Filed 12/16/13 P. v. Salas CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063978
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09903456)
                   v.

BENITO SANCHEZ SALAS,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       This case arises out of an altercation between members and friends of two families
who lived in the 4600 block of East Turner Avenue, Fresno.1 As of June 2009, Maria
Arceli Mendez (Arceli) and her husband, Jose Mendez (Jose), lived at 4677 with their
children, who included Esmeralda Mendez (Esmeralda), Jose Balderas, Ruben Balderas
(Ruben), and Josue Balderas (Josue). The Salas family lived at the two addresses directly
east of the Mendez residence. Benito Sanchez Salas (defendant), his daughter, and
Rebecca Hernandez (Hernandez) lived in the guest house at 4681, next door to the
Mendez home. Defendant’s father Alberto Salas, Sr. (Alberto), mother Maria Nativad
Sanchez (Maria Nativad), and brother Jose Salas (Sam) lived in the main house at that
address. Defendant’s brother Antonio Sanchez Salas (Antonio) and Antonio’s son Junior
Jesse Salas (Junior Jesse) resided at 4687, the house immediately east of 4681.
Defendant’s brother Fabian Salas (Fabian) was staying at 4687 at the time. Defendant
also had three other brothers: Miguel Salas (Miguel), Alberto Salas, Jr. (Junior), and
Santos Salas (Santos).
       On June 11, 2009, family and friends gathered at the Mendez residence for a
barbecue. A fistfight broke out between some of the Mendezes and some of the Salases,
then gunfire erupted. As a result of these events, a jury convicted defendant of the first
degree murders of Jose and Pablo Mendez (Pablo) (Pen. Code,2 § 187, subd. (a); counts 1
& 2, respectively), and the attempted premeditated murders of Eulalia Mendez (Eulalia)
and Juan Mendez (Juan) (§§ 187, subd. (a), 664; counts 5 & 6, respectively).3 As to

1     For the sake of clarity and brevity, we refer to the addresses involved by number
only. We also refer to certain individuals by their first names or the names by which they
are commonly known. No disrespect is intended.
2      All statutory references are to the Penal Code.
3     The second amended information erroneously stated Eulalia’s first name as
Eulabia. Juan was referred to throughout trial as Johnny Mendez.



                                             2.
counts 1 and 2, jurors found true a multiple-murder special circumstance. (§ 190.2,
subd. (a)(3).) As to all counts on which they convicted defendant, jurors found defendant
personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).)4 Defendant’s
new trial motion was denied, and he was sentenced to two consecutive terms of life in
prison without the possibility of parole, plus two consecutive terms of life in prison with
the possibility of parole, plus 80 years. He was also ordered to pay restitution, as well as
various fees, fines, and assessments.
       On appeal, we hold the evidence was sufficient to support the jury’s verdicts, and
defendant could properly be convicted of homicide even after the jury deadlocked, and a
mistrial was declared, with respect to Antonio. Accordingly, we affirm.
                                         FACTS5
                                              I
                                PROSECUTION EVIDENCE
       As of June 2009, the Mendez and Salas families had been neighbors for years.6
There had been no problems between the two groups until late 2008 or early 2009, when
Ruben began to have problems with Fabian and Antonio. On March 8, a fight that began
between Fabian and Ruben ended with defendant hitting and kicking Jose, and Ruben


4     Defendant was acquitted of the attempted premeditated murder of Anabel Vargas
(Vargas), as charged in count 4.
      Antonio was jointly charged with defendant in counts 1 and 2, and was alleged to
have personally and intentionally discharged a firearm, proximately causing death.
(§ 12022.53, subd. (d).) Antonio alone was charged, in count 3, with the attempted
premeditated murder of David Plascencia (Plascencia). He was not charged in counts 4
through 6. He was jointly tried with defendant, but the jury was unable to reach a verdict
on any of the charges against him, and a mistrial was declared.
5      Although some witnesses did not know the names of the members of the Salas
family, we have added those names where they have been established by other evidence.
6      Undesignated dates in the statement of facts are to the year 2009.



                                             3.
being hospitalized after Antonio struck him in the head. The police were called.
Although no arrests were made, Arceli unsuccessfully attempted to get a restraining order
against defendant, Fabian, and Antonio. After that, the Salases — particularly Fabian —
always tried to start trouble. The Mendezes called the police multiple times as a result.
       June 11 was elementary school graduation for Esmeralda and Junior Jesse. Arceli,
Jose, Ruben, Jose Balderas, and Fabian all were present at the ceremony. Afterward,
Fabian approached Ruben and they argued, with Fabian calling Ruben names and saying
something along the lines that he was going to kill Ruben or Ruben should “watch” when
he got home. Arceli called the police and Fabian accused her of being a snitch.
       The Mendez family drove home in separate vehicles. When Arceli and her
children arrived, Fabian and his parents were in front of the Salas home, but they did not
say anything to Arceli. When Jose arrived, however, Fabian started insulting him and
saying things like, “I’m going to fuck you guys all up. You guys are done.” Jose refused
to fight Fabian and told him to calm down, and Arceli again called the police. The police
talked to both families, then left. Fabian again started yelling at the Mendezes from his
house, calling them names and trying to get them to come outside.
       Vargas arrived at the Mendez house around noon. Fabian was on the front porch
at 4681, cursing and saying “disturbing” things. At one point, he waived a gun around
and told Jose it was for him. Arceli called the police again. The officers talked to the
Salases, then told Arceli everything was going to be fine, her family should continue with
the barbecue they had planned, and the police would be patrolling the area.
       The Mendezes went into the backyard and started barbecuing for Esmeralda’s
graduation party. Family members and friends arrived at different times and went to the
back to eat. During the two hours before the shootings, Vargas saw more and more
people arrive at the Salases’ location, and heard the Salases — particularly Fabian —
trying to provoke Jose.



                                             4.
        After people ate, many went to the front yard to talk and watch the children play.
Accounts of what happened next varied.
        Pablo’s wife, Maria De Jesus Mendez (Maria De Jesus), saw Alberto and Maria
Nativad arrive in a van. Maria Nativad got out, took out a gun, and gave it to one of the
young men. The young man loaded the weapon and pulled back the top. Jose said to
fight fair and not pull any guns. Vargas saw Alberto arrive in a van. He had something
in a paper bag. From the way he carried it, Vargas surmised the bag contained guns.
Alberto put the bag in the bed of Santos’s brown mini truck.7 Vargas yelled at Jose to
come back, that they had guns, but she did not believe he heard her. Ruben saw Alberto
pull up in a van. He had a black plastic trash bag. Antonio, who already had a gun, and
defendant went to Alberto’s location. When they came back out front, defendant had a
gun.8
        Others first saw guns appear just before or during the time Fabian, possibly several
other Salases, Jose, Pablo, and Juan walked out into the street, and Fabian and Jose
started arguing. Ruben saw Antonio pointing a gun at everyone during the argument.
Juan, who got in front of Jose as they walked into the street, saw more than one gun, and
a gun being passed around. Johnny Mendez, Jr. (Johnny) saw Fabian pull a gun out of a
truck. Fabian passed the gun to Antonio, and Antonio pulled back the slide. Fabian told
him no. Fabian was putting the guns away, and Juan said to put the guns down and fight
like a man or something to that effect. Fabian said, “fine, we’ll fight,” then handed the
gun to Antonio, who left for a while.



7     When interviewed by Detective Gray, Vargas said she saw the bag passed to
Santos, who pulled out guns and passed them to someone else.
8      Arceli also testified to seeing Alberto drive up in a van and get out holding a black
garbage bag she suspected contained guns. However, she said this happened right after
the police left after the first time she called them from the house.



                                             5.
       Fabian lunged toward Jose, the two started fighting, and others joined in. Shortly
after the fight started, shots were fired.
       According to Hernandez, Antonio was inside his house until after the shootings,
when he exited the residence and walked off. After the fight started, defendant shot into
the air about four times as he walked toward the crowd, where Fabian and Miguel (who
had intervened in the fight on Fabian’s behalf) were on the ground with a crowd of about
13 other men beating them up. As defendant started walking toward the street, the
Mendez family moved toward him. They looked angry. They surrounded him, then he
fired and two people who were part of that group dropped to the ground.9
       According to Arceli, Jose was on top of Fabian when Antonio came from one side,
shot Jose, and then shot Pablo. Defendant then moved closer and Antonio handed him
the gun. Defendant immediately began firing “at all the people.” Antonio got on a
bicycle and left. While defendant was firing, Maria Nativad was yelling at her sons to
kill everybody, even the mother, and not to let anybody live.
       Christina Acosta (Acosta) saw Fabian hovering over one of the Mendezes, hitting
him, when defendant, who had a gun, ran from the area of the gate at 4681 to the street.
He was “shooting all over the place” as he ran. He first aimed toward the middle of the
street, then fired in different directions. When he reached the middle of the street, he
stopped running and fired more shots. Defendant was the only person Acosta saw with a
gun, although she heard shots before she saw him shooting. She did not see anyone give
him a gun. She did not see Antonio at the scene.
       According to Jose Balderas, Antonio fired at least two shots toward Jose and
Pablo. He was six or seven to 10 feet from Jose at the time he fired. Pablo was a couple


9       When interviewed by Gray, Hernandez consistently said she did not see anyone
with guns or the shooting. Gray told her that if the shooting was self-defense, she should
tell him and explain what happened. She never gave any explanation.



                                             6.
of feet behind Jose. Jose Balderas ducked down behind a car. He saw Antonio ride off
on a bicycle, but, although he only saw the one gun, he continued to hear shooting after
Antonio was gone.10
       Emmanuu Sandoval (Sandoval) told Detective Federico that he saw three firearms
at the scene. Antonio was waving a gun as he came running from his house, and
defendant and Junior also had firearms. Antonio, who was several feet away from Jose,
pointed at Jose’s head and shot him. Sandoval surmised Antonio also shot Pablo,
because Pablo and Jose fell at the same time. Sandoval said guns were handed to Miguel
and defendant. After Jose and Pablo fell, Sandoval hid between two cars and heard
several more gunshots. He gave the impression there were multiple weapons being fired
at the same time.
       According to Ruben, defendant shot Jose. Ruben did not remember how many
times defendant fired, but “it was a lot.” He was not able to see what Antonio was doing
while defendant was firing.11
       Juan was face down on the ground when he heard three shots and then a big boom.
He looked up and saw people running everywhere and Pablo lying next to him. As he
was getting up, he saw someone pointing a gun at him. He looked the other way, heard a
bang, and thought he was hit, but he was not. He did not recall if this person fired at him,




10     Shortly after the shooting, Jose Balderas told Officer Alvarado that he saw
Antonio fire approximately nine times, and that he did not see anyone else with a
weapon. When interviewed by Gray later that night, Jose Balderas said he saw Antonio
put the gun in his pocket and flee on a bicycle.
11     When interviewed later the same day by Detective Byrd, Ruben said either
defendant or Miguel (whom Ruben could not tell apart) shot Jose and Pablo. Asked
specifically if he ever saw a handgun passed between Antonio and defendant, Ruben
stated he did not.



                                             7.
but the person was firing toward all the people who were at Jose’s house.12 Juan heard
seven shots after that.
       Johnny heard a gunshot and saw Jose fall. When Johnny looked for the gun, he
saw Antonio firing. Antonio shot three times. Johnny then moved over by Hector
Balladares’s (Balladares) vehicle. He saw Balladares with a shotgun or rifle and heard
him fire it. Although he did not see where Balladares was aiming when he fired, he
remembered Balladares standing with the gun by the door of his vehicle, aiming up.
Johnny then saw defendant, “in a panic,” shooting randomly. Johnny heard about seven
shots fired after the shotgun. He saw defendant fire the last two shots. Defendant had a
different gun than the one Johnny saw Antonio fire.13
       Balladares retrieved his shotgun from his vehicle when he saw two people with
guns. He heard three shots, but did not see who fired them. He heard someone say,
“Shoot the mom” or “Get the mom,” then saw defendant trying to shoot first Eulalia and
then Juan. Wanting defendant to stop firing, Balladares fired his shotgun up in the air.
Defendant was not the same person Balladares first saw with a gun. Balladares heard six
to eight shots after he fired his shotgun.14
       During the argument in the street, Plascencia saw a man with a gun run to the
street from the area of 4681 or 4687. Jose told him to put the gun down, then Juan and
another man started fighting. The man with the gun moved to the sidewalk. He had the
gun hidden, but Plascencia knew he had it because he did not give it to anyone. When


12     Arceli told Gray that defendant fired at Juan.
13    In his subsequent statement to law enforcement, Johnny said Antonio was the only
person he saw firing, although he knew defendant also fired because he had been told
that.
14     When shown photographic lineups containing defendant’s and Antonio’s pictures,
Balladares said defendant was the person he saw on the news, and Antonio looked like
the shooter.



                                               8.
other people jumped into the fight against Juan, Plascencia ran to try to separate them.
As he did, he was shot in the side of the face. Although Plascencia did not see who shot
him, he believed it was Antonio because Antonio was at the location that lined up with
the shot, and he was the only one Plascencia saw with a gun.
       Vargas observed one gun being put away, but another gun being taken from the
mini truck and passed hand to hand, so it was moving to the front of the group of people
associated with the Salases. Finally, one of that group fired three shots, then handed the
gun to defendant, who was the person behind him. The person who fired first aimed each
shot, whereas defendant “seemed like he was shooting ducks out there.”15 Defendant and
Vargas made eye contact, and defendant swung the firearm toward her. She threw herself
to the ground and heard the gun fire.
       According to Eulalia, Antonio ran from 4681 with a pistol in his hand and shot
Jose and Pablo. Eulalia saw and heard three shots, went to Jose, and then heard Maria
Nativad say, “kill the mother.” Eulalia saw defendant pointing a gun at her. He fired,
she turned, and the shot went by her, between her shoulder and her ear.16



15      Vargas did not know the Salases, although Jose had identified some of them for
her earlier. During the incident, she concentrated on the clothing worn by the shooters.
When interviewed by Alvarado shortly after the shootings, she said Antonio produced a
firearm and began shooting at Jose. She believed Antonio fired about nine times, and
may have handed the firearm to defendant, who also fired at Jose. She also said Antonio
left the area on a bicycle. When interviewed by Gray, she described the person who fired
the first three rounds as wearing a dark blue Polo shirt; he then handed the gun off to a
person wearing a dark blue tank top, and the second person fired five times. Defendant
was detained at the scene shortly after the shooting. He was wearing a dark blue tank
top.
16     Vargas recalled Maria Nativad pointing at Eulalia and stating “shoot the mom,”
but did not remember anyone firing in Eulalia’s direction. However, Gray found physical
evidence to support the idea that shots were fired at Juan and Eulalia as they tended to the
victims.



                                             9.
         According to Esmeralda, Jose and Fabian were on the ground, fighting, when
Antonio came from the side and shot Jose and Pablo. Antonio was “very close” to Jose
when he fired, hitting Jose in the head.17 Antonio then left on a bicycle. Esmeralda did
not know where defendant was when Jose was shot, but after, she saw defendant shooting
at “everybody” on the Mendez side. Esmeralda did not see where defendant obtained his
gun.18
         Officer Taylor arrived on the scene three minutes after being dispatched to a call
of men arguing. A number of people ran toward his patrol car, yelling that those
involved in the shooting were still at the location. They led Taylor to one of the Salas
residences and pointed out defendant and Miguel, who were standing in the front yard.
Neither had a weapon. However, results of a gunshot residue examination subsequently
conducted on defendant were consistent with him having fired a firearm.
         Officer Ruiz conducted in-field showups on the evening of the shooting with Jose
Balderas, Josue, Juan, and Ruben, in which each was shown defendant and Miguel. Jose
Balderas said “Tony Salazar” was the shooter, defendant had encouraged Fabian to fight,
and Miguel was also fighting.19 Jose Balderas said he did not see defendant with a gun.
The other three all identified defendant as the shooter. Ruben stated there was only one
shooter and defendant was the person who shot Jose and Pablo. Juan identified defendant
as the shooter and said defendant shot at him, but Juan ducked.




17       Esmeralda demonstrated the distance for Federico, who estimated it was nine to 11
feet.
18     In her call to 911, Esmeralda identified defendant as the person who shot Jose and
Pablo. At trial, she explained it was really Antonio she saw; at the time of the shooting,
she panicked and got Antonio’s and defendant’s names mixed up.
19    When shown photographs by Gray, Jose Balderas identified Antonio as the
“Tony” who shot Jose and Pablo.



                                              10.
      Autopsies revealed Pablo was shot in the left side of the head from a distance of
more than two and one-half to three feet. He also was grazed by a bullet on the left side
back. The cause of his death was “perforation of the brain due to gunshot wound to the
head.” Jose suffered a penetrating gunshot wound to the left parietal region of the head.
The bullet was fired from a distance of more than two and one-half to three feet. The
cause of his death was “penetration of the brain due to gunshot wound to the head.”
      Two expended 10-millimeter shell casings were found in proximity to the porch
area of 4681, then seven such casings in a group, then two more. The existence of 11
expended shell casings indicated the weapon was fired 11 times. Based on the physical
evidence at the scene and his investigation, Gray concluded one handgun and one
shotgun were fired during the incident.20
      Gray listened to the Hernandez and Acosta 911 calls in which the shots could be
heard. The first and second shots were almost a second apart. There was then a pause of
just under one second, then a series of six shots, each separated by approximately one-
quarter to one-half of a second. There was then a pause of over 13 seconds between the
eighth and ninth shots, just under two seconds between the ninth and 10th shots, slightly
more than four seconds between the 10th and 11th shots, and just over six seconds
between the 11th and 12th shots. The shotgun blast was the 10th shot. Gray determined
it was physically possible to pass the gun to another person in the time span between the
second and third shots.
      A magazine from a Glock 10-millimeter handgun, and an empty holster that fit a
Glock 10-millimeter handgun and in the pouch of which was a loaded magazine for the
same type of firearm, were found in the living room of 4681. A black nylon pouch
containing a 10-millimeter magazine was found in one of the bedroom closets. At 4687,

20   Numerous bullet strikes and bullet holes were found in structures west of the
Mendez residence. The shotgun was only fired once.



                                            11.
a pouch of the type used to hold a set of handcuffs, a plastic holster, and an open but
lockable handgun case labeled “Glock” were found. A box of live nine-millimeter
ammunition and a magazine for a Glock nine-millimeter handgun were in the gun case.
In a box in the detached garage was a Glock nine-millimeter semiautomatic handgun that
had one round in the chamber and five in the 10-round-capacity magazine, and that fit the
holster found in the bedroom. The firearm was registered to Antonio. A Glock 10-
millimeter handgun, that was subsequently determined to have been used to fire the 11
cartridge casings recovered from the scene, was found hidden in a woodpile behind the
garage. This gun had a bullet in the chamber and three in the 15-round-capacity
magazine.21
       The 10-millimeter handgun belonged to Purdy Rivera (Rivera), defendant’s
employer. When Rivera saw on the news that defendant had been arrested for a crime
involving a firearm, he checked the storage container in his office and discovered his gun,
extra clips and ammunition, and holster were missing. Rivera could not recall whether
defendant was employed on June 11, or if he was doing other things at the time because
work was slow. However, defendant knew the firearm was in the storage container.
Rivera did not give defendant or anyone else permission to take the gun. At one point,
Rivera and defendant, whom Rivera knew was having problems related to his neighbors,
discussed the gun, and Rivera told defendant that Nathan Hammer, another of Rivera’s
employees, might have it.




21      Bullet fragments recovered from various people and locations were either
unsuitable for comparison, or shared rifling characteristics with bullets that were test
fired from the gun, but, based on a lack of individual characteristics, yielded inconclusive
results. However, the nine-millimeter gun that was found was excluded as having fired
those bullets. For practical purposes, all the ballistic evidence at the scene came from the
10-millimeter Glock.



                                            12.
       Gray and Federico interviewed Antonio a day or so after the shooting, when
Antonio turned himself in after seeing on television that the police were looking for him.
Antonio related that the Mendez sons, who were in high school, tried to beat up Junior
Jesse, who was 12. Antonio talked to the father, who said he would talk to his son, and
things “just went off from there.” According to Antonio, the Mendez teenagers and their
father then tried to beat up Fabian at Junior Jesse’s graduation. Fabian telephoned
Antonio, who had to work that day, to tell him what happened, but Fabian was not upset.
       Antonio related that when he got home from work about 5:30 p.m., Junior Jesse
came running in and said the Mendezes were “jumping” Fabian. As Antonio came
outside to help Fabian, he heard 12 or 13 shots and what sounded like a shotgun.22 He
grabbed Junior Jesse and ran. He did not see anyone with guns or know, at the time,
whether anyone was shot.
       Antonio related that he had one weapon at his house — a nine-millimeter Glock
that was locked in a box in the closet of his bedroom. He expressed surprise when told
the gun was found at a different location, and said nobody in his household knew he had
the gun, and he had the key to the lock. Antonio denied being involved in the altercation
with the Mendezes, near the crowd of people fighting, or having a weapon in his hands.
As far as Antonio knew, none of his brothers owned a gun.
                                            II
                                  DEFENSE EVIDENCE23
       Stephen Cloyd testified as an expert regarding shotguns and ammunition. He
concluded the location at which the wadding from Balladares’s shotgun was found was


22     Antonio once took classes to be a security guard.
23     In light of the unified nature of the defense presented at trial by defendant and
Antonio, we treat all defense evidence as having been adduced on behalf of defendant,
regardless of who actually called the witness.



                                            13.
inconsistent with that gun having been fired up into the air. Rather, the shotgun was
basically parallel to the ground and had to have been aimed toward the east.
       On the night of the shooting, Josue was asked to view an in-field showup. He
identified defendant as the person who shot Jose. He did not actually see defendant shoot
Jose, he just saw defendant shooting, and that was why he thought defendant was the
perpetrator.
       After defendant was detained following the shooting, Josue attacked him and was
arrested as a result. He told the arresting officer that defendant and Antonio had guns and
were shooting, and that Antonio shot and killed Jose. Josue told the officer that he saw
Antonio pull a chrome gun, possibly a .45, from an unknown location and begin shooting.
The gun Josue saw in Antonio’s possession was a different gun than the one he saw in
defendant’s possession.
       Miguel did not reside on East Turner at the time of the shooting, but was aware of
tension between the Mendez family and his, particularly Fabian and Ruben. So far as he
knew, defendant never had any problems with the Mendezes. After the incident on
March 8, however, defendant was frustrated and worried. On or shortly after that day,
defendant and Miguel drove to the Sanger residence of Nathan Hammer, who gave
defendant a shoe box containing a gun. Defendant took it home.
       On June 11, Miguel went to his parent’s house around 11:00 a.m. or noon, after he
got off work. When he arrived, a police officer was talking to defendant and Fabian.
Miguel remained at the house until around 1:00 p.m., then left.24



24     According to Maria Nativad, she, Alberto, and Sam worked that day, harvesting
oranges. They started at 6:00 a.m. and arrived home around noon or 1:00 p.m. They
traveled in Alberto’s van. That day, as they frequently did, they brought oranges home
with them. One of them took the oranges inside in a plastic bag. At no time did Maria
Nativad see Alberto with a bag full of guns.



                                           14.
       Miguel returned to his parents’ house around 5:00 p.m. There was a large
gathering at the Mendez house. Jose and Juan were calling Fabian names and cussing at
him. Fabian responded by staring back at them. Seven or eight of the group at the
Mendez house started walking toward the street. Fabian and Miguel responded by also
going toward the street. Juan challenged Fabian to fight, and there was a lot of hollering
back and forth. Antonio and defendant were not out there.
       Fabian and Juan exchanged blows, and Fabian landed a hard one that made Juan
step back. The others then rushed Fabian. Miguel saw someone with a knife, and so he
ran to try to get people off of Fabian, who was on the ground. Miguel struck Jose, then
was himself hit in the back of the head. Miguel was on the ground near Fabian when he
heard rapid shots. He did not know how many. He did not see who was shooting, and
had not seen anybody with a gun. Everyone, including Miguel, ran.
       Miguel ran to Antonio’s house. He did not see Antonio or Junior then, but
defendant came inside when Miguel was already there. Miguel did not hide a gun. He
did not know what defendant may have done.
       Defendant testified that on March 8, he was at a grocery store when he got a phone
call that something was happening at the house. When he arrived home, he saw Alberto
and Antonio shaking hands with Jose. Defendant did not find this unusual, because they
had had arguments before, then would discuss it and shake hands.
       Defendant was sitting on the porch when he saw a group of youngsters coming
from across the street, and observed words being exchanged between Fabian, Ruben, and
Sandoval. Those three suddenly got into a fistfight. Jose threw a beer bottle at
defendant, who by this time was standing next to Alberto, and defendant and Antonio
became involved in the fight. Defendant hit Jose and knocked him down. Jose started
making threats and saying he was going to kill Fabian, and he also mentioned Alberto,




                                            15.
Maria Nativad, and defendant.25 The next day, when Jose was sober, he came over and
apologized to Alberto.
       After the incident, defendant pleaded with the responding police officer to arrest
both him and Jose, so they could resolve their issues, but the officer would not.
Defendant subsequently telephoned Rivera, then drove to his house with Miguel.
Defendant explained the situation, and asked if Rivera thought it would be wise for
defendant to obtain a gun. Rivera thought it would be, and offered to lend defendant his
firearm. Rivera said Nathan Hammer had it at his residence, so defendant and Miguel
drove to Sanger and got the gun. Defendant and Miguel returned home, and defendant
put the gun in the guest house and then later hid it in a cabinet in Maria Nativad’s
kitchen. No one else knew where it was.
       On June 11, defendant had to take care of some errands. He did not know about
the elementary school graduation. When he arrived home, he talked to Fabian about what
had gone on at the school.26 The police arrived and talked to Fabian and members of the
Mendez family, but did not do anything.


25     Defendant had never seen Jose with a weapon, but had heard shots next door.
According to Maria Nativad, Jose frequently shot from his side of the dividing fence,
near her bedroom window.
26      As Fabian was leaving the school after the graduation ceremony, he ran into Jose,
Ruben, and some other members of the Mendez family. Ruben said something about
beating Fabian, who gave him a smirk and left. Fabian did not think it was the place to
start anything, so he told Junior Jesse to go with him. When Junior Jesse did not want to
go, Fabian left him there. The Mendez family almost walked Fabian to his car, as if they
were escorting him. When he got home, he went to 4681 and told Alberto what had
happened. Fabian was angry, because it had been his nephew’s graduation and the
Mendezes had “intimidated [Fabian] out of the school.” Fabian, who admitted having a
temper and being known for fighting a lot, told his father that he wanted to fight Jose.
       Fabian was in his yard when “carloads” of people arrived. He was getting
threatened, and Jose was walking around in his front yard with a towel on his hand,
acting like he was going to shoot Fabian and saying he was going to shoot them. Fabian


                                            16.
       Later that afternoon, defendant saw a lot of males next door to 4681. This
concerned defendant, because only his parents and Sam, who is somewhat slow mentally,
lived in the front house. Defendant entered his parents’ house and encountered Alberto
coming out of his bedroom. He was on the telephone, and handed it to defendant. Al
Alarcon, who owned a real estate and construction business and had been acquainted with
the Salas family and advised Alberto for years, was on the phone. He advised defendant
to go to the courthouse and take out some restraining orders against the Mendezes.
       Defendant walked outside while still on the phone, and saw 40 people he believed
were coming to kill Alberto. The group was walking toward the driveway at 4681.
Defendant saw Fabian in the middle of the street with seven to eight people around him.
They were arguing, and it appeared they were getting ready to fight. Defendant did not
see anyone with a weapon at that point, and he walked out to where they were going to
fight. As he got closer, he noticed a Hispanic male with what defendant believed to be a
rifle, walking by the cars.27
       Afraid Fabian would be killed, defendant ran to 4681 and grabbed the gun out of
the kitchen cabinet. He chambered a round and ran back outside, firing two or three shots
into the air as he went. He ran to the location he believed allowed him the best chance of
finding the person with the rifle, and he saw Fabian getting beaten up. Defendant fired at
Jose and another individual who were kicking Fabian. Defendant believed he fired five
to six rounds at those people, although he did not know how many exactly. He “was just
shooting.”




did not see a gun at that time, although he had seen Jose with a gun before. Fabian spoke
to defendant, then called the police and told them he wanted it resolved.
27    Defendant explained that he was not familiar with guns and could not distinguish
shotguns from rifles.



                                           17.
       After defendant fired the first five or six shots, he told everybody to get back. He
panned the gun so people would know he meant business. He did not want anyone
around him, because he was looking for the man with the rifle. People stayed away from
him.
       As defendant was panning the gun, he saw the man with the rifle. The man came
from behind Balladares’s truck, lifted the rifle, and fired it defendant’s way. Defendant
fired three or four times in that direction. He may have fired one or two more shots after
that. As far as he was aware, he never fired at Vargas, Eulalia, or Juan. He never
directed any of his shots into the Mendez yard or at the Mendez house. He had no idea at
the time that Plascencia had been hit.
       Defendant believed that had he not started shooting, Fabian would have died.
Defendant had no idea where Antonio was at the time. There was “no way” Antonio
could have had Rivera’s gun; to defendant’s knowledge, Antonio did not even know
defendant had the gun.28
       After the shooting, defendant ran to Antonio’s house and hid the gun in back of
one of the garages there. He did not see Antonio any time during the incident.
Defendant came back out into the front yard when the police officers arrived and turned
himself in. He did not tell officers that he had to defend his brother. When asked what
he saw, he gave “a bunch of bullshit.”29

28     According to Maria Nativad, Antonio was not on good terms with the rest of the
family at this time. Although he was welcome at his parents’ home, he would not go
there.
29      Officer Jaime was assigned to watch defendant after defendant was detained.
Defendant related that he was in the backyard when he was told someone was fighting
with Fabian. He went to the front yard and saw seven Hispanic males beating one
Hispanic male who was lying on the street. Defendant said he did not know who the
person was, and did not know who was fighting because everything happened so fast, but
it could have been Fabian. Defendant said nothing about Fabian getting killed or
thinking he had to run out there with a gun to save his life. Although he mentioned


                                            18.
        Antonio testified that in approximately 2007 or 2008, he purchased a nine-
millimeter Glock semiautomatic firearm from a store in Fresno because he was planning
to be an armed security guard. The gun came in a lockable box with two magazines.
Antonio also bought ammunition, handcuffs, and a handcuff case. Antonio kept the gun
in his bedroom closet. He did not store it loaded.
        On March 8, Alberto talked to Jose, then called Antonio, who was at Antonio’s
house, over.30 Antonio and Jose talked, and Jose said he would talk to his son, and
Antonio should talk to Antonio’s son. Antonio and Jose were shaking hands; in
Antonio’s mind, everything was settled. However, he then saw Ruben and Sandoval
walking toward Sandoval’s house, and Fabian coming. Ruben, Sandoval, and Fabian
started arguing, then fighting. Antonio started to walk over to them, but Jose’s friend
grabbed and held him, and Josue came from the side and hit Antonio with brass knuckles.
Antonio freed himself, then hit Ruben on the side of the head.
        Between March 8 and the day of the shooting, Antonio did not have any further
problems with the Mendez family. He never displayed his gun to, or pointed it at, any of
them.
        On June 11, Antonio was unable to go to Junior Jesse’s elementary school
graduation, because he had to work. Fabian went in his place. Fabian subsequently
telephoned Antonio and said he was having problems with the neighbors at school, and


Fabian having a problem with the neighbors, he said nothing about his parents being
threatened by them. Defendant said he did not see anyone fire a handgun. However, a
shot was fired in his direction by a Hispanic male with a black shotgun, who first pointed
the shotgun at the group of males in the street. Defendant told Jaime he did not recall
exactly what happened because it happened fast.
30      The only issue Antonio had had with a member of the Mendez household as of
this time was Ruben arguing with Junior Jesse on one occasion. When Antonio asked
what the problem was, Ruben said he was just teasing Junior Jesse. Antonio asked
Ruben to please leave Junior Jesse alone, and Ruben said he would.



                                            19.
that they had tried to jump him. Fabian wanted Antonio to come home, but Antonio
could not, and he told Fabian just to stay inside.
       During the course of the day, Fabian probably called Antonio three times. During
one of the calls, Fabian said there were a lot of people over there, starting trouble with
him. Antonio, who still could not leave work, again told him to stay inside.
       Antonio finally got home around 5:30 p.m. At some point, Junior Jesse came
running in and said “they” were jumping Fabian. Antonio assumed he meant the
Mendezes, because Fabian was having problems with them. Because he had seen a lot of
people when he arrived home, Antonio grabbed his gun from its unlocked box, stuck in
one of the magazines, and started outside. As he was running from his house with Junior
Jesse behind him, he heard shooting. When Antonio actually got outside, he saw a group
of people and smoke. He did not see who shot or know if anybody got shot. He threw
his gun in the garage, then he and Junior Jesse jumped the fence and took off. Antonio
did not stay to find out what was going on, because there were a lot of people and he did
not know who was shooting. He was scared and did not want his son to get hurt. He
dropped the gun because he did not have a permit to carry it as a concealed weapon and
did not want to be carrying it around. The next day, someone told Antonio that they had
seen on television that the police were looking for him. Antonio promptly turned himself
in.
       Antonio denied shooting anyone or passing a gun to defendant. Antonio and
defendant “didn’t talk.” If they saw each other, Antonio would merely wave. They did
not have any kind of relationship, and Antonio was unaware defendant had a gun.
Shooting someone did not seem like something defendant would do.




                                             20.
                                        DISCUSSION
                                                I
                           SUFFICIENCY OF THE EVIDENCE
       Defendant contends his convictions must be reversed, or at least reduced, because
(1) there is insufficient evidence of specific intent to kill, as required to sustain the
attempted murder verdicts, and (2) there is insufficient evidence to support the jury’s
findings of premeditation and deliberation with respect to all the verdicts.
       The governing legal principles are settled. The test of sufficiency of the evidence
is whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial
evidence is that evidence which is “reasonable, credible, and of solid value.” (People v.
Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” (People
v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence
(People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses,
or resolve factual conflicts, as these are functions reserved for the trier of fact (In re
Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where the circumstances support the
trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes
the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]”
(People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is
applicable regardless of whether the prosecution relies primarily on direct or on
circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
       With these principles in mind, we examine defendant’s claims.




                                              21.
A.     Intent to Kill
       “An attempt to commit a crime occurs when the perpetrator, with the specific
intent to commit the crime, performs a direct but ineffectual act towards its commission.
[Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 36.) Attempted murder “‘requires
the specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th
733, 739.) Implied malice — a conscious disregard for life — does not suffice, even
though it would for murder itself. (People v. Stone (2009) 46 Cal.4th 131, 139-140;
Smith, supra, at p. 739.)
       A defendant’s intent is rarely provable by direct evidence. Rather, such intent
“‘must usually be derived from all the circumstances of the attempt, including the
defendant’s actions. [Citation.]’” (People v. Smith, supra, 37 Cal.4th at p. 741.) This is
so even with respect to the intent to kill (express malice) required to convict a defendant
of attempted murder. (Ibid.) The California Supreme Court has explained: “[T]he act of
purposefully firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with express malice.
That the shooter had no particular motive for shooting the victim is not dispositive,
although …, where motive is shown, such evidence will usually be probative of proof of
intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove
lethal dispositive — the very act of firing a weapon ‘“in a manner that could have
inflicted a mortal wound had the bullet been on target”’ is sufficient to support an
inference of intent to kill. [Citation.]” (Id. at p. 742.) “[E]ven if the shooting was not
premeditated, with the shooter merely perceiving the victim as ‘a momentary obstacle or
annoyance,’ the shooter’s purposeful ‘use of a lethal weapon with lethal force’ against the
victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill.
[Citation.]” (Ibid.)



                                              22.
       “‘Whether a defendant possessed the requisite intent to kill is, of course, a
question for the trier of fact. While reasonable minds may differ on the resolution of that
issue, our sole function is to determine if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citations.]’ [Citation.]”
(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.)
       Defendant was convicted of attempting to murder Eulalia and Juan. The evidence
adduced at trial is set forth at length, ante, and we need not repeat it here. We note,
however, that Acosta told Gray she saw defendant shooting between cars at the victims.
Arceli told Gray defendant was shooting at people and “just missing.” Esmeralda told
Federico that defendant shot at Juan. Eulalia testified that when she lifted her head after
looking at the bodies, she heard Maria Nativad say to kill the mother. Eulalia looked up
again, saw defendant point the gun at her, and turned to the left. He then shot at her. She
lifted her head again to look at him and she turned again, and he shot at her again and the
shot passed by her, between her shoulder and her ear. Eulalia estimated that when
defendant fired, he was about five or six feet from her. He then pointed the gun at Juan’s
head, but the police arrived at that moment. Juan testified that he was face down in the
middle of the street when he heard shots and then a boom, and as he was getting up, he
looked up and saw someone (which other evidence showed was defendant) pointing a
gun at him. He looked the other way, heard a bang, and thought he was hit, but he was
not. He did not recall if defendant fired at him, but defendant was shooting toward all the
people who were at Jose’s house. Balladares testified that the person he saw with the
weapon was close to Eulalia and Juan, and that, although Balladares did not see him
shoot anybody at that point, the gun was pointing at their heads.
       The foregoing evidence clearly is sufficient to permit a rational trier of fact to
conclude defendant specifically intended to kill Eulalia and Juan. Defendant argues,
however, that the “weight of the testimonial evidence” is that he was firing wildly,
without any particular aim. The record contains evidence supporting such a scenario, or

                                             23.
at least supporting the notion defendant was firing randomly into the crowd associated
with the Mendezes. However, “[o]ur task is not to determine, for example, whether the
weight of the evidence might favor [a lesser verdict] for either or both victims. Our task
is to determine whether there was sufficient evidence by which a rational jury could
decide” defendant harbored a specific intent to kill both victims. (People v. Nazeri
(2010) 187 Cal.App.4th 1101, 1111.)
       The California Supreme Court has determined that a person who intends to kill
can be guilty of attempted murder even if the person has no specific target in mind. “An
indiscriminate would-be killer is just as culpable as one who targets a specific person.”
(People v. Stone, supra, 46 Cal.4th at p. 140.) Moreover, even if defendant was firing
wildly at times, this does not mean he did not harbor a specific intent to kill particular
named individuals. The evidence to which defendant now points was before the jury —
as was the evidence supporting a finding he specifically intended to kill Eulalia and Juan.
(See People v. Houston (2012) 54 Cal.4th 1186, 1218-1219; People v. Jackson (1989) 49
Cal.3d 1170, 1201.)
       “‘[A]ppellants often mistakenly assume that, if the evidence against the judgment
greatly preponderates, a reversal is proper because of the absence of a substantial
conflict. [¶] The test, however, is not whether there is substantial conflict, but rather
whether there is substantial evidence in favor of the respondent. If this “substantial”
evidence is present, no matter how slight it may appear in comparison with the
contradictory evidence, the judgment will be affirmed.… “Of course, all of the evidence
must be examined, but it is not weighed. All of the evidence most favorable to the
respondent must be accepted as true, and that unfavorable discarded as not having
sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient
as a matter of law, the judgment must be affirmed.” [Citations.]’ [Citation.]” (In re
Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the

                                              24.
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
       The evidence here was clearly sufficient to support a finding of intent to kill.
Eulalia testified that she perceived the bullet, which was fired from mere feet away, going
past her head and neck area. This bullet easily could have inflicted a mortal wound had
defendant’s marksmanship been better. (Cf. People v. Ramos (2011) 193 Cal.App.4th 43,
48.) Although it is unclear whether defendant actually fired at Juan, the jury reasonably
could have concluded defendant was preparing to inflict what he intended to be a fatal
shot, when the fortuitous arrival of the police stayed his hand. (Cf. People v. Nelson
(2011) 51 Cal.4th 198, 212-213.) “‘[T]he law of attempts would be largely without
function if it could not be invoked until the trigger was pulled .…’” (Id. at p. 212.)
       Defendant is seeking to have us reweigh the evidence. That is not our function.
Substantial evidence supports the attempted murder convictions.
B.     Premeditation and Deliberation
       In order to sustain a verdict of first degree murder on a theory of deliberation and
premeditation, more must be shown than an intent to kill. (People v. Harris (2008) 43
Cal.4th 1269, 1286.)31 “In this context, ‘premeditated’ means ‘considered beforehand,’
and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of action.’
[Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767; accord, People v. Jurado
(2006) 38 Cal.4th 72, 118.) Thus, “[a]n intentional killing is premeditated and deliberate

31     Although the pertinent cases most often involve murder, the legal principles are
equally applicable to the question whether an attempted murder was premeditated and
deliberate. (See, e.g., People v. Gonzalez (2012) 54 Cal.4th 643, 663-664; People v.
Lenart, supra, 32 Cal.4th at p. 1127.)



                                             25.
if it occurred as the result of reflection rather than unconsidered or rash impulse.
[Citations.] However, the requisite reflection need not span a specific or extended period
of time. Thoughts may follow each other with great rapidity, and cold, calculated
judgment may be arrived at quickly. [Citations.]” (People v. Nelson, supra, 51 Cal.4th at
p. 213.) “Evidence concerning motive, planning, and the manner of killing are pertinent
to the determination of premeditation and deliberation, but these factors are not exclusive
nor are they invariably determinative. [Citation.]” (People v. Silva (2001) 25 Cal.4th
345, 368.) Rather, they are merely a framework for appellate review, and need not be
present in any particular combination or afforded special weight. (People v. Brady
(2010) 50 Cal.4th 547, 562.)
       Evidence adduced at trial showed a strong motive for both the murders and the
attempted murders, specifically the bad blood between the Mendez and Salas families.
Although perhaps not the primary instigator, defendant was an active participant in
previous conflicts between family members. The evidence was also conducive to a
rational trier of fact finding: Esmeralda overheard defendant and Fabian telephoning
people to come over in anticipation of trouble with those attending the Mendez barbecue,
and that the Salas family brought guns to the house the day of the shooting; defendant
surreptitiously obtained the gun used in the shooting beforehand, specifically with a view
to using it against the Mendezes; defendant retrieved the gun from his or his parents’
house before he opened fire; and defendant continued to shoot despite Juan urging him to
stop and fight without guns. A rational trier of fact further could have found — with
respect both to the murders and the attempted murders — that the gun was deliberately
aimed at the victims’ heads from a distance close enough to produce a mortal wound,
either when the victims were not looking at the shooter (in the case of Jose and Pablo) or




                                             26.
when they were in a position of disadvantage vis-à-vis defendant because they were
trying to assist other victims or were on the ground (in the case of Eulalia and Juan).32
       “[T]hough the evidence is … not overwhelming, it is sufficient to sustain the
jury’s finding [of premeditation and deliberation].” (People v. Perez (1992) 2 Cal.4th
1117, 1127; see, e.g., People v. Gonzalez, supra, 54 Cal.4th at p. 664 [sufficient evidence
of premeditation and deliberation where defendant planned to attack victim when victim
was especially vulnerable, in part because victim did not expect confrontation, and
defendant brought loaded rifle to ambush site; defendant had motive to kill victim
because of victim’s conflict with defendant’s brother; when victim fought off initial knife
attack, defendant escalated the violence by handing accomplice a loaded, cocked rifle];
People v. Nelson, supra, 51 Cal.4th at p. 213 [same; defendant “had ample time to
premeditate and deliberate” when he took up firearm, climbed out of moving car, sat on
window frame, reached across roof, braced himself, and aimed at victim]; People v.
Manriquez (2005) 37 Cal.4th 547, 577 [same; defendant and victim were engaged in
verbal altercation; several minutes elapsed, then defendant approached victim, pulled
firearm from waistband, cocked weapon, and fired several shots to victim’s head, neck,
and chest areas]; People v. Memro (1995) 11 Cal.4th 786, 863 [same; defendant had to
run from first victim’s position to second victim’s position, and cut second victim’s throat
from behind; rational jury could have concluded he “intended death and no other result”
and considered options as he ran toward second victim]; People v. Miranda (1987) 44
Cal.3d 57, 87 [same; fact defendant brought loaded gun into store and shortly after used it
to kill unarmed victim reasonably suggested defendant considered possibility of murder

32     Jurors could have accepted defendant’s testimony that he was the only shooter,
while disbelieving the portion of his testimony that was self-serving, particularly that he
was in fear Fabian would be killed. (See People v. Silva, supra, 25 Cal.4th at p. 369.) If
jurors believed Antonio shot Jose and Pablo, they still could reasonably have found
defendant acted with premeditation and deliberation.



                                            27.
in advance], disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907,
933, fn. 4.) Accordingly, defendant is not entitled to reversal of the jury’s findings that
he acted with premeditation and deliberation.
                                             II
               CONSTITUTIONAL RELIABILITY OF HOMICIDE VERDICTS
       With respect to the homicides, the prosecutor proceeded on the theory that
Antonio was the actual shooter and defendant aided and abetted him in the murders.
There was evidence to support this theory. The defense proceeded on the theory
defendant acted alone, with the killings either being justified because they were
committed in defense of a family member or constituting no more than voluntary
manslaughter. There was evidence to support the theory defendant was the actual shooter
and Antonio was not involved in the homicides.
       Jurors were told a person is guilty of a crime whether he or she committed it
personally, or aided and abetted the perpetrator, and they were instructed on all
applicable theories of liability with respect to defendant. They were not told the direct
perpetration instructions applied only to Antonio and the aiding and abetting instructions
only to defendant. Rather, they were told that, with specified exceptions not pertinent
here, all instructions applied to each trial defendant.33 Jurors deadlocked on all charges
against Antonio, and the trial court declared a mistrial as to him. The court subsequently

33      Jurors were also told that some instructions might not apply, depending on their
findings about the facts of the case; to separately consider the evidence as it applied to
each defendant and decide each charge for each defendant separately; and that they could
believe all, part, or none of any witness’s testimony. They were also told that as to
defendant, they would be given verdict forms, for each count charging murder, for guilty
of first degree murder, guilty of second degree murder, guilty of voluntary manslaughter,
and not guilty. As to Antonio, however, they would be given verdict forms, for each
count charging murder, for guilty of first degree murder, guilty of second degree murder,
and not guilty. (Antonio expressly requested that the court not give voluntary
manslaughter instructions as to him, and the court acquiesced in his request.)



                                             28.
accepted verdicts with respect to defendant; as previously described, the jury found him
guilty of first degree murder for both homicides.
       Defendant now contends the deadlock as to Antonio rendered the homicide
verdicts unreliable as to defendant. He says that “[o]nce the deadlock was declared,
aiding and abetting was no longer a proper theory of liability as to [defendant]”; hence,
the trial court should have refused the verdicts (or defense counsel should have requested
that it do so), corrected the jury instructions by removing aiding and abetting liability
from the jury’s consideration, and directed the jury to deliberate under the corrected
instructions, pursuant to which defendant could be convicted, if at all, only as a direct
perpetrator. He reasons: “[I]f there was no homicide committed by Antonio, there was
no predicate act committed by Antonio and, hence, [defendant] could not have aided and
abetted Antonio. [¶] Under these unique circumstances, the identity of the shooter was
imperative for purposes of the verdict and, given the jury’s inability to agree that Antonio
was the shooter …, it logically could not have agreed that [defendant] was guilty of the
homicides on a theory of aider and abettor liability. Consequently, … it was incumbent
upon either the trial court or defense counsel to insure that aider and abettor liability was
withdrawn from the jury’s consideration for purposes of a verdict consistent with the
requirements of federal due process.”
       When the state participates in the deprivation of personal liberty, due process
requires procedures necessary to ensure reliability in the fact-finding process. (People v.
Geiger (1984) 35 Cal.3d 510, 520, overruled on another ground in People v. Birks (1998)
19 Cal.4th 108, 136; see, e.g., Ford v. Wainwright (1986) 477 U.S. 399, 411; People v.
Mincey (1992) 2 Cal.4th 408, 445.) Inconsistent verdicts — whether on separate charges
against one defendant or with respect to codefendants in a joint trial — are not rendered
unreliable, or otherwise infirm, by virtue of their inconsistency. (See, e.g., Harris v.
Rivera (1981) 454 U.S. 339, 345 & fns. 13 & 14; People v. Thompson (2010) 49 Cal.4th
79, 119-120; People v. Avila (2006) 38 Cal.4th 491, 600; People v. Palmer (2001) 24

                                             29.
Cal.4th 856, 860-861.) Moreover, although the jury must unanimously agree the
defendant is guilty of a specific crime (People v. Russo (2001) 25 Cal.4th 1124, 1132),
“‘as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of
murder as that offense is defined by statute, [the jury] need not decide unanimously by
which theory he is guilty. [Citations.] More specifically, the jury need not decide
unanimously whether defendant was guilty as the aider and abettor or as the direct
perpetrator. [Citations.] This rule of state law passes federal constitutional muster.
[Citation.]’ [Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 408; accord, People v.
Lewis (2001) 25 Cal.4th 610, 654; see Schad v. Arizona (1991) 501 U.S. 624, 630-632
(plur. opn. of Souter, J.); People v. Ortiz (2012) 208 Cal.App.4th 1354, 1376.) “Not only
is there no unanimity requirement as to the theory of guilt, the individual jurors
themselves need not choose among the theories, so long as each is convinced of guilt.
Sometimes, as probably occurred here, the jury simply cannot decide beyond a
reasonable doubt exactly who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other.” (People v. Santamaria (1994) 8
Cal.4th 903, 919.)
       In the present case, the evidence adduced at trial unambiguously imposed on the
trial court a sua sponte duty “to instruct on aiding and abetting liability as a general legal
principle raised by the evidence and necessary for the jury’s understanding of the case.
[Citation.]” (People v. Delgado (2013) 56 Cal.4th 480, 483.) “Even without a request, a
trial court is obliged to instruct on ‘“general principles of law that are commonly or
closely and openly connected to the facts before the court and that are necessary for the
jury’s understanding of the case”’ [citation], or put more concisely, on ‘“general legal
principles raised by the evidence and necessary for the jury’s understanding of the case”’
[citation]. In particular, instructions delineating an aiding and abetting theory of liability
must be given when such derivative culpability ‘form[s] a part of the prosecution’s theory

                                              30.
of criminal liability and substantial evidence supports the theory.’ [Citation.]” (Id. at
p. 488.) As explained above, substantial evidence supported the theory defendant was
not the actual shooter where Jose and Pablo were concerned, and the prosecutor relied on
such a complicity theory. Accordingly, “[a]ccomplice liability for the [homicides] was
thus a theory raised by the evidence and necessary for the jury’s full understanding of the
case; the court [would have] erred in not instructing on this theory. [Citation.]” (Ibid.)
       Section 1161 provides, in pertinent part: “When there is a verdict of conviction, in
which it appears to the Court that the jury have mistaken the law, the Court may explain
the reason for that opinion and direct the jury to reconsider their verdict .…” Apart from
this limited circumstance, “a trial court may not decline to accept a jury verdict, or refuse
to hear the verdict, simply because it is inconsistent with another verdict rendered by the
same jury in the same case.” (People v. Carbajal (2013) 56 Cal.4th 521, 532-533; see
People v. Scott (1960) 53 Cal.2d 558, 561-562, disapproved on another ground in People
v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649.)34 There was no suggestion here the
jury mistook the law.
       Nor did the jury’s deadlock as to Antonio somehow transform aiding and abetting
into an improper theory as to defendant. Jurors were not constrained by the fact the
prosecution chose to focus on a particular theory. (People v. Barton (1995) 12 Cal.4th
186, 203; see People v. Alexander (2010) 49 Cal.4th 846, 921.) The jury unanimously
found defendant guilty, beyond a reasonable doubt, of murdering Jose and Pablo. It does
not matter whether, in so finding, any individual juror believed defendant guilty as the
direct perpetrator or as an aider and abettor, or that the juror could not decide exactly

34      We recognize no true “verdict” was returned with respect to Antonio, but find this
immaterial since it is the verdicts returned as to defendant that defendant says should
have been rejected. Just as a verdict of acquittal may be inconsistent with a verdict of
guilty, so too may a jury’s deadlock. (See People v. Nieves (1969) 2 Cal.App.3d 562,
567.)



                                             31.
what defendant did but was convinced of defendant’s guilt. That jurors could not agree
on whether Antonio was culpable does not change this or render their verdicts unreliable
as to defendant.
       Defendant quotes People v. Perez (2005) 35 Cal.4th 1219 (Perez), in which the
California Supreme Court said: “[Section 31] extends criminal liability as principals in a
crime to ‘[a]ll persons concerned in the commission of a crime,’ and all those who ‘aid
and abet in its commission.’ As this language makes plain, the commission of a crime is
a prerequisite for criminal liability. If the defendant himself commits the offense, he is
guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. It
follows, therefore, that for a defendant to be found guilty under an aiding and abetting
theory, someone other than the defendant must be proven to have attempted or committed
a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting
theory cannot be sustained.” (Id. at p. 1225, italics added.) Defendant says it is likely he
was convicted on an aiding and abetting theory without a predicate offense, because the
prosecutor was unable to prove to 12 people, beyond a reasonable doubt, that Antonio
was the shooter. Defendant says this deadlock meant the following: “Without proof of a
criminal act by Antonio to which [defendant] contributed, the prosecution could not
convict [defendant] as an aider and abettor. [Citations.]” (Id. at p. 1227.)
       The quotes from Perez must be read in context of the issues presented in that case.
So read, they do not assist defendant.
       In Perez, the defendant was arrested in possession of methamphetamine
precursors, which he said he intended to sell to a man known to him as Antonio. He was
charged with possessing precursors with intent to manufacture methamphetamine. The
prosecutor proceeded under two theories: (1) Perez was liable as a direct perpetrator
because he possessed the precursors and personally intended to manufacture
methamphetamine, or, alternatively, (2) Perez was liable as an aider and abettor because



                                              32.
he possessed the precursors with the intent to sell them to another person to be used in
manufacturing methamphetamine. (Perez, supra, 35 Cal.4th at pp. 1223-1224.)
       The high court first considered whether a person could be guilty of aiding and
abetting absent proof of criminal conduct by some direct perpetrator. (Perez, supra, 35
Cal.4th at p. 1225.) It was in this context that the court stated someone other than the
defendant had to be proven to have attempted or committed a crime before the defendant
could be convicted on an aiding and abetting theory. (Ibid.) The court observed that the
prosecutor had persuaded the trial court to give aiding and abetting instructions despite
the absence of proof of either a completed crime or an attempt, with the People arguing
that by intending to sell the precursors to Antonio, Perez aided and abetted Antonio’s
manufacture of methamphetamine. (Id. at p. 1227.) The Supreme Court held the trial
court erred in instructing on aiding and abetting: “Whether the theory was that Perez
intended to aid and abet Antonio’s actual manufacture of methamphetamine … or to aid
and abet Antonio’s possession of hydriodic acid precursors with the intent to manufacture
methamphetamine …, no evidence established that Antonio ever violated, or attempted to
violate, either statute. Without proof of a criminal act by Antonio to which Perez
contributed, the prosecution could not convict Perez as an aider and abettor. [Citations.]”
(Ibid., italics added.) The court held that under the facts of the case, “Perez could be
convicted as a direct perpetrator or not at all.” (Ibid.)35
       In its discussion of prejudice, the California Supreme Court observed: “[T]he trial
was infected by a pair of related errors. First, the trial court gave instructions on aiding
and abetting when no proof of an essential element, an attempted or completed crime by a
second party, had been introduced. Second, the trial court prevented defense counsel
from arguing that this omission was fatal — that aiding and abetting in fact required

35     The court went on to determine Perez could not be convicted as a direct
perpetrator. (Perez, supra, 35 Cal.4th at pp. 1227-1231.)



                                              33.
proof of an independent crime — and overruled the defense’s objection to prosecution
argument that omitted this element.” (Perez, supra, 35 Cal.4th at p. 1232, italics added.)
The foregoing makes it clear our state’s high court was not addressing a situation such as
confronts us in defendant’s case, and was in no way suggesting the prosecution’s failure
to prove beyond a reasonable doubt that a second party committed a crime had, in
essence, the retroactive effect of rendering erroneous an aiding and abetting theory in the
first instance. In the present case, unlike in Perez, the evidence left no doubt whatsoever
that someone committed a crime (once the jury rejected the justification defense).
Contrary to the situation in Perez, if a juror here believed Antonio was the shooter — a
scenario supported by substantial evidence — the evidence and instructions allowed him
or her to convict defendant as Antonio’s aider and abettor. If the juror did not believe the
prosecutor proved Antonio’s involvement beyond a reasonable doubt, the evidence and
instructions allowed him or her to convict defendant as the direct perpetrator. The
evidence and instructions did not permit the juror to convict defendant as an aider and
abettor of a person not shown to have committed a crime.
       For the trial court to have refused the verdicts on the homicide counts and
instructed the jury to deliberate anew on the theory defendant could only be convicted as
the direct perpetrator, would have given defendant a windfall to which he was not
entitled. It would have had the effect of requiring juror unanimity on theory, when the
law does not require such unanimity.36 “‘The fact that certain defendants may escape

36     It appears the jury found defendant to be a direct perpetrator in any event, since
jurors necessarily unanimously determined, in finding true the firearm enhancements
pursuant to section 12022.53, subdivision (c), that defendant personally and intentionally
discharged a firearm in the commission of both murders. The uncontradicted evidence
showed (as we have previously noted) that only one gun (aside from Balladares’s
shotgun) was fired in the incident. Thus, were we to find error in allowing the jury to
consider an aiding and abetting theory, we would conclude it was harmless. (See, e.g.,
People v. Chun (2009) 45 Cal.4th 1172, 1203-1205; People v. Wilson (2008) 44 Cal.4th
758, 801-802; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)



                                            34.
conviction for their crimes is not any legal or logical reason why another defendant,
where substantial evidence has been introduced to sustain his conviction, should be
exonerated and be permitted to escape punishment for his crime.’ [Citation.]” (People v.
Palmer, supra, 24 Cal.4th at p. 861.)
       In light of our conclusion, defendant’s alternative claim — that, if the trial court
had no sua sponte obligation to take corrective action, then defense counsel was
ineffective for not doing so — fails. Defendant can show neither deficient performance
nor prejudice, both of which he would have to establish in order to prevail on this claim.
(People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Pope (1979) 23 Cal.3d
412, 425; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
                                        DISPOSITION
       The judgment is affirmed.

                                                                  _____________________
                                                                            DETJEN, J.
WE CONCUR:


 _____________________
 LEVY, Acting P.J.


 _____________________
 KANE, J.




                                             35.
