imposes an enhancement on an aider and abettor without any requirement that
the aider and abettor know that his accomplice intended to use or discharge a firearm.
(People v. Gonzales (2001) 87 Cal.App.4th 1, 15; see People v. Hernandez (2005) 134
Cal.App.4th 474, 483.)
6
       It was also foreseeable, under the circumstances, that Bugarin would use or
discharge the firearm he brought to facilitate the robbery because the absence of
additional manpower made it more likely that Oropeza might resist. Defendant
understood that Bugarin intended to rely on a display of the firearm to obtain the victim’s
compliance, but remained concerned that Bugarin intended to rob Oropeza without
bringing more people with him, particularly since Oropeza was a “big ass dude.”

                                            10
          We also find it significant that section 12022.53, subdivision (e)(1) is not limited
to the use or discharge of a firearm during a murder. Section 12022.53 enhancements
apply to the use or discharge of a firearm during a robbery as well. (Subd. (a)(4) & (18).)
Defendant’s admissions prove he knew of and intended to assist in an armed robbery and
there can thus be no dispute defendant would have direct personal culpability for the
robbery. If Bugarin had simply discharged the firearm in the commission of the
attempted robbery without harming anyone, defendant would have received a 20-year
enhancement. (Subd. (c).) If Bugarin had inflicted great bodily injury on Oropeza, but
not killed him, defendant would have received the same 25-to-life sentence of which he
now complains. (Subd. (d).) Thus, defendant had the culpable mental state for the
underlying felony of robbery that he contends is lacking from the underlying felony of
killing. Since that culpable mental state would support a 25-to-life enhancement for the
infliction of great bodily injury in the commission of a robbery, it does not erode the
relationship between criminal liability and personal culpability to impose a 25-to-life
enhancement on defendant because Bugarin killed rather than seriously injured Oropeza
during the course of the robbery.7 There has been no violation of defendant’s due process
rights.


          D.     Cruel and Unusual Punishment - Federal
          Defendant contends imposing the section 12022.53 enhancement constitutes cruel
and unusual punishment in violation of the Eighth Amendment to the United States
Constitution.
          During the trial court proceedings, defendant did not argue the section 12022.53
enhancement constitutes cruel and unusual punishment. This issue of whether a sentence
is cruel and unusual punishment is a fact intensive inquiry under both state and federal
law, and is based on the nature and facts of the crime and offender. (People v. Weddle

7
       We note that defendant has not contended that section 12022.53, subdivision
(e)(1) violates due process on its face. He contends that it violates due process as applied
to him.

                                                11
(1991) 1 Cal.App.4th 1190, 1196; see also Solem v. Helm (1983) 463 U.S. 277, 287
[question of disproportionate punishment cannot be considered in the abstract].) It is
forfeited if not raised in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568,
583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see generally People v. Trujillo
(2015) 60 Cal.4th 850, 856 [reaffirming that even constitutional claims can be forfeited];
People v. Scott (1994) 9 Cal.4th 331, 356.) Here, defendant did make a Romero8 motion
to strike his prior conviction under the Three Strikes law, but his only argument for doing
so was the contention that the prior conviction was too old to consider. Thus, he did not
develop facts relating to him individually that would permit a proportionality review.
       Even if defendant’s claim were not forfeited, it would not succeed. The California
Supreme Court has upheld the imposition of a 25-to-life enhancement term for a
defendant who was not the shooter. (People v. Garcia (2002) 28 Cal.4th 1166, 1169-
1170.) Defendant, however, relies on the Supreme Court’s recent opinion in People v.
Banks (2015) 61 Cal.4th 788 (Banks), which considers the requirements of section 190.2,
subdivision (d), a statute that extends the death penalty to aiders and abettors who are
“major participants” in felony murders. Banks does not control the result here; we are not
concerned with the application of section 190.2. However, even assuming for argument’s
sake that the rationale in Banks would apply here because the 25-to-life enhancement is
part of an overall sentence that exceeds defendant’s life expectancy,9 Banks does not
compel the conclusion that defendant’s sentence is unconstitutional.




8
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
9
       Defendant contends his 75-to-life sentence is effectively a life without the
possibility of parole (LWOP) sentence because it exceeds his normal life expectancy. In
juvenile cases, very long sentences with eligibility for parole are treated as “functional”
or “de facto” LWOP sentences if there would be no meaningful life expectancy left when
the offender becomes eligible for parole. (See, e.g., People v. Perez (2013) 214
Cal.App.4th 49, 55-58, and cases cited therein.) Defendant has not cited, nor are we
aware of, any cases applying the de facto LWOP concept to adult sentences.

                                             12
       The Banks court considered the development of case law specific to section 190.2,
subdivision (d)10 and held that a true finding under that subdivision must be supported by
proof that the defendant was a major participant in the crime, as that term is used in
common parlance, and must have acted with “reckless indifference to human life.”
(Banks, supra, 61 Cal.4th at pp. 800-801.) These two elements, major participation and
reckless indifference, create a spectrum of culpability, with on one extreme a mere
getaway driver “like ‘Enmund himself: the minor actor in an armed robbery, not on the
scene, who neither intended to kill nor was found to have had any culpable mental state,”
and on “the other extreme [] actual killers and those who attempted or intended to kill.”
(Id. at p. 800.) To decide where on that spectrum a given defendant falls, our Supreme
Court identified a series of factors courts should consider, namely, the role the defendant
had in planning the crime; the role the defendant had in supplying or using lethal
weapons; the defendant’s awareness of particular dangers posed by the nature of the
crime, weapons used, or the past experience of other participants; whether the defendant
was present at the scene of the killing in a position to facilitate the crime; whether the
defendant’s actions or inaction played a role in the death of a victim; and any facts
concerning what the defendant did after lethal force was used. (Id. at p. 803; see also id.
at p. 801 [“apparent consensus” that substantial participation in violent felony under
circumstances likely to result in loss of life demonstrates reckless indifference to a
significant risk of death].)
       Were we to consider these factors in this case, we would hold defendant is not at
all like a mere getaway driver such as Leon Banks. Defendant was present at the scene of
the robbery in a position to facilitate the crime; he helped plan the robbery and was not
only aware Bugarin was armed but made sure to verify that Bugarin had “the strap”
before executing the plan; he was aware the plan was dangerous because of the chance




10
       Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida (1982) 458 U.S.
782.
                                              13
that Oropeza would resist; and he fled with Bugarin after the use of lethal force rather
than assisting Oropeza or calling for help.11
        There is no question that defendant received a long sentence based on the
sentencing enhancements that the Legislature has seen fit to enact. But defendant’s
circumstances are different from those of the defendant in Banks. We therefore do not
read that decision to authorize reversal of the relevant statutory sentencing enhancements
here.


        E.     Cruel and unusual punishment - California
        Defendant has also forfeited his claim that his sentence is cruel and unusual under
Article I, section 17 of the California Constitution by failing to object on that ground in
the trial court. (People v. Kelley, supra, 52 Cal.App.4th at p. 583; People v. DeJesus,
supra, 38 Cal.App.4th at p. 27.) As we discuss above, defendant did not develop facts
relating to him individually that would permit a proportionality review.
        Even if the claim were not forfeited, it would not succeed on this record.
Defendant relies on People v. Chiu (2014) 59 Cal.4th 155 (Chiu) and People v. Chun
(2009) 45 Cal.4th 1172 (Chun) to argue his sentence for felony murder is cruel and
unusual. Both cases limit liability, and hence punishment, for certain instances of what


11
        That the section 12022.53 enhancement is only part of defendant’s sentence is
further reason why Banks does not help defendant; it undermines defendant’s effort to
treat the section 12022.53 enhancement as the reason why a “de facto” LWOP sentence
was imposed. Unlike a defendant who receives an LWOP sentence under section 190.2,
defendant’s aggregate sentence is a result of four different aspects of wrongdoing the
Legislature has seen fit to punish. He received (1) a 25-to-life base sentence for the
murder, (2) doubled to 50 years to life pursuant to the Three Strikes law because he was a
recidivist, plus a 25-to-life sentence enhancement term imposed because (3) he was a
gang member who (4) committed a felony with a fellow gang member who was armed
with a firearm. The trial court had discretion to reduce defendant’s sentence by striking
his prior conviction if the circumstances warranted it, and defendant does not challenge
the denial of his Romero motion. If the court had stricken defendant’s prior conviction,
defendant would have received a sentence of 50 years to life, the same result he seeks on
appeal by eliminating the section 12022.53 enhancement.

                                                14
defendant describes as “strict liability” for murder. Defendant contends the reasoning in
Chiu and Chun should apply in his case.
       Chiu limits liability for aiders and abettors of premeditated first degree murder,
but only those convicted under the natural and probable consequences doctrine of
liability. The Supreme Court stated: “An aider and abettor’s liability for murder under
the natural and probable consequences doctrine operates independently of the felony-
murder rule. (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) Our holding in this
case does not affect or limit an aider and abettor’s liability for first degree felony murder
under section 189.” (Chiu, supra, 59 Cal.4th at p. 166.) Chiu did not hold, nor do we,
that the natural and probable consequences doctrine mental state requirements apply in
the case of felony murder. An aider and abettor to felony murder does not face the
prospect of increased punishment based on the perpetrator’s unique mental state.
       The Chun decision addresses liability under the second-degree felony-murder rule,
specifically the “merger” doctrine limiting the underlying felonies that may be used to
support a second degree felony murder verdict. As the court explained in Chun, “[t]he
merger doctrine developed due to the understanding that the underlying felony must be
an independent crime and not merely the killing itself.” (Chun, supra, 45 Cal.4th at
p. 1189.) Defendant argues that the rationale of the merger doctrine should apply and
preclude application of section 12022.53 to aiders and abettors to felony murder, but the
concern present in Chun is not present here because robbery and burglary are crimes
independent of Oropeza’s murder. The merger doctrine is also based on the recognition
that it is difficult, perhaps impossible, to commit murder without simultaneously
committing an assault. (Ibid., citing People v. Ireland (1969) 70 Cal.2d 522.) The same
cannot be said of the enhancement at issue here because murders can be committed in
many different ways that do not involve the use of a firearm. Thus, enhancing a sentence
for murder using a firearm need not result in the vast majority of all murderers receiving
an enhancement.




                                             15
       F.     Prosecutorial Misconduct
       Defendant contends the prosecutor told the jury to find defendant committed the
charged home invasion robbery because he was a member of a gang that committed home
invasion robberies; defendant asserts this was misconduct. Respondent counters with the
assertion that defendant has forfeited this claim and with the contention that the
prosecutor’s argument was an appropriate explanation of defendant’s knowledge of how
home invasions were normally committed by the gang and his understanding that Bugarin
was in fact planning such a robbery.


              1.     Forfeiture
       In order to preserve a claim of prosecutorial misconduct for appeal, the defendant
must object and request a curative admonition in the trial court. (People v. Ochoa (1998)
19 Cal.4th 353, 427; People v. Avena (1996) 13 Cal.4th 394, 442.) “A defendant will be
excused from the necessity of either a timely objection and/or a request for admonition if
either would be futile. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
       Defendant identifies two portions of the prosecutor’s closing argument that he
claims constitute misconduct. (See post, at pp. 17-18.) In response to the prosecutor’s
first statement, defense counsel objected that the prosecutor was “arguing his position.”
This was not a sufficient objection to permit us to conclude the argument made on appeal
was preserved by way of objection in the trial court. Defendant did not object at all to the
second statement made by the prosecutor. Defendant also claims it would have been
futile to request a curative instruction because the standard instructions given by the trial
court would not have been sufficient to ameliorate the alleged misconduct. The trial
court, however, could have given a specific curative admonition if warranted, and
defendant gives us no reason to think such a specific instruction would have been
necessarily ineffective. Because defendant has failed to show that an objection and/or
admonition would have been futile, he has forfeited his claim.




                                             16
              2.     Analysis
       Even if defendant had not forfeited his claim of prosecutorial misconduct, the
prosecutor’s argument, considered in context, was proper.
       It is well settled that gang evidence may not be used to show that a defendant has a
criminal disposition and so must be guilty of the charged crimes. (See, e.g., People v.
Albarran (2007) 149 Cal.App.4th 214, 223.) The jury was appropriately instructed that
evidence of gang activity could be used only to decide whether “defendant acted with the
intent, purpose, and knowledge that are required to prove the gang-related crime and
enhancements charged” or to show motive.12
       Defendant claims the prosecutor’s closing argument ran contrary to that
instruction and to the law limiting the use of propensity evidence. He quotes isolated
excerpts of the prosecutor’s argument to support his claim, which we have italicized
when reproducing the relevant quotations below in their fuller context. In the first
excerpt, the prosecutor stated:


       The judge reads you an instruction related to gang evidence. And the judge
       tells you you could certainly use evidence, gang evidence, to infer what?
       Of the defendant’s intent. That’s one of the limitations you have, the
       defendant’s motive. [¶] And certainly [the gang expert] told you what?
       That the JBI gang, what’s their primary activity? What do they do? Home
       invasion robberies. This is what they do. And this is why these individuals
       are tasked.




12
       This rule is based on Evidence Code section 1101 which provides that “evidence
of a person’s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.” (Subd.
(a).) That section permits the use of “character” evidence to prove “some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . . ) other than his or her disposition to commit such an act.” (Subd. (b).)
                                             17
The prosecutor went on to develop his argument, which was that JBI had expertise in
home invasion robberies and planned and prepared for each one. He used JBI’s planning
and preparation to show knowledge and intent on defendant’s part. The prosecutor
argued defendant’s statements showed he had an “intimate knowledge of the preparations
for this job. This means he was a part of it. He knew what was going to happen.” He
continued:


       Again, this is JBI. Their primary activities are to do what? Do home
       invasion robberies. And [defendant] starts to inquire about the tools, the
       resources that are needed to do the home invasion robbery. And what does
       he say? Can’t just be you and me, right? No. It’s that guy Pasias, Cron,
       they are across the street. And [defendant] says well, we can’t hop into
       their car because he knows the victim. . . . So then he’s like no, Royal is
       back there. And what does [defendant] say? All right. Now he’s been
       satisfied, all right. We have the team needed to perform this task.


       This was proper argument, particularly given defendant’s attempt to portray
himself as an uninvolved bystander. The prosecutor was not arguing that defendant
committed the residential robbery because he was a JBI gang member; he was arguing
that defendant knew that Bugarin was planning a home invasion robbery because such
robberies were JBI’s primary activity and he accompanied Bugarin with full knowledge
of what was to occur, and with the intent to assist it. In addition, and in context, the
prosecutor’s argument is also reasonably understood as a permissible effort to reinforce
the evidence supporting the charged gang enhancement allegation. The prosecutor was
required to prove, and argued that he had proven, that defendant was a member of JBI,
JBI committed home invasion robberies and defendant participated in the Oropeza
robbery for the purpose of assisting JBI, an element of the charged gang enhancement.




                                             18
         G.    Present at the Scene Instruction
         The trial court instructed the jury on aiding and abetting pursuant to CALCRIM
No. 401, but did not give a bracketed section of the instruction that states: “If you
conclude that defendant was present at the scene of the crime or failed to prevent the
crime, you may consider that fact in determining whether the defendant was an aider and
abettor. However, the fact that a person is present at the scene of a crime or fails to
prevent the crime does not, by itself, make him or her an aider and abettor.” Defendant
contends the trial court had a sua sponte duty to give this section of the instruction.
         The Bench Notes accompanying CALCRIM No. 401 state that “[i]f there is
evidence that the defendant was merely present at the scene or only had knowledge that a
crime was being committed, the court has a sua sponte duty to give the bracketed
paragraph that begins with ‘If you conclude that defendant was present.’ (People v. Boyd
(1990) 222 Cal.App.3d 541, 557[] fn. 14; In re Michael T. (1978) 84 Cal.App.3d 907,
911.)”
         Defendant contends there was “conflicting evidence” that gave rise to a sua sponte
duty to give an instruction containing the bracketed language quoted above, but he does
not explain what that evidence was. He asserts the prosecutor emphasized defendant’s
presence at the scene in discussing his liability as an aider and abettor. At the pages of
the transcript cited by defendant, however, the prosecutor stated that although planning
for the robbery was done in Pomona, defendant left Pomona and went to Cudahy to take
“direct steps towards this robbery occurring.” This is not a statement that urged the jury
to conclude defendant must have aided and abetted the crime because he was present at
the scene of the crime. Even if the prosecutor had emphasized defendant’s presence, that
would not give rise to a sua sponte duty to instruct. For such a duty to arise, there must
be some evidence that defendant was merely present at the scene, and we see no such
evidence here. Defendant’s own account of events showed that at a minimum he
participated in planning the robbery and agreed to act as a lookout during the robbery.
By his own account, he was assisting in the commission of the crime. Further,
defendant’s movement toward the garage when Bugarin began struggling with the victim

                                             19
shows that his role was not limited to simply being a lookout. Rather, his role
encompassed active involvement in the robbery itself. To be sure, defendant is correct
that the prosecutor argued defendant “never tried to prevent this crime from happening.”
However, this statement was part of the prosecutor’s argument that defendant did not
withdraw from participating in the crime. The prosecutor did not argue that defendant
aided and abetted the crime solely by failing to prevent it. The prosecutor’s argument
accordingly did not give rise to a sua sponte duty to instruct.


                                          DISPOSITION
              The judgment is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                    BAKER, J.
We concur:




       TURNER, P.J.




       KRIEGLER, J.




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