Filed 12/10/14 P. v. Martinez CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B253468

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA361997)
         v.

SANTOS MARTINEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Anne H.
Egerton, Judge. Affirmed.


         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Santos Martinez (defendant) appeals from his conviction
of first degree murder. He contends that the trial court gave numerous erroneous or
ambiguous jury instructions, resulting in the possibility that the jury convicted him of
first degree murder without finding the requisite mens rea. He also contends that his
counsel rendered ineffective assistance to the extent he failed to object or propose
clarifying instructions. We conclude that defendant’s contentions are without merit and
affirm the judgment.
                                     BACKGROUND
Procedural history
       Defendant and codefendant Francisco Gutierrez (Gutierrez) were jointly charged
with the murder of Angel Mendoza Bautista (Bautista), in violation of section 187,
subdivision (a).1 In addition, the information alleged pursuant to section 186.22,
subdivision (b)(1), that the crime was committed for the benefit of, at the direction of,
and in association with a criminal street gang, and that a principal personally discharged a
firearm causing death within the meaning of section 12022.53, subdivisions (b), (c), (d),
(e), and (e)(1). Also, the information alleged that defendant had suffered a prior serious
or violent felony for purposes of both section 667, subdivision (a)(1), and which
constituted a “strike” under the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subd.
(a)-(d).)
       Defendant and Gutierrez were tried together. A jury found them both guilty of
murder as charged and found true the gang and firearm allegations.2 The prosecution
declined to proceed on the prior conviction allegations, and on December 18, 2013, the
trial court sentenced defendant to life in prison with a minimum parole eligibility period
of 25 years for the murder, plus a consecutive term of 25 years to life for the discharge of
a firearm by a principal. The court ordered defendant to pay mandatory fines and fees
and entered a restitution order jointly and severally with Gutierrez. Defendant was given

1      All further statutory references are to the Penal Code, unless otherwise indicated.

2      Gutierrez is not a party to this appeal.

                                              2
credit for 680 actual days of presentence custody. Defendant filed a timely notice of
appeal from the judgment.
Prosecution evidence: the shooting and investigation
       On the evening of August 31, 2007, sometime between 10:00 and 11:00 p.m.,
Abdon Solis and Bautista were waiting outside the Best Buy market on Pico Boulevard
while Abdon’s father, Jorge Solis, was inside buying beer.3 While they were waiting, a
Latino man with tattoos on his neck and wearing a black baseball cap approached. He
asked Bautista, “Where you from?” When Bautista replied, “Drifters,” the man threw a
punch at him. Bautista returned the blow, and the two men fought. Abdon denied any
involvement in gangs or the fight, but testified that Bautista was associated with the
Drifters.
       When Bautista appeared to get the better of his opponent, another man got out of
the driver’s side of a nearby dark colored or black vehicle. The second man wore black
clothing and a black ski mask and was holding a shotgun. Abdon observed that both car
doors were open at that time, but he could not tell whether there were other people in the
car. The second man approached Bautista to within about nine feet of him, and then fired
the shotgun. Abdon turned and ran into the store.
       Best Buy employee Amelia Muniz testified that she was working at one of the
registers near the entrance to the market when she heard two or three gunshots, looked
outside, saw a kind of van parked right in front of the store, and heard a young man
scream that someone had been killed. After calling the police, she went outside, where
she saw the headless victim and a lot of blood on the ground. She also saw a black SUV
leaving at a high rate of speed.
       Later that night, Abdon and Jorge spoke to Officer Tony Rodriguez of the
Los Angeles Police Department (LAPD). Abdon described seeing an SUV approach and
stop in the driveway of the market. He said that the man who fought with Bautista got
out of the driver’s side, whereas the shooter got out of the passenger side. Jorge told

3      To avoid confusion, we refer to Abdon Solis as Abdon and to his father Jorge
Solis as Jorge.

                                             3
Officer Rodriguez that he saw his son run into the market and heard two gunshots; Jorge
then ran outside, where he saw a man wearing dark clothing and a ski mask firing a
shotgun from the area of a black SUV. The man with the shotgun then got into the SUV,
which sped off at a high rate of speed.
       Officers investigating the area found a blue Ford Explorer SUV that had crashed
into a wall in an alley near the Best Buy market. They found no one inside, but observed
that the keys were in the ignition and the air bags had deployed. A more thorough search
of the car revealed, among other things, a cell phone in the center console, two black
baseball caps on the front passenger floorboard, and a social security card in the name of
Pedro Bonilla in the dashboard compartment. Blood was found on the airbags, most of it
on the driver’s side, as well as on the cracked rearview mirror recovered from a door sill,
the driver’s door, the backseat, the front passenger floorboard, the exterior of the left rear
passenger door, and the right rear armrest.
       LAPD Officer George Diego, an officer on the scene after the shooting,
recognized the Ford Explorer from a traffic stop he had conducted earlier that month in
the area of 15th Street and either Mariposa or Kenmore Avenues, inside the territory of
the Playboys gang. Defendant, a member of that gang, was driving the SUV at the time
of the stop. Defendant gave his name as Pedro Bonilla and produced a California driver’s
license in that name.4 Officer Diego still had a copy of the ticket he gave defendant and
he passed that information on to other officers.
       Investigators found two spent Schonebeck shotgun shells near Bautista’s body. A
part of a shotgun shell (a “wad”) and slug fragments were also found near the body. The
medical examiner Dr. Juan Carrillo recovered shotgun fragments and a wad from inside
Bautista’s body when he performed the autopsy. Dr. Carrillo testified that Bautista died
of multiple shotgun wounds. He was struck three separate times: one in the upper right


4       The former owner of the Explorer, Jose Parraga, testified he sold the car to Pedro
Bonilla in May 2007. The buyer was to make monthly payments. The last payment was
made August 15, 2007, not long before Parraga was notified that the car had been towed
to a storage yard.

                                              4
back; one in the left lower back; and a third in the head. The shooter was within three or
four feet when he inflicted one of the back wounds, and very close when he inflicted the
head wound. The shotgun barrel touched or nearly touched the victim’s head when the
shotgun was fired. Each of the back wounds would have been fatal, and it was apparent
to Dr. Carrillo that the head wound was the last to be inflicted. Dr. Carrillo inferred from
the direction of the scattering of the victim’s brain matter that his head was supported by
the ground; thus Bautista was already incapacitated by the back wounds and lying on the
ground.
       One month after the shooting, a shotgun was found by residents in their little used
garage on Magnolia Avenue, about a quarter mile from the Best Buy Market. They
called the police, and LAPD Officer Anne Michelle Green and her partner collected the
gun. When Officer Green examined the shotgun, she found a spent 12-gauge
Schonebeck shell inside. She testified that in her experience most shootings were done
with handguns; shotgun shootings were rare. The shotgun was later inadvertently
destroyed, but not before it was swabbed for DNA.
       DNA was extracted from the headbands of the two baseball caps and the blood
found in the SUV, as well as from the recovered shotgun. Defendant’s DNA matched
that found on one of the caps, and Gutierrez’s DNA matched that found on the other cap.
DNA extracted from the blood found on the airbags, the rear window sill, and broken
rearview mirror (item Nos. 26-31) matched defendant’s DNA. The DNA extracted from
blood in the backseat (item Nos. 32-35) matched Gutierrez’s DNA. The DNA extracted
from each blood item was from a single source, whereas the DNA on the caps and the
shotgun came from more than one contributor. The analysis of the DNA extracted from
the caps showed that Gutierrez and defendant were the major contributors to the
respective caps. The analysis of the shotgun resulted in a partial profile that matched part
of Gutierrez’s profile, and just one in one million would do so.
       Defendant proved difficult to locate and was finally taken into custody on April
30, 2009. He was charged with an unrelated crime and interviewed by Detective Gilbert
Alonso, the investigating officer in this case. Defendant told Detective Alonso that he


                                             5
had been aware that the police were looking for him since the day after his car had been
stolen. Defendant claimed he was near Pico Boulevard and Fedora Street when members
of a different gang pulled up in a white van, got out armed with bats, beat him, and took
his car. Defendant admitted that he never reported the car theft or the beating.
       Detective Alonso placed defendant in a jail cell equipped with a recording device.
Excerpts of recorded conversations were played for the jury. Defendant told a cellmate
that he knew he was “fighting a murder case” and that the police had obtained his DNA
and his car when he crashed it and bled. He explained: “That same day that I did . . . that
I pulled the job, fool, the cops were following me. So I crashed my car, fool, but I was
able to get the fuck outta there, but I left blood in the car and they just caught me.”
Asked where he was from, defendant replied that he was with the Playboys on Pico
Boulevard and Vermont Avenue. Defendant said that the police did not have the gun,
and added: “That’s why I told the detectives, ‘No way! They fucked me over. Some
guys took my car and I don’t know what the fuck they went and did.’ And they don’t
believe me, fool. And he says, ‘What . . . do you mean they stole it from you if you -- we
found blood in your car?’ So I said, ‘Well I don’t know. Cuz these guys, they . . . they
beat me up -- I said -- Maybe there was some blood left there in my car,’ I said. The . . .
detectives don’t believe me, fool.”
Gang evidence
       LAPD Officer Nicholas Gallego testified that while working in a gang assignment,
he investigated the Playboys gang and served members with gang injunctions that
prohibited them from breaking any law and limited their association with other members
of a criminal street gang. Officer Gallego had met Gutierrez once before, knew him to be
a member of the Playboys gang, and had served him with an injunction.
       The location where Officer Diego stopped the Ford Explorer and issued defendant
a traffic citation on August 4, 2007, was in the heart of the Playboys gang territory.
Officer Diego testified that he was able to identify defendant as a gang member during
that stop, either because defendant admitted membership in the Playboys gang or because
of his tattoos.


                                              6
        In 2007, LAPD Officer Allan Corrales was assigned to a gang investigation team
which focused on the Playboys street gang. On September 22, 2007, he and Officer
Michael Boyle responded to a gang disturbance call at 11th Street and Kenmore Avenue
where he saw Gutierrez with another gang member, Manuel Garcia, throwing alcoholic
beverage containers in public. Officer Boyle was aware that Gutierrez had been served
with the gang injunction, and had prior contacts with Gutierrez during which Gutierrez
had admitted to being a member of the Playboys gang, with the moniker, “Blanco.” One
such prior contact was in front of Gutierrez’s home on Fedora Avenue, where Officer
Boyle saw Gutierrez’s tattoos: three dots under his right eye; a Playboy bunny on his
right hand; and the name of the gang on his stomach. Officer Boyle knew Gutierrez to be
a member of the CLS or Chicos Locos clique, which was a subgroup of the Playboys
gang.
        Detective Alonso took photographs of the cell phone found in defendant’s SUV
after the shooting. He showed the jury the writings and images on the phone: “Los
Angeles” with a backward N and the number 5150; a Playboy bunny smoking a stogie or
cigarette; the letters D, K, and S, signifying “Dukes,” with “L.A.” inside the D; the Los
Angeles area code, 213; a rabbit; “Fedo” (short for Fedora); “Bam, bam”; “Fuck the
rest”; and “187, police.” Detective Alonso explained that “Pico y Fedora” was the name
of a clique of the Westside Playboys, and that 187 referred to Penal Code section 187,
which defines murder.
        LAPD Officer Shane Bua testified as the prosecution’s gang expert. He was
regularly assigned to monitor gangs, and had training and experience in the culture of
Hispanic gangs, especially the Playboys. Officer Bua described the Playboys territory,
which changed occasionally, but remained centered near Pico Boulevard, Fedora Street,
and Normandie Avenue. He explained why territory was so important to gangs: making
other gangs afraid to enter its territory elevated the gang’s status and prevented narcotics
sales by anyone unaffiliated with the gang. Tagging and graffiti were intended to remind
rival gangs of the boundaries, rather like gang street signs. The Drifters gang was one of
the main rivals of Playboys. On August 31, 2007, there were over 600 documented


                                              7
members of the Playboys gang and its cliques, and at least 200 of them were then active
or semi-active. Violence was an everyday part of gang life. It was used to intimidate
enemies and the community, in order to discourage the reporting of crimes or other gang
activity. Committing violent acts made them look strong, and encouraged other gangs to
become their allies.
       In Officer Bua’s opinion, the Playboys gang was an active criminal street gang
whose primary activities were narcotics sales, robberies, assaulting rivals, witnesses, and
others, extortion, tagging, assaults with a deadly weapon, murder, and coming together to
intimidate the community. Weapons commonly used were knives, bats, handguns,
shotguns, rifles, and vehicles. Officer Bua produced the certified conviction records of
two Playboys gang members: Juan Carlos Delgado (Juan), who committed an assault
with a deadly weapon in 2005, and Sergio Delgado (Sergio), who was a felon in
possession of a firearm in 2005. Officer Bua was acquainted with both men and knew
them to be Playboys gang members. The assault with a deadly weapon occurred in an
area claimed by the Playboys, when several Playboys gang members encountered a
person who was not a gang member, and Juan “hit him up” by asking, “Where are you
from?” Officer Bua explained that asking someone to name his neighborhood or gang
affiliation was the ultimate gang challenge, and in that case, when the person replied that
he was not a gang member, Juan and his fellow Playboys gang members robbed him at
gunpoint and physically assaulted him. Sergio was considered one of the most active,
hardcore Playboys gang members at the time of his crime. He had multiple gang related
tattoos, which only active gang members were allowed to have, as they signified that
work had been performed for the gang.
       The Playboys gang’s common signs and symbols included a hand sign consisting
of bunny ears formed the with the ring and middle fingers. Officer Bua identified a
photograph of defendant with visible tattoos displaying a Playboys hand sign. He
explained that facial tattoos indicated a very high level of dedication to the gang, as they
were meant to intimidate people and expose the member to the gang’s enemies. Officer
Bua was acquainted with defendant prior to the shooting. He was also familiar with


                                              8
defendant’s tattoos, as photographs of them were posted on the station bulletin board
during 2008. Defendant’s tattoos included a face wearing a Fedora on the back of his
head with two guns and the words “Fuck L.A.P.D.,” Playboy bunny symbol on his arm,
and the letters P, B, and S, meaning Playboys, between the bunny ears. In Officer Bua’s
opinion, on August 31, 2007, defendant was an active member of the Playboys gang and
he belonged to the Dukes clique.
       Officer Bua was also well acquainted with Gutierrez. In Officer Bua’s opinion,
Gutierrez was also an active Playboys gang member at the time of the shooting, and a
member of the Chicos Locos clique. Officer Bua explained that members of different
Playboys cliques were known to associate with one another and to commit crimes
together. In 2008, Gutierrez told Officer Bua that he had been a Playboys gang member
for about four years, and other gang officers reported contact with Gutierrez since 2004.
Officer Bua identified photographs of Gutierrez’s gang related tattoos: Playboys related
tattoos on his abdomen and hand, and three dots next to one of his eyes, which was a
gang expression meaning “my crazy life.”
       The hub of Drifters territory was the neighborhood surrounding Pico Boulevard
and Magnolia Street. This neighborhood shared some middle and high schools with
Playboys territory. At the time of the shooting the Playboys gang and the Drifters were
involved in an ongoing struggle for control of the schools, resulting in fights designed to
make students want to join the stronger gang and afraid to join the weaker gang. In
August 2007, the Playboys gang was dominating the Drifters. Playboys territory was
vast compared to the Drifters’s territory, and Drifters were victims about five times more
often than Playboys.
       Officer Bua explained that the term “going on a mission” and “putting in work”
meant going out in association with fellow gang members to do something to benefit the
gang, such as going into rival territory to commit crimes, tag, or physically assault the
enemy. Each gang member would be assigned a role to play on the mission, such as the
getaway driver, the tagger, the robber, or the keeper of the firearm with the responsibility
to protect others on the mission. Anyone on the mission who failed to “step up” and


                                             9
fulfill his role could suffer great consequences within the gang. Gang members on
missions in rival gang territory went in groups for the backup and camaraderie, and
because it was more intimidating to their victims.
         As a general rule, gang members took weapons with them on missions, and it
would be unlikely for anyone in the car not to know when someone was armed. Officer
Bua explained that many gang members had told him at various times that it was a matter
of respect to inform a fellow gang member about the presence in the car of a concealed
firearm, a large amount of narcotics, or other item that could get one in trouble with the
police if stopped. It would then be up to the individual to decide whether he wanted to be
there.
         Officer Bua also explained the very important concept of respect in gang culture.
Gang members equated fear with respect, and thus earned respect by committing crimes
and by dominating and victimizing rival gangs. Individual gang members earned the
respect of their gang by committing crimes, and the more hardcore the crimes, the greater
the respect for the gang and the individual member within the gang. A rival gang
member would be considered completely disrespectful if he came into the gang’s territory
without just passing through. Starting a fistfight with a rival in the rival’s territory would
also be a sign of disrespect, and losing the fight would cause the loser’s gang to appear
weak, which would result in a loss of respect. Being disrespected or losing respect would
present a challenge to the gang member and could result in physical or verbal retaliation;
he would want to gain back the gang’s respect by any means necessary.
         Officer Bua gave his opinion that the following hypothetical facts would describe
an activity that would benefit a gang: “[T]wo or more gang members from Playboys
went into territory for Drifters and one of the occupants of that car had a shotgun and a
ski mask going into that rival territory, one of the occupants of the car got out and said to
a young man on the sidewalk, ‘Where are you from?’ the young man responds, ‘Drifters,’
and a fistfight follows in which the Drifters gang member is winning the fistfight and
another occupant of the car gets out with a shotgun and shoots and kills the Drifters gang
member.” He explained that going on a mission to challenge a rival in his territory,


                                             10
particularly armed with a very visible weapon such as a shotgun, and then killing the rival
to prevent him from winning the fight, would demonstrate to the rival gang and the
community that the Playboys gang was incredibly bold and to be feared. This enhanced
reputation would benefit the gang by enabling its members to get away with committing
more crimes. The shooter would also elevate his status within the gang by showing his
willingness to commit murder to protect his fellow gang member.
       Officer Bua testified that violence would be the expected result of going on a
mission in rival gang territory. Gang members expect rivals to defend their territory from
those who enter it to commit crimes, and calling out a rival gang member in the rival’s
territory could easily lead to an escalation in violence.
       The defense called no witnesses.
                                       DISCUSSION
I. Murder as natural and probable consequence
       In a supplemental opening brief submitted after the recent decision in People v.
Chiu (2014) 59 Cal.4th 155 (Chiu), defendant contends that the trial court erroneously
instructed the jury that it could find defendant guilty of first degree murder as an aider
and abettor, based upon the natural and probable consequences doctrine.
       A. Applicable legal principles
       “All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission . . . are
principals in any crime so committed.” (§ 31.) “[A] person [directly] aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and [with] (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) “[U]nder the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended crime, but also ‘for any other offense
that was a “natural and probable consequence” of the crime aided and abetted.’
[Citation.] Thus, for example, if a person aids and abets only an intended assault, but a


                                              11
murder results, that person may be guilty of that murder, even if unintended, if it is a
natural and probable consequence of the intended assault. [Citation.]” (People v. McCoy
(2001) 25 Cal.4th 1111, 1117 (McCoy).)
       In Chiu, our Supreme Court held “that an aider and abettor may not be convicted
of first degree premeditated murder under the natural and probable consequences
doctrine. Rather, his or her liability for that crime must be based on direct aiding and
abetting principles. [Citation.]” (Chiu, supra, 59 Cal.4th at pp. 158-159, italics added.)
The court did not disapprove use of the doctrine as it relates to second degree murder. It
explained: “In the context of murder, the natural and probable consequences doctrine
serves the legitimate public policy concern of deterring aiders and abettors from aiding or
encouraging the commission of offenses that would naturally, probably, and foreseeably
result in an unlawful killing. A primary rationale for punishing such aiders and abettors
-- to deter them from aiding or encouraging the commission of offenses -- is served by
holding them culpable for the perpetrator’s commission of the nontarget offense of
second degree murder. [Citation.] It is also consistent with reasonable concepts of
culpability.” (Id. at p. 165.)
       B. Instructions given
       We have reviewed the instructions given by the trial court and find them deficient.
Here, the jury was instructed that it could find defendant guilty of murder under two
alternate theories of aiding and abetting liability. First, it was instructed with CALCRIM
No. 401 that defendant was guilty if he directly aided and abetted the shooter in the death
of Bautista. Second, the jury was instructed with CALCRIM No. 403 that defendant
could be found guilty of murder based on aiding and abetting a target crime that had
murder as a natural and probable consequence. The jury was also instructed that in order
to find defendant guilty of first degree murder, it had to find that he acted willfully,
deliberately, and with premeditation. The jury did not submit any note or request
indicating that it was concerned about the different mental states of the shooter or aider
and abettor.



                                              12
       The instructions given were deficient in that they failed to specifically inform the
jury that it could not find defendant guilty of first degree premeditated murder under the
natural and probable consequences doctrine. The absence of that instruction means that if
the jury used the natural and probable consequences theory to return the first degree
murder conviction, it was in error. (Chiu, supra, 59 Cal.4th at pp. 158-199, 166.)
       C. Evidence and argument
       Defendant contends that the prosecutor caused confusion by arguing that the jury
could convict him of murder under the natural and probable consequences doctrine. In
fact, both the prosecutor’s arguments and the evidence support a finding, beyond a
reasonable doubt, that the jury based its first degree murder verdict on one of two valid
theories of liability: that defendant directly aided and abetted the crime of premeditated
first degree murder, or that defendant was guilty of first degree murder under a theory of
conspiracy.
       The prosecutor did not argue that the natural and probable consequences doctrine
applied to premeditated first degree murder. Instead she argued there were three theories
of liability available to convict the driver, whom she argued was defendant, of murder:
conspiracy; aiding and abetting murder; or aiding and abetting an assault or battery,
which had murder as a natural and probable consequence. She argued that direct aiding
and abetting was the primary theory. That the shooter intended to kill Bautista, that
defendant was one of the other gang members with the shooter, and that he shared the
shooter’s intent to kill. The prosecutor clearly explained that if the jury determined that
the codefendants committed murder, it should go on to determine whether they “intended
to kill Angel Bautista.” The prosecutor argued that to find that the shooter and “the other
people” with him committed first degree murder, the jury would have to find not only
that they shared that intent but also that the murder was willful, deliberate, and
premeditated.
       Here the evidence demonstrated that defendant, an admitted Playboys gang
member, drove his vehicle into rival gang territory, accompanied by Gutierrez and
another Playboys gang member, where they stopped the car, got out and immediately


                                             13
issued a gang challenge to Bautista. Defendant then engaged in a fistfight with Bautista.
When Bautista bested defendant, Gutierrez shot Bautista with a shotgun in fulfillment of
the purpose of the encounter: to do violence to a rival gang member.
       The prosecutor then argued the natural and probable consequences theory of
aiding and abetting liability, stating, “But in this case, there’s some evidence to show,
‘Hey, what we’re going to do is we’re going to see what we can get. We’re going to
inflict some violence here. We’re going to go on a mission, we’re going to do our thing,
beat down a Drifters gang member.’”
       After final arguments, the jury sent out notes requesting the definition of second
degree murder and intent to kill. The court read additional language from revised
versions of CALCRIM Nos. 520 and 521, explained that any murder that is not murder in
the first degree as defined in CALCRIM No. 521 is murder in the second degree, and
instructed that intent to kill should be understood in the ordinary, everyday meaning of
the words. The court sent in written copies of the revised versions of the full instructions.
       Thus counsel’s arguments and the instructions made clear that the jury could not
find defendant guilty of first degree murder unless he harbored the required mental state.
“It is fundamental that jurors are presumed to be intelligent and capable of understanding
and applying the court’s instructions. [Citation.]” (People v. Gonzales (2011) 51 Cal.4th
894, 940.) We conclude that there is a basis in the record to find that the verdict was
based on a valid ground.
       As stated in Chiu, the relevant test of prejudice is:
              “When a trial court instructs a jury on two theories of guilt, one of
       which was legally correct and one legally incorrect, reversal is required
       unless there is a basis in the record to find that the verdict was based on a
       valid ground. [Citations.] Defendant’s first degree murder conviction must
       be reversed unless we conclude beyond a reasonable doubt that the jury
       based its verdict on the legally valid theory that the defendant directly aided
       and abetted the premeditated murder. [Citation.]”

(Chiu, supra, 59 Cal.4th at p. 167, citing People v. Chun (2009) 45 Cal.4th 1172, 1201,
1203-1205 (Chun).)


                                              14
       In Chun, the court explained that the test for prejudice in the context of
instructional error that presents an invalid theory to the jury is as follows: “‘The error in
the present case can be harmless only if the jury verdict on other points effectively
embraces this one or if it is impossible, upon the evidence, to have found what the verdict
did find without finding this point as well.’ [Citation.]” (Chun, supra, 45 Cal.4th at p.
1204, citing California v. Roy (1996) 519 U.S. 2, 7.) However, the court expressly noted
that it was not holding that this test was the only way of demonstrating harmless error.
(Chun, supra, at pp. 1204-1205.)
       In this case, the prosecutor’s arguments and the evidence leaves no reasonable
doubt that the jury based its first degree murder verdict on one of two valid legal theories:
that defendant directly aided and abetted the crime of first degree murder, or that
defendant was guilty of first degree murder under a conspiracy theory.
II. Involuntary manslaughter
       Defendant contends that the trial court erred by failing to instruct the jury sua
sponte regarding involuntary manslaughter as a lesser included offense of murder.
Defendant contends that his defense at trial was that he was not the shooter and did not
share the shooter’s intent to kill, but intended only to commit an assault and that murder
was not reasonably foreseeable and thus not a natural and probable consequence of his
assault.
       Involuntary manslaughter is an unlawful killing “in the commission of a lawful act
which might produce death, in an unlawful manner, or without due caution and
circumspection.” (§ 192.) “Generally, involuntary manslaughter is a lesser offense
included within the offense of murder. [Citation.] Due process requires that the jury be
instructed on a lesser included offense only when the evidence warrants such an
instruction. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)
       Defendant cites the principle that where a lesser offense, but not the greater, is a
reasonably foreseeable consequence of the crime originally aided and abetted, the trial
court must instruct the jury that it may find a defendant guilty of the lesser offense, even
if it determined the perpetrator was guilty of the greater. (People v. Woods (1992) 8


                                             15
Cal.App.4th 1570, 1585-1588.) Defendant argues that the evidence was such that a
reasonable jury could conclude that he committed no more than a misdemeanor assault,
and that the natural and probable consequence of such an assault was involuntary
manslaughter.
       A natural and probable consequence is one that was reasonably foreseeable under
all the circumstances. (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).)
Reasonable foreseeability is determined under an objective standard. (Chiu, supra, 59
Cal.4th at p. 161.) When the evidence demonstrates that a defendant committed a
deliberate criminal act, not simply a criminally negligent act, and under all the
circumstances murder was reasonably foreseeable, the trial court has no sua sponte
obligation to give an involuntary manslaughter instruction. (People v. Huynh (2002) 99
Cal.App.4th 662, 679.)
       A shooting death is often a reasonably foreseeable consequence of a gang
confrontation. (See Medina, supra, 46 Cal.4th at pp. 925-926.)5 Here, substantial
evidence showed that defendant went with at least one other gang member on a “mission”
in rival gang territory.6 The Playboys’s mission in this case was apparently to assault a
rival gang member as the driver pulled up near Bautista and defendant or other occupant
of the car immediately began the assault. In gang culture, violence is a reasonably
expected outcome of such a mission, and defendant’s gang was an active criminal street
gang whose primary activities included assaults with a deadly weapon and murder.

5     We decline defendant’s invitation to adopt the Medina dissent’s criticism of this
observation by the majority. (See Medina, supra, 46 Cal.4th at pp. 932-933 (dis. opn. of
Moreno, J.).)

6      We also reject any suggestion that the gang expert’s testimony should be
discounted because it was “generic” and did not include an opinion regarding defendant’s
own actions or intent. Officer Bua testified as an expert not only in Hispanic gang
culture generally, but also with special expertise and experience in the culture of the
Playboys gang. Any opinion regarding defendant’s state of mind would not have been
admissible, but expert testimony regarding gang culture and the defendant’s gang can
provide substantial evidence of a gang motive. (See People v. Vang (2011) 52 Cal.4th
1038, 1048-1049; People v. Albillar (2010) 51 Cal.4th 47, 63.)

                                             16
Defendant and his companions must have expected gun violence, as one of them, wearing
black clothing and a black ski mask, was armed with a shotgun.
       Defendant contends that there was no convincing evidence that he knew his
companion was armed. We disagree. Defendant himself suggested otherwise when he
admitted in his recorded jailhouse conversation that he had “pulled the job,” crashed his
car and left blood, and knew that the police did not have “the gun.” Further, if the trier of
fact assumed that defendant failed to notice his companion’s black clothing and ski mask,
it is hard to imagine that such an obvious weapon as a shotgun, was not visible to all of
the participants in the mission. Thus, any one of them could have reasonably foreseen a
shooting the result of an intentional killing; and indeed, such evidence strongly suggests
that all of the gang members in the car were subjectively aware of such an eventuality.
We conclude that under such circumstances, a reasonable person would have foreseen an
intentional killing as a probable consequence of the mission and the assault on Bautista.
As the evidence failed to show that the greater offense (murder) was not reasonably
foreseeable, the trial court had no sua sponte duty to instruct the jury regarding
involuntary manslaughter as a lesser included offense. (See People v. Huynh, supra, 99
Cal.App.4th at p. 679.) Moreover, if the trial court erred, any such error would be
harmless beyond a reasonable doubt, as “‘the factual question posed by the omitted
instruction was necessarily resolved adversely to the defendant under other, properly
given instructions’ [citation].” (People v. Prettyman (1996) 14 Cal.4th 248, 276.) As
discussed above, we are convinced beyond a reasonable doubt that the jury properly
reached their verdict under either a direct aiding and abetting theory or one based on
conspiracy. We are thus precluded from finding that manslaughter, instead of murder,
was a natural and probable consequence of the initial assault. Therefore, there is no
prejudice resulting from the failure to instruct the jury on involuntary manslaughter.
III. CALCRIM Nos. 400 and 401
       Defendant contends that the trial court erred in instructing the jury with regard to
direct aiding and abetting with CALCRIM Nos. 400 and 401, because the two
instructions failed to state that an accomplice can be found guilty of a lesser crime than


                                             17
the perpetrator.7 Defendant acknowledges that he did not object to the instructions, but
contends that we should review the issue as the error affected his substantial rights. (See
People v. Famalaro (2011) 52 Cal.4th 1, 35; § 1259.) We have reviewed the instructions
and defendant’s arguments, and conclude that the contention lacks merit.
       Defendant notes that in McCoy our Supreme Court held that in murder cases not
based on the natural and probable consequences doctrine, the aider and abettor may be
found guilty of a lesser offense if he did not know or share the murderous intent of the
actual perpetrator. (McCoy, supra, 25 Cal.4th at p. 1118 & fn. 1.) Defendant relies on
cases in which former CALCRIM No.400 was found to be misleading in some
circumstances because it instructed that an aider and abettor was “equally guilty” as the
perpetrator, which might lead a jury to conclude that any aider and abettor is necessarily
guilty of the same offense as the perpetrator regardless of the aider and abettor’s
particular state of mind. (See, e.g., People v. Nero (2010) 181 Cal.App.4th 504, 518;
People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
       Although the “equally guilty” language caused CALCRIM No. 400 to be
misleading and incomplete in some cases, it correctly stated the law. (People v. Loza
(2012) 207 Cal.App.4th 332, 349-350; People v. Lopez (2011) 198 Cal.App.4th 1106,


7       The trial court instructed the jury with the revised CALCRIM No. 400 as follows:
“A person may be guilty of a crime in two ways . . . . One, he may have directly
committed the crime. I will call that person the perpetrator. Two, he may have aided and
abetted a perpetrator who directly committed the crime. A person is guilty of a crime
whether he committed it personally or aided and abetted the perpetrator. Under some
specific circumstances, if the evidence establishes aiding and abetting of one crime, a
person may also be found guilty of other crimes that occurred during the commission of
the first crime.” The relevant portion of CALCRIM No. 401 was as follows: “To prove
that the defendant is guilty of a crime based on aiding and abetting that crime, the People
must prove that: one, the perpetrator committed the crime; two, the defendant knew that
the perpetrator intended to commit the crime; three, before or during the commission of
the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
and four, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s
commission of the crime. Someone aids and abets a crime if he knows of the
perpetrator’s unlawful purpose and he specifically intends to and does, in fact, aid,
facilitate, promote, encourage or instigate the perpetrator’ s commission of that crime.”

                                             18
1118-1119 & fn. 5; see People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 433-
434 [former CALJIC No. 3.00].) As the jury in this case was given revised instructions
without the “equally guilty” language, the instructions were not misleading.
       Nevertheless, defendant contends that the jury was “essentially instructed” that it
could find him guilty of first degree murder as an aider and abettor based upon the
perpetrator’s premeditated intent to kill, rather than defendant’s own intent. He argues
that CALCRIM No. 401 created this confusion by referring generally to “the crime” and
“the defendant,” and by failing to explain the particular crime, degrees, and required
mens rea until the court read CALCRIM Nos. 520 and 521. Defendant also argues that
the trial court further erred by instructing: “Unless I tell you otherwise, all instructions
apply to each defendant . . . .”
       Defendant’s argument is unclear, but he appears to suggest that although the trial
court did, in fact, instruct the jury as to the elements of first and second degree murder
and the required mens rea for first degree murder, it should have read the instructions in a
different order, combined them with the aiding and abetting instructions, added different
or less ambiguous language, and perhaps even directed a finding that defendant was not
the shooter. In essence, defendant appears to think the jury was incapable of
understanding its instructions or correlating them with other instructions. On the
contrary, as we have previously observed, “[j]urors are presumed able to understand and
correlate instructions and are further presumed to have followed the court’s instructions.
[Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) If defendant wished
clarification, different language, or additional, pinpoint instructions, they should have
been requested in the trial court. As the instructions given were correct in the law on this
issue and responsive to the evidence, the trial court had no duty to give additional
clarifying or amplifying instructions absent a request. (People v. Mayfield (1997) 14
Cal.4th 668, 778.)
       In any event, we find there was no reasonable likelihood that the jurors were
misled by the instructions and that any error would have been harmless under any
standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a


                                              19
reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [better result not
reasonably probable].) Despite defendant’s claim that there was minimal evidence that
he shared the shooter’s premeditated intent to kill, we find such evidence overwhelming.
       Planning suggests premeditation and deliberation (People v. Mendoza (2011) 52
Cal.4th 1056, 1069), and may be reasonably inferred from evidence that the defendants
armed themselves before the shooting. (See, e.g., People v. Caro (1988) 46 Cal.3d 1035,
1050; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.) Defendant’s knowledge of
the presence of the firearm may reasonably be inferred from the fact a shotgun is a large,
visible weapon; from defendant’s admission that he pulled a job with a gun just before
crashing his car; and from the gang expert’s testimony that gang members are generally
armed for missions in rival territory and inform one another when there is a firearm in the
car. Further, defendant accompanied at least one other gang member, Gutierrez, and
there was expert testimony that gang members generally understand that the firearm will
be used when a fellow gang member is threatened with harm.
       Motive also implies premeditation. (People v. Mendoza, supra, 52 Cal.4th at p.
1069.) Defendant’s facial tattoos showed him to be a dedicated member of the Playboys,
an active criminal street gang whose primary activities included murder, assault with a
deadly weapon, and assaulting rival gang members. Motive in gang shootings is
reasonably inferred from hatred felt for rival gang members. (People v. Sanchez, supra,
26 Cal.4th at p. 849; People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002.) Defendant
showed his contempt for Bautista, a rival gang member, by assisting his fellow gang
members in challenging and assaulting him in his own gang’s territory.
       These circumstances indicate that defendant was on a preplanned gang mission to
challenge and shoot a rival gang member, and militate against a finding that defendant
merely happened upon Bautista and engaged in only a simple assault. It is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty of first degree
murder even if the trial court had read the instructions in a different order or explained in
other or additional language that defendant must have shared the shooter’s premeditated
intent to kill Bautista.


                                             20
IV. Assistance of counsel
       Defendant contends that if this court finds that his trial counsel failed to preserve
any of the instructional errors for review, such failure has resulted in the denial of his
right to effective assistance of counsel granted under the United States and California
Constitutions. After reviewing defendant’s claims of instructional error on the merits, we
found that defendant has not been prejudiced by any language or absence of language in
the challenged instructions. We thus reject defendant’s claim of ineffective assistance of
counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues).)
V. CALCRIM No. 416: uncharged conspiracy instruction
       Defendant takes the position that the trial court erred in giving an uncharged
conspiracy instruction because conspiracy was not supported by substantial evidence.8
       Evidence of an uncharged conspiracy is admissible as an alternate theory of
accomplice liability. (People v. Valdez (2012) 55 Cal.4th 82, 149-150, 153-154.) A
conspiracy is an express or tacit agreement between two or more persons to commit any
crime, followed by an overt act committed by at least one of them for the purpose of
furthering the object of the agreement. (People v. Morante (1999) 20 Cal.4th 403, 416.)
To be entitled to conspiracy instructions, the prosecution need only make a prima face
showing of the existence of the conspiracy, which may be done with any competent
evidence including circumstantial evidence. (Rodrigues, supra, 8 Cal.4th at p. 1134.)
“Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an
inference that the parties positively or tacitly came to a mutual understanding to commit a
crime. [Citation.] . . .’ [Citation.]” (Id. at p. 1135.)
       Defendant complains that there was no direct evidence that he knew one of the
occupants of his car was armed, and he contends that the only other evidence relied on by
the prosecution was generic gang evidence from which the prosecutor invited
speculation. Direct evidence was not required. (Rodrigues, supra, 8 Cal.4th at p. 1134.)

8     The trial court read CALCRIM Nos. 416 (uncharged conspiracy) and 417
(coconspirator liability).

                                               21
The gang testimony and the evidence of planning and motive which have been previously
summarized as demonstrating defendant’s premeditated intent to kill was more than
adequate for a prima facie showing of the existence of the conspiracy. While gang
association alone does not prove a criminal conspiracy, it is one of the circumstances that
may be considered along with other evidence. (People v. Superior Court (Quinteros)
(1993) 13 Cal.App.4th 12, 20-21.) “‘The existence of a conspiracy may be inferred from
the conduct, relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy. [Citations.]’ [Citation.]” (Rodrigues, supra, 8 Cal.4th at
p. 1135; see also People v. Maciel (2013) 57 Cal.4th 482, 517-518 [agreement may be
inferred from fact that alleged conspirators were alone together just before crime].)
       Here, defendant and Gutierrez were in the same criminal street gang whose
primary activities included assaults with a deadly weapon, murder, and assaulting rival
gang members; defendant and Gutierrez went together in defendant’s car to rival gang
territory; one of the occupants of the car challenged a rival gang member under
circumstances that would lead any gang member to expect violence; one of them was
armed, wore black, and carried a ski mask; gang members are generally expected to
provide backup for one another; and defendant’s tattoos and cell phone contents
suggested he was a devoted member of his gang. Thus the conduct, relationships,
interests, and activities of the codefendants suggest an agreement to conduct a mission
together in enemy territory, find a rival gang member, criminally assault him, and if
circumstances warranted it, to shoot him. We conclude from this evidence that the trial
court did not err in giving the requested uncharged conspiracy instruction. (Rodrigues,
supra, 8 Cal.4th at p. 1134.)
VI. Natural and probable consequences of conspiracy
       Defendant contends that the trial court erred in instructing with CALCRIM No.
416, which defines criminal conspiracy, and with No. 417, which explains the
coconspirators’ liability for the natural and probable consequences of the conspirators’
intended crime. He contends that the instructions were tantamount to permitting the jury



                                             22
to convict him under the felony-murder rule without finding the elements of felony
murder.
       The felony-murder rule does not require a finding of malice or implied malice; a
conviction of first degree felony murder requires a finding of one of the predicate
offenses under section 189, and a conviction of second degree felony murder requires the
commission of a nonassaultive felony which is inherently dangerous to human life.
(People v. Bryant (2013) 56 Cal.4th 959, 965.) Defendant argues that the instructions
were erroneous because simple assault and battery are assaultive and are neither felonies
nor inherently dangerous, and thus cannot be the predicate offenses for either first or
second degree felony murder.
       The problem underlying defendant’s argument is that the trial court did not give
felony murder instructions, nor were the conspiracy instructions tantamount to felony
murder instructions. Further, the trial court did not instruct the jury that it could convict
defendant of first or second degree murder without regard to express or implied malice,
or that it could convict a coconspirator of first degree murder based upon the natural and
probable consequences of assault or battery.
       The court’s reading of CALCRIM No. 416 included the following excerpt:
              “To decide whether a defendant and one or more of the other alleged
       members of the conspiracy intended to commit murder, please refer to the
       separate instructions that I . . . have given you on that crime, which I read a
       few minutes ago. The People must prove that the members of the alleged
       conspiracy had an agreement, an intent to commit an assault, a battery, or
       murder. . . . You may not find the defendant guilty under a conspiracy
       theory unless all of you agree that the People have proved that the
       defendant conspired to commit at least one of these crimes and you all
       agree which crime he conspired to commit. You must also all agree on the
       degree of the crime.”

       The court then read CALCRIM No. 417, which explained vicarious liability for
the natural and probable consequences of a coconspirator’s intended crime. With regard
to the murder charge, the court instructed that the People were required to prove that the
defendant conspired to commit assault or battery, and “murder was a natural and probable


                                              23
consequence of the common plan or design of the crime that the defendant conspired to
commit.” The court specifically referred to its previous instructions concerning first and
second degree murder, and instructed the jury that it must agree on the crime defendant
conspired to commit as well as the degree of the crime.
       The court thus correctly instructed that a conspirator may be vicariously liable for
any crime that was a natural and probable consequence of the conspiracy. (See People v.
Prieto (2003) 30 Cal.4th 226, 249-250.) The analysis under this rule is the same as that
under the natural and probable consequences doctrine of aiding and abetting. (People v.
Guillen (2014) 227 Cal.App.4th 934, 998.) “An aider and abettor’s liability for murder
under the natural and probable consequences doctrine operates independently of the
felony-murder rule. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 166; People v. Culuko
(2000) 78 Cal.App.4th 307, 322.) Thus, an aider and abettor may be convicted of second
degree murder even where the target offense was not an inherently dangerous felony.
(People v. Culuko, supra, at p. 322.)9
       We conclude that the conspiracy instructions given were not tantamount to felony
murder instructions and were not incorrect statements of law. And as we have addressed
harmless error in greater detail above, we need not do so again here. It suffices to repeat
that the factual question was decided against defendant based on substantial evidence and
thus no prejudice appears. (See People v. Prettyman, supra, 14 Cal.4th at p. 276.)




9      Of course, “all conspiracy to commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder.” (People v. Cortez (1998) 18 Cal.4th
1223, 1237.) Similarly, any kind of willful, deliberate, and premeditated killing may be a
predicate offense under the felony-murder rule. (§ 189.)

                                            24
                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                           ____________________________, J.
                                           CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




                                      25
