Filed 4/19/16 P. v. Lowe 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B260127

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA420534)
         v.

CURTIS DESHAWN LOWE et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis
J. Landin, Judge. Affirmed in part, modified in part, and reversed in part with directions.
         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant Curtis Deshawn Lowe.
         Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant Sedric Wayne Scott.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General,
for Plaintiff and Respondent.
                                          _______________________
       The jury found defendants and appellants Curtis Deshawn Lowe and Sedric
Wayne Scott guilty of second degree murder. (Pen. Code, § 187.)1 It found true the
special allegation that Scott committed the murder while engaged in the crime of robbery
within the meaning of section 190.2, subdivision (a)(17)2, and that the murder was
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) as to both
defendants.
       The trial court sentenced defendants to 15 years-to-life in state prison, plus 10
years each on the gang allegations. With respect to Scott, the court stated that it was
imposing and staying sentence on the robbery-murder special circumstance, but no
sentence was imposed on the allegation.
       Scott contends that: (1) insufficient evidence supports his conviction; (2)
admission of testimony from the preliminary hearing for Lowe’s 1990 manslaughter
conviction violated his constitutional rights to due process and a fair trial; (3) the
prosecutor committed misconduct during closing argument; (4) he was prejudiced by
cumulative error; (5) the trial court erred in failing to strike the robbery-murder special
circumstance; and (6) the trial court miscalculated his actual custody credits. Scott also
joins in Lowe’s second, fourth, and fifth arguments below, pursuant to rule 8.200(a)(5) of
the California Rules of Court.
       Lowe contends that: (1) admission of testimony from the preliminary hearing for
his 1990 manslaughter conviction violated his constitutional rights to due process and a
fair trial; (2) the trial court improperly reopened the case to allow dismissed codefendant
Nathaniel Willard to testify;3 (3) the prosecutor committed misconduct during closing

       1   All future references are to the Penal Code unless otherwise stated.

       2 As discussed more fully below, the special circumstance finding is inapplicable,
as a matter of law, to second degree murder.
       3 Lowe,  Scott, John Armstrong, and Willard were tried jointly. Armstrong has a
separate direct appeal pending in case number B258639. The trial court granted
Willard’s request for dismissal pursuant to section 1118.1. Subsequent to his dismissal
from the case, Willard was called as a witness by the prosecution.

                                               2
argument;4 (4) the trial court improperly declined to dismiss an inattentive juror; (5) the
trial court erred in failing to sua sponte instruct the jury on involuntary manslaughter; (6)
there was prejudicial cumulative error; and (7) the trial court miscalculated his actual
custody credits.
       The Attorney General concedes that custody credits were miscalculated as to both
defendants, but contests all other contentions.
       We agree with defendants that the jury’s true finding on the robbery-murder
special circumstance as to Scott must be stricken because it is inapplicable as a matter of
law to a second degree murder conviction, and that the abstracts of judgment must be
amended to properly reflect both defendants’ actual custody credits, but otherwise affirm
the judgment.


                                          FACTS


Prosecution


       The Murder of Patrick Lister


       On May 14, 2012, Armstrong and Scott, members of the Swans criminal street
gang, were standing in front of the Three Star Market with several other Swans members,
including Willard and Mitchell Johnson. Patrick Lister was walking toward the market,
when Scott and Armstrong “hit him up” and asked him “where he was from.” Lister did
not respond. He walked past Scott and Armstrong and entered the market. They
followed Lister into the market and confronted him just inside the doorway. Scott tore a
gold chain from Lister’s neck and ran out of the market, taunting him. Lister pursued
Scott with his arms extended. Scott threw a punch at Lister. Armstrong ran over and



       4 Lowe   joins in Scott’s argument pursuant to California Rules of Court, rule
8.200(a)(5).

                                              3
punched Lister. Scott pocketed the chain. A group of Swans members surrounded Lister
and began beating him.
       Lowe was not present when the incident started. He ran from across the street and
joined the group surrounding Lister after the altercation began. Lowe’s sister Keisha
came out of a laundromat behind the market and saw the men beating Lister. She
recognized Lister as the brother of her close childhood friend. Keisha grabbed Lowe by
the neck and yelled, “What are you all doing? That’s Veronica’s brother.” She told the
gang members to get off of Lister, and the group broke apart. Scott returned the chain to
Lister. Keisha saw blood on Lister’s shirt and told him he was “leaking.” Lister’s chest
was covered in blood.
       Lister died on May 17, 2012, from a six-inch-deep stab wound to the left side of
his chest that pierced his heart. The wound would have required the use of significant
force. Lister also sustained a three-inch-deep nonfatal stab wound to his lower back.
There were no defensive wounds to his hands. Lister was 5 feet 9 inches tall, and his
weight was estimated at approximately 170 to 180 pounds.
       Officers recovered a gold chain with a broken clasp from Lister’s car.


       Surveillance Video


       Portions of the attack on Lister were recorded on the market’s video surveillance
cameras. Defendants stipulated that they were depicted in the videos. The videos
showed numerous Swans members at the scene, including Armstrong, Scott, Willard, and
Johnson, greeting one another and shaking hands. The videos displayed Armstrong and
Scott approaching Lister. Scott is shown ripping the chain from Lister and running away
while holding it over his head. Lister is seen chasing him, with his arms extended toward
the chain. Scott throws a punch in Lister’s direction, and then shoves the chain into his
pocket. Armstrong also throws a punch in Lister’s direction, and then all three men move
out of camera range.



                                             4
       Moments later, Lowe is shown walking into view from the direction of the fight.5
He moves something from his left hand to his right hand, puts it in his pocket, and goes
into the market. Scott, Armstrong, and Willard then appear on camera, coming from the
same direction as Lowe. A man wearing blue walks toward the market. At the entrance,
he and Armstrong talk and shake hands. As the man starts to go into the market, Lowe
walks out and pokes him in the chest, pushing him back. Armstrong puts his arm out
straight across Lowe’s arms and chest as Lowe advances toward the man in blue.
Armstrong says something to Lowe, and the two bump hands in a friendly manner. Lowe
walks back into the market, followed by the man in blue. While standing below the
inside camera, Lowe opens his right palm and looks down at it. Willard and Lowe leave
the market together talking in a friendly manner, and disappear from view.


       Witnesses


       Officers interviewed Keisha and Johnson. Johnson stated that “Everybody out
there [at the market was] from Swans.” He saw Scott and Armstrong fighting Lister.
Johnson said that Lowe stabbed Lister, but he did not actually see the stabbing. When
Johnson got off the school bus that day, Lowe flashed a “little palm knife” that flipped
open. It was “a little bit longer” than five inches. Lowe did not just show the knife to
Johnson; he showed it to “everybody.”


       Expert Testimony


       Los Angeles Police Department Officer Bobby Romo, assigned to gang
enforcement, testified regarding the Swans, a Bloods criminal street gang, with over 400
active members. The Swans members primarily wear red. Their symbol is a swan. They



       5   The stabbing was not depicted in the recording.


                                              5
have a rivalry with the Crips, who wear blue. Swans’ primary activities include murder,
assault with a deadly weapon, vandalism, and criminal threats.
       Gangs commit crimes such as shootings, robberies, and tagging, to foster fear and
respect from the community and rival gangs. Individual members will commit crimes
and acts of violence to gain status within the gang. Gangs are territorial. If a rival gang
member enters a gang’s territory, gang members will ask where he is from to verify his
gang affiliation. Rival gang members can be killed for entering a gang’s territory. The
Three Star Market was on the “main threshold” of Swans territory. Swans members
congregated in the area frequently.
       Based on tattoos, admissions, and their habits and associations, Officer Romo
opined that Scott, Lowe, Armstrong, and Willard were members of the Swans gang.
Given a hypothetical tracking the facts in this case, Officer Romo opined that the murder
would have been committed for the benefit of, at the direction of, and in association with
the gang. The gang members worked in concert. One of them robbed the victim, which
would bolster his own reputation. The gang would view the victim as showing disrespect
when he challenged the robber and tried to get his property back. The other gang
members backed up the robber by participating in the assault, which would be expected
of members of the same gang to protect the gang’s reputation.
       Detective Everardo Amaral was assigned to the Los Angeles Police Department’s
Criminal Gang Homicide Division. He had been an officer for 16 years at the time of the
trial, and had extensive gang training, including training to identify gang members.
Detective Amaral was the primary investigating officer in the case. He identified
defendants in the video. Detective Amaral testified that, according to booking photos,
Scott was 5 feet 7 inches tall and weighed 130 pounds at the time of his arrest.




                                             6
Defense 6


       Scott


       Scott testified that he had suffered three prior convictions involving weapons
possession. In two of the incidents, he gave false names to the arresting officers.
       Scott had been an active member of the Swans gang since high school. Scott
testified that Armstrong was a Swans gang member who went by the gang moniker
“Biscuit.” Johnson was a Swans gang member who went by the moniker “Jack.”
Willard was also a Swans member. Scott was not friends with Willard and Armstrong
because they were older than he.
       On May 14, 2012, Scott walked to the Three Star Market with his friend Randy.
He was waiting for Randy outside the store when he saw Lister at the entrance. Scott had
seen Lister around other members of the Swans gang. Lister was acting and speaking
strangely, but was not addressing anyone. Lister stepped inside and faced Scott. Scott
said, “Why are you tripping? Why don’t you leave.” Lister responded, “Fuck you man.
We can do whatever.” Scott reached to pull Lister out of the store and touched his chest.
He was trying to grab Lister’s shirt to make him leave. Lister extended his arms and
came at Scott. Scott backed up and swung at Lister. He was afraid that Lister was going
to hit him.
       Scott admitted that he and Armstrong approached Lister first, and that Armstrong
was trying to hit Lister. Scott “accidentally” broke Lister’s chain, but he gave it back to
him and walked away. Lister was not bleeding when Scott returned the chain. When
Scott left, Lister was trying to put the chain back on.
       Scott did not see Armstrong punch Lister until he viewed the market’s video
surveillance footage. Scott left after the confrontation. He did not know Lister was




       6   Armstrong did not testify in his own defense.

                                              7
stabbed and did not know who stabbed him. Scott did not know Lowe. The first time he
saw Lowe was on the surveillance footage.
       Scott did not steal Lister’s gold chain for the benefit of the Swans gang and did not
have a prearranged plan with the other defendants to steal Lister’s chain or kill him. The
Swans were peaceful. He did not know of any violence between the Swans and Crips
gangs. He did not know of any Swans gang member who carried a gun or a knife.
Asking someone on the street “Where you from?” was not threatening, but was just “a
way to get to know someone.”


Rebuttal


       Homicide investigator Dean Vinluan had investigated 25 gang-related homicides,
two of which involved members of the Swans gang. Several of the cases involved fights
that escalated into deadly violence. Gang members settle their disputes more violently
than other people.


Reopening of the Case


       After the defense rested, the trial court granted Willard’s request for dismissal
pursuant to section 1118.1. The trial court then granted the prosecution’s motion to
reopen the case to call Willard as a witness.
       The police arrested Willard on June 8, 2012. In a recorded conversation while
Willard was in custody, he admitted to a confidential informant that he had been present
at the incident. Willard stated that he was a Swans member and he saw the fight between
Scott and Lister. Lowe stabbed Lister, and Armstrong was also involved. Scott returned
the chain to Lister when the fight ended. He saw Lister bleeding from the stabbing.
       When questioned by the prosecutor, Willard denied making any of the recorded
statements to the confidential informant. The prosecution moved to have the



                                                8
conversation admitted. The trial court granted the request, and the recording was played
for the jury.


Surrebuttal


       Lowe testified that he had numerous felony convictions, including a conviction for
voluntary manslaughter committed while he was a Swans gang member in May 1990. In
the 1990 incident, an individual named Kenneth Solomon was involved in a fight with
nine to 10 Swans gang members. Lowe testified at trial that he threw a brick during the
fight, which struck Solomon on his head and killed him. Lowe did not intend to kill
Solomon. He pled guilty to voluntary manslaughter and served five years in prison for
the offense.
       Lowe further testified that had not been involved with the Swans since 1990. He
had multiple tattoos, including a tattoo of a “B,” which did not mean anything; he just
liked Boston. He had a tattoo of a swan on his arm to memorialize his dead wife. The
tattoo had nothing to do with the Swans gang. In 1996, after he was released from prison,
Lowe moved from Los Angeles to Rialto, although he used his mother’s address in Los
Angeles for his parole officer.
       Lowe was at the Three Star Market on May 14, 2012. He did not know Lister,
Willard, Scott, or Armstrong, did not fight with Lister, did not see anyone else fight with
or stab Lister, and did not kill Lister. Keisha never touched Lowe on the day of the
incident, nor did she pull him away from a group of people. While in the market, Lowe
pushed a man wearing blue with his right hand after the man made a remark about his
niece or sister.
       Lowe testified that the surveillance video showed him taking a “cell phone” from
his right hand and putting it into his left hand outside the store. Lowe was left-handed
and had “limited mobility” in his right arm due to injuries. He did not have the strength
to stab anyone with his right arm, and was not carrying a knife or any other weapon that
day.

                                             9
        The prosecution was permitted to impeach Lowe with the preliminary hearing
testimony of Willie Mae McGowan relating to the 1990 killing of Solomon. According
to the prior testimony, McGowan and Solomon drove to the vicinity of 839 78th Street in
Los Angeles to buy drugs. When they arrived there were approximately nine to 10
people present. Solomon asked, “Who has the snow?” Lowe’s codefendant, Keith
Walker, told Solomon he would have to get out of the car and come over because there
were police in the area. The man who Solomon was supposed to meet walked over to
him, punched him in the stomach, and said, “This is swan.” McGowan believed the man
was referring to the Swans gang. Someone said, “Give up the dove,” and everyone in the
group moved toward Solomon and began beating him. Solomon fell to the ground after
being struck with a flowerpot. Another person said, “Let’s kill this mother fucker.”
Lowe picked up a very large brick and walked over to Solomon. McGowan yelled,
“Please don’t kill him.” Lowe raised the brick up and slammed it down on Solomon’s
head. The force was so great that it caused Solomon’s body to “jump off the ground.”
Walker pulled off Solomon’s jacket, which had $200 in it. Some of the men were
touching Solomon’s pants pockets. McGowan believed Solomon was dead, so she drove
away.


                                     DISCUSSION


Sufficiency of the Evidence


        Scott contends his conviction for second degree murder must be reversed, because
there was insufficient evidence that the stabbing was a natural and probable consequence
of a simple assault and battery. He argues that because he and Lowe did not act in
concert, a reasonable person would not have foreseen that a murder by stabbing was a
natural and probable consequence of an assault and battery. Scott argues that Lowe acted
independently in a manner that was unforeseeable. We are not persuaded.



                                           10
       Law


       “In considering an appellate challenge to the sufficiency of the evidence, state law
requires this court to ‘review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence - that is, evidence which is
reasonable, credible, and of solid value - such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980) 26 Cal.3d 557,
578.) Under the due process clause of the Fourteenth Amendment, an appellate court
must ‘determine whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318.) The
reviewing court does not address whether it believes the evidence established guilt
beyond a reasonable doubt. ‘Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. [Citation.]’”
(People v. Miranda (2011) 199 Cal.App.4th 1403, 1411-1412.)
       “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
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.) An act is a natural and probable consequence if, “under

                                             11
all of the circumstances presented, a reasonable person in the defendant’s position would
have or should have known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted by the defendant.” (People v. Nguyen (1993) 21
Cal.App.4th 518, 531.) “[I]t is not necessary that the collateral act be specifically
planned or agreed upon, nor even that it be substantially certain to result from the
commission of the planned act.” (Id. at p. 530.)
       In People v. Medina (2009) 46 Cal.4th 913 (Medina), our Supreme Court
reviewed in detail the case law discussing whether a murder is a reasonably foreseeable
consequence of what begins as a gang altercation. “A reasonably foreseeable
consequence is to be evaluated under all the factual circumstances of the individual case
[citation] and is a factual issue to be resolved by the jury. (People v. Olguin (1994) 31
Cal.App.4th 1355, 1376; People v. Godinez (1992) 2 Cal.App.4th 492, 499.)” (Medina,
supra, at p. 920.) The Medina court acknowledged the following cases upholding murder
convictions based on gang violence under the natural and probable consequences theory:
“People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related
fistfight was natural and probable consequence of fistfight]; People v. Montes (1999) 74
Cal.App.4th 1050, 1056 [shooting of rival gang member during retreat from fight was
natural and probable consequence of gang fight in which defendant wielded a chain];
People v. Olguin, supra, 31 Cal.App.4th at p. 1376 [defendant’s punching of victim
during gang confrontation foreseeably led to fatal shooting of victim by fellow gang
member]; People v. Godinez, supra, 2 Cal.App.4th 492, 499-500 [fatal stabbing of rival
gang member either during or after fistfight was natural and probable consequence of
fistfight]; People v. Montano (1979) 96 Cal.App.3d 221, 226 [defendant’s aiding and
encouragement of battery on victim foreseeably led to shooting of victim by fellow gang
members].” (Medina, supra, 46 Cal.4th at pp. 920-921; see also People v. Chiu (2014)
59 Cal.4th 155, 165.)
       “[T]he ultimate factual question is one of reasonable foreseeability, to be
evaluated under all the factual circumstances of the case. [Citations.] The precise
consequence need not have been foreseen.” (Medina, supra, 46 Cal.4th at p. 927.) There

                                             12
is no requirement that the aider and abettor know the actual killer was in possession of a
deadly weapon. (Id. at p. 926, citing People v. Montes, supra, 74 Cal.App.4th at p.
1056.)


         Discussion


         Substantial evidence supports the jury’s finding that Lister’s murder was a natural
and probable consequence of the assault and battery. The killing of Lister took place in
territory claimed by the Swans. (See People v. Ward (2005) 36 Cal.4th 186, 210
[acknowledging the significance of gang territory].) The evidence established that Scott,
Armstrong and Lowe were all Swans members.7 The incident commenced with a gang
challenge, when Scott and Armstrong asked Lister where he was from. (Medina, supra,
46 Cal.4th at p. 927.) After Scott snatched the chain from Lister, he taunted Lister with
it, prompting Lister to try to regain his property, a sign of disrespect to the Swans which,
in gang culture, required a response. (Id. at p. 923.) Armstrong, another gang member,
increased the level of violence by punching Lister. This was followed by other members
of the Swans joining in the assault. (See People v. Garcia (2008) 168 Cal.App.4th 261,
276 [gang expert “explained that . . . if one gang member gets in a fight, his fellow ‘gang
member friends will also join in the fight to back him up’”].) Eventually, Lowe, another
member of the Swans, arrived at the scene and inflicted the fatal stab wound during the
assault by his fellow gang members.
         Expert testimony established that the Swans is a violent street gang with primary
activities that include, inter alia, murder and assault with a deadly weapon. (See People
v. Gardeley (1996) 14 Cal.4th 605, 624-625.) An investigator on 25 gang killings
explained that he has investigated gang fights that escalated into deadly violence, and that
gangs settle disputes differently than other people.

         7 We
            note that Scott makes no challenge on appeal to the jury’s finding the murder
was committed for the benefit of a criminal street gang within the meaning of section
186.22, subdivision (b)(1)(C).

                                              13
       We conclude substantial evidence supported the jury’s finding that murder was a
natural and probable consequence of the initial assault on Lister. As set forth above,
“there was more here than just verbal challenges by gang members.” (Medina, supra, 46
Cal.4th at p. 927.) The prosecution was not required to prove that the stabbing of Lister
was a probable consequence of the initial assault, or that Scott knew that Lowe was
armed with a knife. (Ibid.) An escalation of into “some type of physical violence”
consistent with some of the primary activities of the Swans was reasonably foreseeable
given the totality of the circumstances. (Ibid.) The conviction in this case is consistent
with the framework of the law set forth in Medina.


Admission of Evidence of Lowe’s Prior Conviction


       Lowe challenges admission of the preliminary hearing testimony on the basis that
it is inadmissible character evidence that is more prejudicial than probative. He argues
that the prior offense is not sufficiently similar to the instant case. In contrast, Scott
focuses on the strong similarity between the two crimes, arguing that the evidence should
have been excluded as unduly prejudicial to the other defendants pursuant to Evidence
Code section 352. To the extent that Scott’s argument was forfeited by failure to object
to the trial court, Scott claims his counsel was ineffective. We hold that Lowe’s
contention is without merit. Scott’s contention is forfeited because his counsel failed to
object on the specific grounds now raised. (See People v. Jones (2012) 54 Cal.4th 1, 61)
We further conclude that Scott’s counsel’s performance was not deficient, nor was he
prejudiced by counsel’s lack of objection.


       Proceedings


       Prior to trial, the prosecutor sought to have preliminary hearing testimony from
Lowe’s 1990 prior conviction for manslaughter admitted to prove intent to kill and lack
of mistake pursuant to Evidence Code section 1101, subdivision (b). Lowe’s counsel

                                              14
argued that the evidence should only be admitted for impeachment if Lowe testified that
he stabbed Lister in defense of his friends. Until then, the evidence would be improper
character evidence. The court deferred ruling on the matter until the defense had
presented its evidence.
       The issue was raised a second time before trial. The prosecutor argued the
testimony was relevant to intent to kill, intent to aid and abet, lack of mistake, and intent
to promote and assist fellow gang members. Because identity was not at issue, intent
would be the primary issue to be resolved in the case. Lowe’s counsel argued that the
cases were not sufficiently similar. The 1990 case was a “drug deal gone bad.” Lowe
had been present for the entire incident, which took place outside. In contrast, the current
case did not involve a drug transaction, the robbery occurred inside the market, and Lowe
arrived at the scene after it was completed. The prosecutor disagreed. She argued that
the killings both took place in Swans gang territory, blocks away from one another. Both
incidents involved a group of Swans members attacking someone approaching a location
to buy something. The 1990 incident involved someone taking a jacket from the victim’s
person, which was similar to this case, where a chain was taken from the victim’s neck.
In both cases, a group assault escalated to Lowe using a deadly instrument to kill the
victim. Willard’s counsel objected that there would be “a bleed-over effect as to the
remaining three defendants.” He did not argue the point further.
       Lowe’s counsel raised the issue a third time after the prosecution rested. Counsel
represented that Lowe was going to testify. He intended to ask Lowe if he was convicted
of manslaughter in 1990, and if he served a prison sentence for the crime. He argued that
the only basis for admitting the preliminary hearing testimony was impeachment, and that
the transcript should be excluded if Lowe testified. Counsel did not plan to assert self-
defense. He intended to argue that Lowe had nothing to do with the incident. The
prosecutor responded that the transcript was still relevant to lack of mistake and intent.
Lowe’s counsel conceded that if Lowe testified he ran over to the other gang members to
assist in their defense the prosecution would have an “arguable position,” but that Lowe
was not going to testify that he was involved in any way. The court told Lowe’s counsel

                                              15
that he should anticipate the prosecutor would be permitted to question Lowe about the
facts of the prior conviction. The court stated that the evidence would be relevant to
impeach Lowe’s claim that he was uninvolved. Lowe’s counsel responded, “That’s
fine.” He then asked if the preliminary hearing testimony would be admitted. The
prosecutor responded that she would not seek to have the testimony admitted if Lowe was
truthful about the facts of the 1990 case, but that she would seek admission if he testified
untruthfully. The court noted that if Lowe admitted he participated in the incident “as
part of some gang fight or gang retaliation[,] or gang incident,” the evidence would not
be relevant. The court delayed ruling until it was determined whether Lowe would
testify.
           After Lowe testified that he was not involved in the charged incident in any way,
the prosecutor moved to have the preliminary hearing transcript read into the record. She
noted that there were numerous discrepancies between Lowe’s testimony about the 1990
killing and the preliminary hearing transcript. She had given Lowe the opportunity to
refresh his memory, and he had refused. She intended to impeach him with the evidence.
The evidence should also be admitted to show Lowe’s intent to aid and abet other gang
members in an assault and battery. Lowe’s denial of involvement put his intent at issue.
There were sufficient similarities between the 1990 killing and the instant case to admit it
for intent pursuant to Evidence Code section 1101, subdivision (b). Lowe’s counsel
argued the cases were not similar. In 1990, Lowe had admitted he was involved in the
killing, whereas here he contested that fact. The prior crime had been committed with
people Lowe knew, but the current offense involved strangers. The prosecution was
attempting to introduce character evidence. The court admitted the evidence for the
purposes of showing intent to aid and abet an assault and intent to act for the benefit of a
criminal street gang.
           After the preliminary hearing testimony of Willie Mae McGowan was read into
the record, Scott’s counsel moved for mistrial on the basis that the overall prejudicial
effect of admitting McGowan’s testimony violated Scott’s constitutional right to a fair
trial. Counsel argued that although Scott was four years old in 1990, the cases were

                                               16
strikingly similar. Armstrong’s counsel joined in the motion, expressing concern that the
prosecution would use the evidence against all of the defendants. The prosecutor
responded that as she understood the issue, the jury could only consider the evidence with
respect to Lowe. She anticipated the court would give a limiting instruction to that effect.
The prosecutor argued that the jury was capable of understanding that none of the other
defendants was involved in the 1990 incident. She offered to stipulate that they had
nothing to do with the killing, and given the circumstances, there was no prejudice to the
other defendants. Scott’s counsel responded that a limiting instruction would do little to
cure the prejudice. The trial court denied the motion for mistrial, stating that it would
give a limiting instruction that made specific reference to the preliminary hearing
testimony.
       Prior to closing arguments, the jury was instructed pursuant to CALCRIM No. 304
as follows: “The testimony from the preliminary hearing that was read to you was
admitted as evidence against Mr. Lowe. You must not consider that evidence against Mr.
Armstrong or Mr. Scott.” The jury was also instructed under CALCRIM No. 375 that it
could only consider the preliminary hearing testimony “for the limited purpose of
deciding whether or not: [¶] The defendant was the person who committed the offenses
alleged in this case; or [¶] The defendant acted with the intent to assist, further[,] or
promote criminal conduct by gang members in this case; or [¶] The defendant had a
motive to commit the offense alleged in this case.” The jury was instructed not to
consider the evidence for any other purpose or to conclude that Lowe had a bad character
or was disposed to commit crime. The court instructed the jury with CALCRIM No. 316
that, “The fact of a conviction or that a witness committed a crime or other misconduct
does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the
weight of that fact and whether that fact makes the witness less believable.”
       In closing argument, the prosecutor argued, “You heard evidence when Mr. Lowe
took the stand about his prior homicide. The judge just read to you an instruction about
it. It was admitted for two purposes: one, to show that when any witness takes the stand
and they have a prior crime of moral turpitude, you can take that into consideration when

                                             17
you judge the believability of the witness. There’s certain crimes where the law says if
you’re convicted of those felonies, that the jury can take that into consideration whether
or not you’re a believable person. So it was offered in that sense for impeachment. The
judge also offered it for another reason. That’s the reason you just heard in the
instruction. There are similarities between that crime and this particular crime that can
cause you to come to conclusions regarding Mr. Lowe’s intent and motive on that
particular day because he’s been in the same situation before. So while usually you don’t
get to consider someone’s past, in this particular circumstance you can consider this
regarding his intent.” The prosecutor then described the similarities between the cases:
both involved a large group of Swans gang members, in gang territory, blocks away from
each other. In each, the victim approached alone with the intent to buy something, and a
gang beating ensued. Lowe escalated the situations to murder using a deadly weapon.
       While the prosecutor was making her closing argument, Scott’s counsel renewed
his motion for mistrial. He argued that even though the prosecutor was skillfully
attempting to “put this at Mr. Lowe’s doorstep,” the similarities in the cases were so
striking that prejudice would certainly result. A limiting instruction could not cure the
harm. The prosecutor responded that her argument was narrowly tailored to Lowe and
that she reminded the jury to use the prior testimony only as permitted by Evidence Code
section 1101, subdivision (b) and impeachment purposes. The court denied the motion.
       When the prosecutor resumed argument she addressed the issue of premeditation
and deliberation of the murder: “Now, I would say, with Mr. Lowe, given we have the
[section] 1101[, subdivision] (b) evidence, the evidence of him committing a similar act
prior, you can take that into consideration, the amount of time it takes him to make that
decision again. . . . [¶] . . . [¶] you can’t use that evidence of the prior murder against any
of the other defendants, I’m not going to argue it relates to them. They were probably
toddlers when it happened.”




                                              18
       Law


       Under Evidence Code section 1101, subdivision (a), evidence of a person’s
character, including specific instances of his or her conduct, “is inadmissible when
offered to prove his or her conduct on a specified occasion.” This notwithstanding,
“admission of evidence a person committed a crime, civil wrong, or other act” is
admissible when it is relevant to prove some fact such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident” (Evid. Code, §
1101, subd. (b)), “‘or to overcome any material matter sought to be proved by the
defense.’ [Citation.]” (People v. Alcala (1984) 36 Cal.3d 604, 631, superseded by statute
on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.) The trial
court has discretion in admitting evidence, and we will not disturb the exercise of the
court’s discretion absent a showing of abuse, i.e., a showing that the trial court acted in an
arbitrary, capricious or patently absurd manner resulting in a miscarriage of justice.
(People v. Gray (2005) 37 Cal.4th 168, 202; People v. Kipp (1998) 18 Cal.4th 349, 371
[trial court’s decision to admit evidence under Evidence Code section 1101 reviewed for
abuse of discretion].)
       Even when evidence is relevant under Evidence Code section 1101, subdivision
(b), it must be excluded under Evidence Code section 352 if its prejudicial effect
substantially outweighs its probative value. (People v. Ewoldt (1994) 7 Cal. 4th 380,
404.) Evidence Code section 352 is intended to prevent undue prejudice, that is
“‘“evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues,”’ not the prejudice ‘that naturally
flows from relevant, highly probative evidence.’ [Citations.]” (People v. Padilla (1995)
11 Cal.4th 891, 925, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.)
This court will not disturb a trial court’s exercise of discretion under Evidence Code
section 352 absent a showing that the trial court abused its discretion. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.)



                                             19
       Lowe


       The trial court did not abuse its discretion in admitting evidence of Lowe’s 1990
conviction for manslaughter. The evidence of Lowe’s past crime was highly probative.
Lowe was an admitted Swans member at the time of the 1990 incident, and strong
evidence presented at trial indicated that he was still a Swans member when he fatally
stabbed Lister. Both incidents involved a large group of Swans gang members
converging on a single victim. The incidents began with fist fights that Lowe escalated
by killing the victims. They took place within gang territory, only a few blocks from one
another. In both cases, the gang members worked together assaulting and battering the
victim. The evidence of the 1990 killing tended to show that as a Swans gang member,
Lowe would be motivated to aid and abet his fellow gang members in an assault, battery,
and murder, and to do so to benefit the gang.


       Scott


       During the proceedings, the issue of whether the testimony from the preliminary
hearing of Lowe’s prior conviction would be admitted was raised no less than five times
before the testimony was read to the jury. Scott’s counsel did not object at any point in
those discussions. Citing to the general rule that appellate courts will consider matters to
which an objection was made and considered by the lower court, Scott argues that
Willard’s counsel’s objection that there would be “a bleed-over effect as to the remaining
three defendants” was sufficient to preserve his contention. We disagree. Setting aside
the fact that Willard’s trial counsel was not Scott’s trial counsel, the objection made was
not specific. Willard’s counsel never elaborated beyond his single statement, or
explained in what manner defendants would be prejudiced. The objection was made
prior to trial, during the second discussion regarding admission of the evidence. It was
never renewed. As a consequence, the trial court did not consider Willard’s objection or
the effect of the evidence on the remaining defendants prior to admission of the

                                             20
testimony. Scott’s alternative argument that objection would have been futile, as
evidenced by the fact that the motions for mistrial were denied, also fails. Once the
concern of prejudice to the other defendants was brought to the trial court’s attention, it
instructed the jury that the evidence could not be used against any defendant other than
Lowe. The court was clearly receptive to concerns and acted to remedy them. An
objection would not have been futile. Scott has forfeited the challenge on appeal. (See
People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [“‘defendant’s failure to make a timely
and specific objection’ on the ground asserted on appeal . . .” forfeits his appellate
arguments based on the erroneous admission of the evidence].) Nonetheless, we review
Scott’s contention because he claims trial counsel was constitutionally ineffective for
failing to object.
       “The Sixth Amendment guarantees competent representation by counsel for
criminal defendants[, and reviewing courts] presume that counsel rendered adequate
assistance and exercised reasonable professional judgment in making significant trial
decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington
(1984) 466 U.S. 668, 690 (Strickland); People v. Freeman (1994) 8 Cal.4th 450, 513.)
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel
under either the state or federal Constitution, a defendant must establish (1) that defense
counsel’s performance fell below an objective standard of reasonableness, i.e., that
counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham), citing Strickland, supra, at pp.
687-694; see Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23
Cal.4th 978, 1068 (Kraft).) “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ([Strickland, supra, at p. 694]; People v. Riel
(2000) 22 Cal.4th 1153, 1175.)” (Cunningham, supra, at p. 1003.)
       “A defendant who raises the issue [of ineffective assistance of counsel] on appeal
must establish deficient performance based upon the four corners of the record. ‘If the

                                             21
record on appeal fails to show why counsel acted or failed to act in the instance asserted
to be ineffective, unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation, the claim must be rejected on
appeal.’” (Cunningham, supra, 25 Cal.4th at p. 1003, citing Kraft, supra, 23 Cal.4th at
pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The decision
to object to the admission of evidence is tactical in nature, and a failure to object will
seldom establish ineffective assistance. (People v. Williams (1997) 16 Cal.4th 153, 215.)
Given the presumption of reasonableness proper to direct appellate review, our Supreme
Court has “repeatedly emphasized that a claim of ineffective assistance is more
appropriately decided in a habeas corpus proceeding. [Citations.] The defendant must
show that counsel’s action or inaction was not a reasonable tactical choice, and in most
cases ‘“‘the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged . . . .’”’ [Citations.]” (People v. Michaels (2002) 28 Cal.4th 486,
526.)
        There is nothing in the four corners of the record to indicate defense counsel’s
motivation for his decision not to object, which is reason enough to reject the issue on
direct appeal. In any event, Scott fails to establish constitutionally deficient
representation because there is no basis to conclude the jury improperly used the
preliminary hearing testimony against Lowe for an improper purpose.
        We have no reason to believe that evidence admitted solely against Lowe, relating
to a crime in which Scott was not involved, resulted in any prejudice to Scott, particularly
because the jury had already been presented with more than ample evidence of Scott’s
guilt. There was little room for doubt the stabbing occurred in the course of an assault
and battery or that Scott both committed and aided and abetted the assault and battery.
Multiple witnesses testified the attack on Lister occurred, and Scott was involved. Scott
was shown ripping a chain from Lister’s neck and throwing a punch on the surveillance
video. The 1990 preliminary hearing testimony provided only a tenuous link between
Scott and Lowe—that Lowe had belonged to the same gang as Scott twenty years earlier.



                                              22
But it is undisputed that Scott was not personally connected to the 1990 crime in any
way.8
        The prosecutor argued specifically that the jury could use the testimony to assess
Lowe’s intent and motive. She was careful to emphasize to the jury: “[Y]ou can’t use
that evidence of the prior murder against any of the other defendants, I’m not going to
argue it relates to them. They were probably toddlers when it happened.”
        The trial court carefully instructed the jury that the preliminary testimony was not
to be used against Scott or Armstrong (CALCRIM No. 304), and that it could be used for
the limited purposes of establishing Lowe’s identity, intent to assist gang members, and
motive to commit the crime (CALCRIM No. 375). The testimony could not be used as
evidence of bad character and the jury was not permitted to consider the testimony for
any other purpose (CALCRIM No. 375). The jury was also instructed regarding the use
of gang evidence generally that it could “consider evidence of gang activity only for the
limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose,
and knowledge that are required to prove the gang-related enhancement and special
circumstances allegations charged; [¶] OR [¶] The defendant had a motive to commit
the crime charged. [¶] . . . [¶] [The jury was also permitted to] consider this evidence
when . . . evaluat[ing] the credibility or believability of a witness and when . . .
consider[ing] the facts and information relied on by an expert witness in reaching his or
her opinion.” (CALCRIM No. 1403). The jury is presumed to understand and follow the
instructions of the trial court. (People v. Archer (1989) 215 Cal.App.3d 197, 204.)



        8Defendant argues, citing Bruton v. United States (1968) 391 U.S. 123, that the
limiting instruction was insufficient to protect him from the potential prejudice from
introduction of the 1990 incident. We disagree that the reasoning of Bruton, which
protects “a defendant from a nontestifying codefendant’s confession implicating the
defendant at a joint trial” has any application here. “. . . Bruton recognized only a
‘narrow exception’ to the general rule that juries are presumed to follow limiting
instructions (People v. Lewis (2008) 43 Cal.4th 415, 454), and defendant offers no
rationale for extending the Bruton exception to this case.” (People v. Ervine (2009) 47
Cal.4th 745, 776.)

                                              23
Absent some affirmative indication in the record to the contrary, we presume that it did
so here. (People v. Holt, supra, 15 Cal.4th at p. 662.)
       Considering the record as a whole, we conclude it is not reasonably probable that
without the purported error Scott would have obtained a more favorable result. (See
Cunningham, supra, 25 Cal.4th at pp. 1003-1004.) Counsel’s failure to object did not
constitute ineffective assistance.


Admission of Willard’s Statements to a Confidential Informant


       Defendants contend the trial court abused its discretion by allowing the
prosecution to reopen its case to call Willard as a witness after both sides had rested, and
in denying the defense request for mistrial based on the admission of Willard’s hearsay
statements to a confidential informant, which implicated Lowe in the stabbing. We
conclude that the trial court did not err in reopening the case, or in denying the motion for
mistrial.


       Proceedings


       After all parties had rested, the trial court granted Willard’s motion for dismissal
pursuant to section 1118.1. The prosecutor then requested that the case be reopened, so
that she could call Willard to testify.
       The trial court asked for the positions of the parties. All three remaining defense
counsel objected, arguing that the prosecution “knew the strengths and weaknesses of
their case when they rested,” and that the request was untimely, as the court had already
begun instructing the jury. Because of Willard’s status as a defendant in the case, the
remaining defense counsel had only been able to conduct limited discovery, and were not
prepared.
       The prosecutor made an offer of proof that she would limit examination to
Willard’s statement to the confidential informant, which she had sought to have admitted

                                             24
at the beginning of trial. She reasoned that defense counsel should be prepared to cross-
examine Willard on the statement, having reviewed it thoroughly prior to arguing for its
exclusion. Lowe’s counsel requested that the court grant a two-week continuance to
allow defense counsel time to prepare. The trial court granted the prosecutor’s request to
reopen, and granted defense counsel a two-week continuance to prepare for cross-
examination.
        Willard testified inconsistently with his statement to the confidential informant,
but verified that it was his voice on the video recording of the statement, and that he was
wearing the clothing depicted in the video on the day in question. The video was then
played for the jury.
        Afterwards, the court announced it would proceed with the defense attorneys’
cross-examination of Willard the next morning, and then move directly into closing
arguments, but invited defense counsel to make a case for a recess prior to resuming in
the morning.
        The next morning, the trial court denied the request for recess. The court
explained that with respect to Scott, Willard was an impeachment witness, and normally
a continuance would not be granted for this type of witness. With respect to Lowe, the
video was not newly discovered, but newly available. If Willard had elected to testify in
his own defense, counsel would have had to respond without the benefit of a recess as
well.
        Lowe’s counsel argued the statement contained hearsay that implicated his client.
He specifically objected to a portion of the statement in which the confidential informant
asked Willard whether Keisha was likely to identify the person who stabbed Lister:
        “[Confidential Informant]: But, but, let me ask you this blood, who is she going to
say that stabbed [the] blood though?
        “[Willard]: The cold thing about it was that it was her brother that did the shit.”
        The trial court stated that counsel were free to question Willard regarding whether
he spoke to Keisha directly or heard what she intended to do from a third party. Counsel
requested to question Willard in an Evidence Code section 402 hearing prior to

                                              25
examining Willard in front of the jury. The trial court denied the request and denied the
request for a recess. The next morning, counsel renewed the request to question Willard
outside of the jury’s presence. The trial court denied the second request, stating:
“[Willard’s] statement was pretty clear to me that he had personal knowledge of what he
reported. You can ask him to clarify if you wish.”
       Upon cross-examination, Willard testified that he had not witnessed the stabbing
and had never spoken to Keisha. He only heard rumors about what had happened.
       When Willard’s testimony was complete, Lowe’s counsel moved for mistrial on
the basis of improper admission of hearsay. He argued that both Keisha and Willard had
testified they had not seen the stabbing. The jury heard “a highly prejudicial statement
[made] against the defendant with no personal knowledge from the . . . in-court declarant
. . . .” The prosecutor responded the jury could reasonably conclude that Willard, who
had denied making any of the incriminating statements in the video, was lying. As a
gang member, Willard would be highly motivated to protect his codefendants. The court
ruled: “The jurors will decide whether he’s lying. It’s not like he said she told me X, or I
heard Y. He makes certain statements. He was in a position he had personal
knowledge.”
       After denying the motion for mistrial, the court excused the jurors for
approximately two weeks for unrelated reasons.


       Law


       “It is well settled that the trial court has broad discretion to order a case reopened
and allow the introduction of additional evidence. (Pen. Code, § 1094; People v. Newton
(1970) 8 Cal.App.3d 359, 383; People v. Frohner (1976) 65 Cal.App.3d 94, 110.) No
error results from granting a request to reopen in the absence of a showing of abuse.
(People v. Benc (1900) 130 Cal. 159, 165.) Moreover, the appellate court decisions
upholding an order allowing the prosecution to reopen its case are legion. (E.g., People
v. Garvey (1979) 99 Cal.App.3d 320, 324 [trial judge has discretion to reopen

                                              26
prosecution’s case even after defense has rested]; see also Witkin, Cal. Criminal
Procedure (1963), Trial, § 434, pp. 435-436 and cases collected therein.) [¶] ‘Factors to
be considered in reviewing the exercise of [the trial court’s] discretion include the stage
the proceedings had reached when the motion was made, the diligence shown by the
moving party in discovering the new evidence, the prospect that the jury would accord it
undue emphasis, and the significance of the evidence.’ (People v. Newton, supra, 8
Cal.App.3d 359, 383, citations omitted, italics added.)” (People v. Rodriguez (1984) 152
Cal.App.3d 289, 294-295.)
       “A motion for mistrial is directed to the sound discretion of the trial court. We
have explained that ‘[a] mistrial should be granted if the court is apprised of prejudice
that it judges incurable by admonition or instruction. [Citation.] Whether a particular
incident is incurably prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.’ (People v. Haskett
(1982) 30 Cal.3d 841, 854.)” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.)
       Hearsay is “evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.
Code, § 1200, subd. (a).)


       Discussion


       All four factors the trial court was to consider weighed in favor of reopening the
case. At the time the motion was made, all parties had rested, but none had begun closing
argument, so there was no danger of disadvantage arising from unanticipated testimony
made after or during closing arguments. The trial court took a two-week recess, which
should have allowed all parties ample time to prepare. As the prosecution and trial court
noted, if Willard had chosen to testify before he was dismissed, defendants would have
had to adjust strategy without any additional time.
       The statement was not “newly discovered.” It had been in defense counsels’
possession since before the start of trial and they had presumably reviewed it carefully

                                              27
when preparing to argue for its exclusion. The prosecutor was diligent in seeking to have
Willard’s statement to the confidential informant admitted. She made a motion for its
admission just prior to trial and moved for its admission again immediately following
Willard’s dismissal from the case.
       The jury was unlikely to have drawn any conclusions adverse to defendants on the
basis of the timing of Willard being called as a witness. The jurors were aware that the
charges against Willard were no longer to be considered. They did not know whether
Willard had been acquitted, had entered into a plea agreement, or was no longer in the
case for some other unknown reason. There was no basis for the jurors to make
conclusions about the veracity of Willard’s testimony from the facts before them. They
had been instructed not to speculate about the reason for the change. (People v. Archer
(1989) 215 Cal.App.3d 197, 204 [the jury is presumed to understand and follow the
instructions of the trial court].) We presume the jury followed the court’s instructions,
and did not accord Willard’s testimony undue emphasis on the basis of speculation about
his status in the case.
       Finally, the evidence was significant because it tended to suggest that Willard,
who was in a position to witness the stabbing, had, in fact, seen it occur, and identified
Lowe as the stabber to the informant. The trial court did not abuse its discretion by
reopening the case.
       The trial court properly exercised its discretion when it denied Lowe’s motion for
mistrial as well. Willard’s in custody statement to the informant was inconsistent with
his trial testimony, and therefore admissible both for the truth of the matter asserted
(Evid. Code, § 1235) and for impeachment of his credibility. As the court aptly noted,
there was no facial indication that Willard was repeating something that he heard from a
third party to the informant. Willard said that Keisha’s brother had killed Lister. He did
not say that Keisha told him she planned to report her brother. From the testimony and
videos played for the jury, it was clear that Willard was in a position to see who stabbed
Lister, and very likely made the statement based on his own perceptions. To the extent



                                             28
that Willard’s testimony brought into question whether he saw the stabbing or heard
about it on the street, it was the jury’s role to weigh the evidence and decide the facts.


Prosecutorial Misconduct


        Defendants contend the prosecutor committed misconduct by misstating the law
regarding the natural and probable consequences theory of second degree murder in
closing argument. They concede that counsel did not object to the prosecutor’s
statements at the time or seek an admonition, but argue that doing so would have been
futile in light of the denial of Scott’s motion for mistrial, in which Lowe joined.
Alternatively, they argue trial counsel rendered ineffective assistance. Both arguments
fail.


        Proceedings


        In rebuttal argument, the prosecutor stated that the act of pulling Lister’s chain
constituted both a robbery and a battery, and could be considered to evaluate defendants’
guilt under the natural and probable consequences theory of second degree murder.
Armstrong’s counsel objected to the argument with respect to the felony murder rule.
The prosecutor explained she intended to make the argument with respect to the natural
and probable consequences theory only. The court asked the prosecutor to rephrase her
argument. The prosecutor then argued:
        “The natural and probable consequence of engaging in this type of behavior, the
chain yanking, unlawful touching, the fighting, the huddle, the tussle, the natural and
probable consequence of any of that is that someone can die. Both of the defendants who
testified admitted that can happen with ordinary people that are getting together, working
together to assault someone. But even more so with gang members who are in a criminal
organization for the purpose of doing so. So any sort of event where the consequence of
that is dangerous to human life.”

                                              29
       There was no objection to these statements during argument.
       The prosecutor later argued: “Even if you think, for some reason, [the taking of
the chain is] harmful touching, if you thought I’ll pull you out of here, it’s not a robbery,
that’s a battery. Harmful[,] offensive touching, grabbing. That you can use as a natural
and probable consequence. Natural and probable consequence of that under the situation
instigating a violent confrontation with someone can lead to murder.”
       She reminded the jurors twice after this that if it had any questions regarding the
law, thought she misstated the law, or if she and defense counsel disagreed on the law,
the judge was the final authority, and the jury should ask the court questions.
       When the jury began deliberations, Scott’s counsel moved for mistrial, arguing
that the prosecutor’s statements that someone “can die” or “get killed” were very
different from the standard that “under all of the circumstances, a reasonable person in
the defendant’s position would have known the commission of the murder was a natural
and probable consequence of the commission of the robbery.” The court denied the
motion without comment.


       Law


       “The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “‘unfairness as to make the resulting conviction a denial of due process.’”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial. [Citation.] In order
to preserve a claim of misconduct, a defendant must make a timely objection and request
an admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44
Cal.4th 332, 359.)



                                             30
       When a claim of misconduct is based on the prosecutor’s comments before the
jury, “‘“the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427 (Bryant).) “‘In
conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553-554.) “Even where a
defendant shows prosecutorial misconduct occurred, reversal is not required unless the
defendant can show he suffered prejudice. [Citation.]” (People v. Fernandez (2013) 216
Cal.App.4th 540, 564.) “Under traditional application of this state’s harmless error rule,
the test of prejudice is whether it is ‘reasonably probable that a result more favorable to
the defendant would have occurred had the district attorney refrained from the comment
attacked by the defendant. [Citations.]’ [Citation.]” (People v. Bolton (1979) 23 Cal.3d
208, 214.)


       Discussion


       With respect to forfeiture, defendants’ argument that an objection would have
been futile lacks merit. In his motion for mistrial, Scott’s counsel argued that the
prosecutor’s burden of proof was lessened with respect to robbery, not assault and
battery. Because the issue was not raised on the same specific grounds, there is no basis
for believing it would have been futile.
       Regarding ineffective assistance of counsel, we are again faced with a silent
record that deprives us of an adequate basis to conclude a decision not to object warrants
relief. Counsel may have concluded, for example, that the comment was not
objectionable when viewed in light of the prosecution’s entire argument. On this record,
we cannot say that either counsels’ representation was deficient.
       On the merits, defendants argue the prosecution’s statement that a natural and
probable consequence of an assault and battery is that someone “can die” rather than be

                                             31
murdered lowered the burden of proof. We conclude there is no reasonable likelihood
that the jury construed or applied the prosecutor’s remarks in an objectionable fashion.
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.]’”’” (People v.
Stanley (2006) 39 Cal.4th 913, 951.) The prosecutor was not explaining the law to the
jury when she made the challenged remarks. She was arguing what could happen under
general circumstances, not as laden with danger as the circumstances of this case were.
Soon afterwards, she argued that murder was a natural and probable consequence of
assault and battery under the specific circumstances presented, in conformance with the
standard. The prosecutor also admonished the jury twice that the judge was the authority
on the law, not counsel, and she acknowledged that she might make mistakes or disagree
with defense counsel on interpretation of the law. Viewed in the context of her rebuttal
as a whole, the impact of the remarks is slight, at most. (See People v. Dennis (1998) 17
Cal.4th 468, 522 [prosecutor’s statements must be viewed in context of her entire
argument].) Additionally, the trial court instructed the jury, “You must follow the law as
I explain it to you . . . . If you believe that the attorneys’ comments on the law conflict
with my instructions, you must follow my instructions.” (CALCRIM No. 200.) The jury
was also properly instructed on the natural and probable consequences theory of second
degree murder with CALCRIM No. 403. Jurors are presumed to be intelligent and
capable of correctly understanding the court’s instructions. (People v. Lewis (2001) 26
Cal.4th 334, 390; People v. Sanchez (2001) 26 Cal.4th 834, 852.) We do not see any
reason to conclude that the jury incorrectly applied the law.
       Having failed to establish either deficiency of counsel or prejudice, defendants
have not demonstrated constitutionally ineffective assistance of counsel. (See
Cunningham, supra, 25 Cal.4th at p. 1003.)




                                             32
Inattentive Juror


       Defendants contend the trial court failed to conduct a sufficient inquiry of a juror
suspected of sleeping, and improperly declined to dismiss the juror. We cannot conclude
that the court abused its discretion under the circumstances.


       Proceedings


       Scott’s counsel requested a sidebar during Lowe’s counsel’s cross-examination of
Johnson. He informed the court: “Your Honor, I have observed that Juror number 5 has
nodded off more than once since [Lowe’s counsel] has been up there. I think she actually
fell asleep and kind of woke herself up. I ask the court to watch her.” The court stated
that it had not noticed anything about the juror, but that it would watch her.
       Five days later, during the prosecutor’s redirect examination of Officer Romo,
Scott’s counsel again expressed his concern about the juror to the trial court:
       “[Scott’s counsel]: I’ve been watching Juror 5. She’s been nodding off.
       “The Court: I’ve been watching her too. I know she had closed her eyes, but she
seems to open them at the appropriate times. I don’t think she’s sleeping, but if you
detect that, make some -- give me some signal.
       [¶] . . . [¶]
       “[Scott’s counsel]: Your honor, when I say ‘nodding off,’ I notice -- when we
catch ourselves falling asleep, you’re doing that.
       “The Court: Okay.
       “[Scott’s counsel]: That --
       “The Court: Sometimes cross-examination does that to people.”
       Two days later, while Lowe’s counsel was introducing exhibits, he requested a
recess on behalf of his client and Scott. Outside the presence of the jury, Scott’s counsel
asked that Juror No. 5 be dismissed for “nodding off, sitting there with her eyes closed.”
The court asked the prosecutor for her position:

                                             33
       “[Prosecutor]: My position is the court at this point -- since there is a claim by the
defense, by [Scott’s counsel] -- I haven’t seen her nod off. I don’t know if the court has,
but he’s now made a record, and I think the court needs to -- if the court has made any
observations, the court can put those on the record or conduct inquiry just to make sure
there’s no appellate issue with respect to juror misconduct.
       “The Court: Sure. I think that makes sense. I’ll ask her to come out and ask if
she’s able to pay attention. I have noticed her eyes have been closed for portions of the
trial. I didn’t conclude that she was sleeping.”
       Scott’s counsel stated that his client had pointed out the issue to him. Willard’s
counsel stated: “I did see her looking down, and I saw her open her eyes. I don’t know if
she was asleep or just looking down. So I’m not prepared to say she was or was not
nodding off.” The court asked if other defense counsel joined in the request.
Armstrong’s counsel joined, stating that he “[made] the same observations as the court.”
Lowe’s counsel stated that Lowe had made “similar observations,” and joined. Willard’s
counsel said, “I would suggest she be examined by the court and know -- everybody has
their own mannerisms . . . .”
       Juror No. 5 was questioned by the court:
       “The Court: Ma’am, during the trial, I noticed there were occasions when you had
your eyes closed, and it wasn’t entirely clear to me whether you were sleeping or just
resting your eyes. You need to be honest with me. Were there portions of this trial
where you were asleep and not able to pay attention?
       “Juror No. 5: I was not asleep. I was more a little drowsy.
       “The Court: Were you able to listen to the testimony when it was given?
       “Juror No. 5: Yes.
       “The Court: Were you able to look at the exhibits when they were presented on
the overhead?
       “Juror No. 5: Yes.
       “The Court: All right. If it turns out you become drowsy and need a break, will
you let me know?

                                             34
       “Juror No. 5: Sure.”
       Afterwards, Willard’s counsel expressed concern that the juror had said she was
“drowsy.” He stated, “I wasn’t sold on this before, but I do think, in an abundance of
caution, she should be replaced.” The prosecutor objected: “Being drowsy? Many
people are drowsy. She said she was not asleep. [¶] . . . [¶] [Neither] [t]he court nor
counsel indicated she was nodded off for a period of time. She simply had her eyes
shut.” Scott’s counsel responded that he did not believe it was his job to watch jurors,
and suggested that Juror No. 5 was not forthcoming. The court ruled: “I understand your
position. I’ll deny the request. I didn’t see her sleeping. I saw her closing her eyes. She
gave an explanation. I believe her. If necessary, I’ll make further inquiry . . . .”
       During Lowe’s counsel’s closing argument, Scott’s counsel raised the issue again
at a recess. Counsel stated that he had noticed Juror Nos. 5 and 7 nodding off. Juror No.
7 “was very brief. Probably resting his eyes.” “But [Juror] Number 5 was nodding off, I
don’t want to say continuously, but enough to cause me to be concerned.” The court
responded, “Are you asking me to do something then?” Counsel stated that he would like
the court to remind the jurors to let the judge know if it needed a break. He was “not sure
if [asking for mistrial was] appropriate . . . .” He noted, “If I cough, sometimes it wakes
her up.” The court stated that counsel should “[f]eel free to cough,” and that if anyone
felt the jury needed a break to stretch to let the court know. Lowe’s counsel observed: “I
noticed yesterday, during [Scott’s counsel’s] clever argument, and intermittent humorous
lines, she did have her head down, but on the one or two times when he was actually
funny, she actually laughed.” The court noted that it made the same observation.
       Juror No. 5 remained on the jury.


       Law


       “The trial court has the authority to discharge jurors for good cause, including
sleeping during trial. [Citation.] When the trial court receives notice that such cause may
exist, it has an affirmative obligation to investigate. [Citations.] Both the scope of any

                                             35
investigation and the ultimate decision whether to discharge a given juror are committed
to the sound discretion of the trial court. [Citation.]” (People v. Bonilla (2007) 41
Cal.4th 313, 350.) “‘“The court does not abuse its discretion simply because it fails to
investigate any and all new information obtained about a juror during trial.”’ [Citation.]”
(People v. Bradford (1997) 15 Cal.4th 1229, 1348 (Bradford).)
       “‘[A]lthough implicitly recognizing that juror inattentiveness may constitute
misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts
on the ground of inattentiveness during trial. . . . Many of the reported cases involve
contradicted allegations that one or more jurors slept through part of a trial. Perhaps
recognizing the soporific effect of many trials when viewed from a layman’s perspective,
these cases uniformly decline to order a new trial in the absence of convincing proof that
the jurors were actually asleep during material portions of the trial. [Citations.]’
[Citation.]” (Bradford, supra, 15 Cal.4th at p. 1349.)


       Discussion


       Although Scott’s counsel believed that Juror No. 5 was sleeping, none of the other
attorneys was able to say definitively whether she was sleeping or intermittently resting
her eyes. The court appropriately questioned Juror No. 5 as to whether she had fallen
asleep, and she stated she had not. The court also verified that Juror No. 5 listened to all
of the testimony, and observed all of the exhibits. It impressed upon the juror the
seriousness of the issue, reminding her that she needed to tell the truth. The court stated
on the record that it did not observe the juror sleeping, and believed her when she stated
that she had not fallen asleep in trial. There was no reason for the court to conduct
further inquiry when Scott’s counsel again complained about Juror No. 5’s perceived
inattentiveness during closing argument. The court was receptive to the complaint, and
offered to give the jurors a break to stretch if counsel felt it was needed. It asked
specifically what counsel wanted it to do. Counsel did not request further inquiry. He
asked that the court continue to observe Juror No. 5, which the court agreed to do. There

                                             36
were no other indications that the juror was inattentive in any way. Where, as here, there
is merely a dispute about whether a juror is attentive, the court is within its discretion to
deny a request to excuse the juror. (See Bradford, supra, 15 Cal.4th at p. 1349 and cases
cited therein.)


Involuntary Manslaughter Instruction


       Lowe argues the court should have instructed on involuntary manslaughter as a
lesser included offense of murder. He contends the jury could have convicted him of
aiding and abetting involuntary manslaughter, if it found that involuntary manslaughter
was a natural and probable consequence of assault or battery, but murder was not a
natural and probable consequence.9


       Law


       In People v. Woods (1992) 8 Cal.App.4th 1570, 1577, the court held that “an aider
and abettor may be found guilty of a lesser crime than that ultimately committed by the
perpetrator where the evidence suggests the ultimate crime was not a reasonably
foreseeable consequence of the criminal act originally aided and abetted, but a lesser
crime committed by the perpetrator during the accomplishment of the ultimate crime was
such a consequence.” Involuntary manslaughter is a killing “in the commission of an

       9 Scott  joined in this contention, but did not supply any additional argument on the
issue of aider and abettor liability under the natural and probable consequences doctrine
as it applies to his circumstances, which differ substantially from Lowe’s. Although
joinder in argument is broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), each
defendant must demonstrate error and prejudice (People v. Coley (1997) 52 Cal.App.4th
964, 972; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“Because of the
need to consider the particulars of the given case, rather than the type of error, the
appellant bears the duty of spelling out in his brief exactly how the error caused a
miscarriage of justice”]). Scott’s sole reliance on Lowe’s arguments and reasoning is not
sufficient to satisfy his burden on appeal. (See People v. Nero (2010) 181 Cal.App.4th
504, 510.) We therefore consider the issue as to Lowe only.

                                              37
unlawful act, not amounting to a felony; or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution and
circumspection.” (§ 192, subd. (b).) Involuntary manslaughter may be a lesser offense
included within the offense of murder. (People v. Abilez (2007) 41 Cal.4th 472, 515.)
“Due process requires that the jury be instructed on a lesser included offense . . . when
the evidence warrants such an instruction. [Citations.]” (People v. Gutierrez (2002) 28
Cal.4th 1083, 1145.) “[T]he ‘substantial’ evidence required to trigger the duty to instruct
on such lesser offenses is not merely ‘any evidence . . . no matter how weak’ [citation],
but rather ‘“evidence from which a jury composed of reasonable [persons] could . . .
conclude[ ]”’ that the lesser offense, but not the greater, was committed. [Citations.]”
(People v. Cruz (2008) 44 Cal.4th 636, 664.) Speculation is insufficient to require the
giving of an instruction on a lesser included offense. (People v. Mendoza (2000) 24
Cal.4th 130, 174.) We review de novo the claim that a trial court failed to properly
instruct the jury on the applicable principles of law. (People v. Cole (2004) 33 Cal.4th
1158, 1215.)


       Discussion


       The trial court did not err by failing to sua sponte instruct on involuntary
manslaughter under the natural and probable consequences theory, because there was no
substantial evidence to support the offense. Lowe’s defense was that he did not see the
gang attack on Lister or participate in any way. He presented no evidence that he
intended to aid and abet an assault or battery, let alone that he could not have reasonably
foreseen murder would be a natural and probable consequence of those offenses under
the circumstances. The prosecutor proceeded on the theory that Lowe stabbed Lister,
directly causing his death, and presented evidence in support of that theory. Her only
question for the jury in closing with respect to Lowe was whether Lowe’s murder of
Lister was deliberate and premeditated. As neither party relied on, or presented evidence
in support of, the natural and probable consequences theory as applied to Lowe, it was

                                             38
not necessary for the trial court to instruct that, under that theory, defendant may only
have been guilty of involuntary manslaughter. The incidental fact that Keisha and
Johnson claimed not to have seen anyone stabbing Lister was insufficient to support an
involuntary manslaughter instruction as a lesser included offense of a theory of liability
that was not before the jury.
       Finally, given the complete lack of evidence, Lowe cannot establish prejudice
based on the failure to instruct on involuntary manslaughter. (Cal. Const., art. VI, § 13;
People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Watson (1956) 46 Cal.2d
818, 836.)


Cumulative Error


       Defendants contend that cumulative errors at trial deprived them of due process.
As we have concluded that the trial court did not err, the contention necessarily fails.
(See People v. Hines (1997) 15 Cal.4th 997, 1062.)


Robbery-Murder Special-Circumstance Sentence


       Scott contends that the trial court’s stated imposition and stay of the robbery-
murder special-circumstance sentence was unauthorized and must be stricken. The
Attorney General disagrees, arguing that Scott forfeited the issue by failing to raise it at
the sentencing hearing, but that in any case Scott’s contention is without merit. We agree
with Scott.
       The jury convicted Scott of second degree murder (§ 187), but also made the
legally superfluous true finding that that the murder was committed while he was
engaged in the commission of a robbery pursuant to section 190.2, subdivision (a)(17).
At sentencing, the trial court imposed a sentence of 15-years-to-life on the second degree
murder count, plus a term of 10 years on the gang enhancement (§186.22, subd.
(b)(1)(C)). The court stated that it was imposing and staying sentence on the robbery-

                                             39
murder special circumstance, but the court did not orally pronounce a sentence on the
special circumstance finding.
       Section 190.2, subdivision (a) provides, “The penalty for a defendant who is found
guilty of murder in the first degree is death or imprisonment in the state prison for life
without the possibility of parole if one or more of the following special circumstances has
been found under Section 190.4 to be true: [¶] (17) The murder was committed while the
defendant was engaged in, or was an accomplice in, the commission of, attempted
commission of, or the immediate flight after committing, or attempting to commit, the
following felonies: [¶] . . . [¶] (A) Robbery in violation of Section 211 or 212.5.” By its
own terms, section 190.2 is inapplicable where the defendant is convicted only of second
degree murder.
       “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331,
354.) “‘[Such] obvious legal errors at sentencing that are correctable without referring to
factual findings in the record or remanding for further findings are not waivable.’
[Citation.]” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)
       In this case, there is no scenario under which a sentence to life without parole or
death may be imposed pursuant to section 190.2, because Scott was not found guilty of
first degree murder. The forfeiture rule has no application to this entirely unauthorized
finding. The judgment must be modified to strike the jury’s true finding on the robbery-
murder special circumstance.


Calculation of Custody Credits


       The trial court awarded Scott credit for 645 days in actual custody based on
Scott’s counsel’s representation that he spent 645 days in custody. The abstract of
judgment and the November 4, 2014 minute order also reflect the credit for Scott as 645
actual days in custody. However, Scott was arrested on January 26, 2013, and remained
in custody until sentencing on November 4, 2014, a total of 648 days.

                                             40
       The trial court correctly calculated Lowe’s actual days in custody, and awarded
him 742 days of actual custody credit. However, the abstract of judgment and the
November 4, 2014 minute order improperly reflect the credit for Lowe as 645 actual days
in custody.
       Generally, it is the duty of the trial court to determine the periods of a defendant’s
custody and the number of days to be credited. (§ 2900.5, subd. (d).) When the facts are
undisputed, however, a defendant’s entitlement to custody credits presents a question of
law for the appellate court’s independent review, as the trial court has no discretion in
awarding custody credits. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474.) We
may correct clerical errors at any time so that the record reflects the actual facts. (In re
Candelario (1970) 3 Cal.3d 702, 705; In re Roberts (1962) 200 Cal.App.2d 95, 97.)
       As the Attorney General concedes, both errors are clerical in nature, and the
abstracts of judgment must be corrected to accurately reflect the actual custody credits as
to each defendant.




                                              41
                                     DISPOSITION


       With respect to Scott, the special circumstance finding under Penal Code section
190.2, subdivision (a)(17), is stricken, and the judgment is modified accordingly. The
November 4, 2014 minute order and abstract of judgment must also be amended to reflect
a total of 648 days of actual custody as to Scott. With respect to Lowe, the November 4,
2014 minute order and abstract of judgment must be amended to reflect a total of 742
days of actual custody. The trial court is directed to prepare amended abstracts of
judgment reflecting these modifications and to forward certified copies of the amended
abstracts to the Department of Corrections and Rehabilitation. The judgment is otherwise
affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              BAKER, J.




                                            42
