P. v. Morales

Filed 2/17/16 P. v. Morales CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS NUMBERTO MORALES et al.,
Defendants and Appellants.
B253249
(Los Angeles County
Super. Ct. No. KA098830)
APPEALS from judgments of the Superior Court of Los Angeles County, Bruce F.
Marrs, Judge. Affirmed in part and reversed in part.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and
Appellant Carlos Numberto Morales.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant Arthur John Quesada.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant Phillip Joseph Jojola.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant Robert Epifano Sanchez.

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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Mark E.
Weber and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
INTRODUCTION
Defendants Carlos Numberto Morales (Morales), Arthur John Quesada (Quesada),
Phillip Joseph Jojola (Jojola), and Robert Epifano Sanchez (Sanchez), all members of the
same criminal street gang, attempted to extort money from Andres Vargas (Vargas) by
threatening to harm him if he did not pay them $300. When Vargas did not pay, Morales
shot Vargas multiple times, seriously injuring him.
A jury convicted defendants of the following crimes: (1) conspiracy to commit
murder (Pen. Code,1 § 182, subd. (a)(1); count 1); (2) attempted willful, deliberate, and
premeditated murder (attempted premeditated murder) (§§ 187, subd. (a), 664, subd. (a);
count 2); (3) attempted extortion (§ 524; count 3); and (4) false imprisonment (count 4).
On count 4, Morales, Quesada, and Jojola were convicted of false imprisonment by
violence, menace, fraud, or deceit, while Sanchez was convicted of the lesser included
offense of false imprisonment (§§ 236, 237, subd. (a)). The jury also found true: the gang
allegation (§ 186.22, subd. (b)) against all defendants on all counts; the firearm allegation
(§ 12022.53) against all defendants on counts 1 and 2; and the great bodily injury
allegation (§ 12022.7, subd. (b)) against Morales on counts 1 and 2.
The trial court sentenced each defendant to 25 years to life on count 1 (§ 182,
subd. (a)), plus an additional 25 years to life for the firearm enhancement (§ 12022.53,
subds. (d), (e)), for a total indeterminate term of 50 years to life on count 1. For Morales,
the court also imposed the minimum 15-year parole eligibility term required by
1 All further statutory references are to the Penal Code.

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section 186.22, subdivision (b)(5). The court stayed the sentence on the remaining counts
pursuant to section 654 for all defendants. For Quesada, the court also found true the
prison prior allegation (§ 667.5, subd. (b)) but struck the additional punishment for that
enhancement (§ 1385, subd. (c)(1)).
Four principal challenges are raised in this appeal: first, Morales contends that the
trial court erred in denying his motion to continue the trial; second, all defendants claim
that the trial court erred in instructing the jury on conspiracy to commit murder; third, all
defendants challenge the sufficiency of the evidence on the conspiracy and attempted
premeditated murder counts and on the gang allegation; and fourth, Morales contends
that the trial court erred in denying his motion for a new trial. We affirm as to Morales.
As to the remaining defendants, we affirm on all but the conspiracy to commit murder
count.
FACTUAL BACKGROUND
A. THE PROSECUTION’S CASE
Defendants Morales (aka Popeye), Quesada (aka Baby), Sanchez (aka Big Boy),
and Jojola (aka Giant) were members of the 18th Street gang. Vargas, the shooting
victim, and his friend Bellanira Figueroa (Figueroa) knew the defendants but were not
members of their gang. The events leading to the shooting of Vargas occurred over the
course of three days in July 2012.
1. The Events Surrounding the Shooting
On July 6, 2012, Vargas and Figueroa went to Quesada’s house in Baldwin Park to
smoke methamphetamine with defendants. Quesada’s mother owned the house, and
Jojola lived there with Quesada and others. After smoking methamphetamine, Morales
asked Vargas, who was driving a Jeep, to take him for a ride. Vargas, accompanied by
Figueroa, drove Morales to El Monte. Morales brought with him a wig, a .357 Smith and
Wesson revolver, and a pillowcase. Upon arriving in El Monte, Morales got out of the
Jeep, robbed a pizza store, ran back to the Jeep, and directed Vargas to take off. Morales,
Vargas, and Figueroa returned to Quesada’s house and smoked more methamphetamine
with Quesada, Jojola, and Sanchez.

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Later that night, Vargas drove Morales and Figueroa to another pizza store in
South El Monte—which Morales robbed. After the robbery, they drove to a house in
Monterey Park, where Vargas’s friend Justin lived, as Morales wanted to sell
methamphetamine to Justin. Vargas knew, but did not tell Morales, that the house was in
a “hot” area—i.e., an area that the police frequently patrolled.
When they arrived at Justin’s house, Justin was not home. Morales and Vargas
went inside the house to await Justin’s return, while Figueroa waited in the Jeep. As they
were waiting, a police car drove by and flashed a light on Justin’s house. By text
message, Figueroa alerted Vargas to the police’s presence. Minutes later, Morales left
the house, got into the driver’s seat of the Jeep, and drove away with Figueroa, while
Vargas remained in the house.
The police officer, who had continued to watch Justin’s house, followed the Jeep
in his patrol car. The officer activated his lights to stop the Jeep for a traffic violation.
Morales refused to comply, leading to a police chase. Morales successfully avoided the
pursuit and returned to Justin’s house, parked the Jeep nearby, and ran away, leaving his
cell phone in the Jeep. Figueroa did not accompany Morales, but instead ran to Justin’s
house.
On July 7, 2012, the next evening, Vargas and Figueroa drove to Quesada’s house
to return Morales’s cell phone to him. Vargas went inside and returned the phone, while
Figueroa waited in the Jeep. All four defendants were in the house at the time. While in
Jojola’s room, Morales and Quesada accused Vargas of “setting [Morales] up” with the
police the previous night. The defendants then directed Vargas to the backyard to
continue the discussion. Vargas sat down on the backyard stairs with each defendant in
close proximity: Morales was in front of Vargas; Quesada was kneeling or leaning down
directly behind Vargas; Sanchez sat at a patio table behind Vargas; and Jojola was
standing nearby.
While outside, Morales and Quesada continued to confront Vargas about the prior
evening’s events with the police. They told Vargas that the “set up” was a sign of
“disrespect[],” and that Vargas had disrespected not only Morales but “all of them.”

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Morales and Quesada explained that Vargas would have to pay $300 for his disrespect.
Vargas did not have the money with him. Morales then left to get Figueroa from the
Jeep, brought her to the backyard, and sat her next to Vargas. Vargas told her that
defendants “were asking him for $300 . . . [b]ecause [Morales] felt disrespected.”
Morales and Quesada repeated the demand for $300, and threatened that Vargas
needed to get the money “or else.” Vargas understood this to be a threat on his life. The
threat was accompanied by violence. Quesada struck Vargas with a closed fist to the
back of his head and hit Vargas twice more with blows to his forehead. Morales and
Quesada told Vargas that he could not leave until they got the money, and that Figueroa
would have to raise the money for him.
Morales told Figueroa that she had until 1:18 a.m. to get the money, and that it
would be her “ass” too if she did not do so. Quesada then told Jojola to walk Figueroa
out to the Jeep. As Jojola walked her out, he told her: “Everything will be okay. Just get
the money.” After Figueroa left the house, she did not call the police because she
believed defendants would kill Vargas if she did.
On July 8, 2012, in the early morning hours, Figueroa continued her search to
raise the money. During that time, Morales dragged Vargas to another area in the back of
the house. Morales and Quesada then assaulted Vargas, punching and kicking him while
he was on the ground. Quesada also struck Vargas with a heavy object that was placed in
a sock.
Throughout the early morning, Morales and Jojola continued to follow up with
Figueroa about the money. Jojola sent a series of increasingly ominous text messages,
warning Figueroa that time was running out. He wrote: “Two can play games, you’ve
got until 3:18 and game over”; “3:10 now, hurry up, time is running”; and “look hurry the
fu[c]k up.” Figueroa did not meet the 3:18 a.m. deadline and was never able to raise the
$300.
For the rest of the day, Vargas’s movements were closely monitored and
controlled. Quesada gave him permission to take a shower. After he showered, Vargas
went into the living room, where Sanchez was sitting on a couch. Morales then took

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Vargas on four trips out of the house that day using Jojola’s car. Each time Morales
carried a gun in his waistband; and each time he followed the same ritual, requiring
Vargas to walk in front of him as Morales followed from behind while holding his gun
The first trip occurred before daylight. Morales and Quesada tied Vargas’s hands
with rope and placed him in the back of Jojola’s car. Morales drove Vargas around the
area without any apparent destination and then returned to the house, where Quesada,
Jojola, and Sanchez remained. Later that day, Morales took Vargas to a motel, knocked
on a motel room door, and left when he received no response. Morales drove back to
Quesada’s house, went inside with Vargas, and left a couple of minutes later. Morales
next drove Vargas to the apartment of Monica Freire (Morales’s friend), where they all
smoked methamphetamine for about an hour. Morales and Vargas again returned to
Quesada’s house. Jojola and Sanchez were still in the house. Morales and Vargas
remained there for more than an hour before they left for their fourth and final trip
together.
On their final trip, Morales told Vargas that he would drive him to Vargas’s house.
But Morales did not drive in the direction of Vargas’s home and instead took him to a
more secluded area in the mountains. Morales stopped the car and ordered Vargas to get
out. Vargas pleaded with Morales that “he didn’t have to do this.” Morales insisted that
Vargas leave the car. As Vargas took his first step out, Morales shot him twice, striking
him in the buttocks. Morales then left the car and continued to shoot Vargas four more
times, striking him in the hip, groin, and chest.
Vargas survived the shooting, but sustained life-long, debilitating injuries. He is
paralyzed from the chest down, with only limited use of his hands, and requires around-
the-clock care.
2. The Investigation and Arrest of Defendants
On July 10, 2012, Covina Police Officer Oswaldo Preciado received a dispatch
that a suspicious person was knocking on doors and asking for help at a West Covina
apartment complex. Officer Preciado went to the complex and found Morales hiding
behind a dryer in the laundry room. Morales was sweating profusely and appeared

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nervous, disoriented, and confused. He said he was being chased and had been stabbed,
though there was no evidence of a stabbing. The officer did find a .357 Smith and
Wesson revolver covered by a bloodstained tee shirt in the laundry room and a wallet
belonging to someone in the apartment complex. Officer Preciado believed that Morales
was under the influence of methamphetamine. Based on his paranoia and suicidal
statements, Morales was hospitalized on a 72-hour psychiatric hold. In the hospital,
Morales admitted that he had been using methamphetamine.
As part of the investigation into the shooting of Vargas, the investigating officer
spoke with Vargas and Figueroa. Vargas identified defendants as being involved in the
events surrounding the shooting. Figueroa described defendants as follows: (1) Morales
was “the main person running the show,” who “was basically taxing [Vargas] the $300”;
(2) Quesada was the man who “hit [Vargas] in the face”; (3) Sanchez was the man who
“didn’t allow [Vargas] to leave”; and (4) Jojola “was the one who was texting and
calling” her.
On July 26, 2012, the investigating officer executed a search warrant at Quesada’s
house. The house had been vacated, but Quesada was found and arrested later that day at
Freire’s apartment. Jojola was found and arrested a few days later, and Sanchez was
found and arrested in December 2012.
3. The Gang Evidence
Los Angeles Police Officer Daniel Garcia testified as the prosecution’s expert on
criminal street gangs. He testified that all four defendants were members of the 18th
Street gang with monikers and tattoos identifying them as gang members. He further
described the gang’s criminal activities.
In Officer Garcia’s opinion, the crimes in this case were committed for the benefit
of, at the direction of, or in association with the 18th Street criminal street gang. He
described the importance of “respect” in the gang culture, stating that “respect means
everything.” A sign of disrespect to one gang member, he added, is construed as a sign
of disrespect to the whole gang. Officer Garcia further testified that a gang does not
make threats lightly: If the gang issued “an ultimatum such as ‘pay us $300 or else,’”

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the gang would follow through with the threat to avoid appearing “weak.” Officer Garcia
also explained the use of the “1:18” and “3:18” deadlines for paying the money was “to
demonstrate that they’re from 18th Street.”
When Vargas testified at the preliminary hearing in this case, Morales used his
hands and the 1 and 8 tattoos on his arms to make 18th Street gang signs at Vargas.
B. THE DEFENSE CASE
Morales and Quesada each called witnesses for the defense.
1. Witnesses for Morales
Morales called two expert witnesses—one on the effects of methamphetamine (Dr.
Rody Predescu), and the other on criminal street gangs (Dr. Bill Sanders).
Dr. Predescu, a medical doctor, testified that methamphetamine is a strong
stimulant whose short-term effects can last 10 to 12 hours. Heavy users can experience
insomnia, confusion, suspicion, paranoia, and hallucinations and can become violent,
homicidal, or suicidal. “They have a very false sense . . . that they can do whatever they
please and they’re not going to be caught, they will not pay the consequences for their
acts.” The effects of long-term use can mimic paranoid schizophrenic behavior,
including suffering from hallucinations, paranoia, nervousness, and violent behavior.
Based on her review of the police and medical records, Dr. Predescu opined that Morales
was under the influence of methamphetamine at the time of the shooting, having used the
drug hours earlier, and at the time of his arrest.
Dr. Bill Sanders, a criminal justice professor, testified that respect is important in
gang culture, and that gang members earn respect by committing violent crimes against
rival gang members, not against someone who had done nothing to the gang. According
to Dr. Sanders, Vargas was not a rival gang member and did nothing to disrespect the
18th Street gang. Dr. Sanders opined that the shooting was not committed for the benefit
of the 18th Street gang, because no one from the 18th Street gang directed Morales to
shoot Vargas, no other gang member was present at the time of the shooting, and Morales
did not yell out “18th Street” as he shot Vargas. Dr. Sanders also testified that a gang
member’s use of methamphetamine carried a stigma that would bring that gang member

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less respect, and that a “hyped up” member would not gain respect for shooting an addict
who had done nothing to the gang.
2. Witnesses for Quesada
Quesada called three percipient witnesses—Freire, the woman with whom
Morales and Vargas smoked methamphetamine on the date of the shooting; Avelina
Urdiales, Quesada’s mother and owner of the Baldwin Park house; and Manuel Alderete,
a tenant in that house.
Freire testified that Morales called her around the July 6, 2012 weekend, and
asked if he could come to her apartment to smoke methamphetamine. Morales and
Vargas then arrived at the apartment between 10:00 a.m. and noon, and she smoked
methamphetamine with Morales, Vargas, and a friend of hers. Morales and Vargas
stayed at the apartment for about two hours. During that time, everyone was in a good
mood, and nothing seemed unusual. At one point, Vargas left the apartment by himself
to get a lighter from Freire’s car and then returned with the lighter. Freire did not see
Morales with a gun, and she saw no signs that Vargas had been injured in any way.
Urdiales testified next. She testified that she believed Morales, Jojola, and her son
were 18th Street gang members. She stated that her son and Jojola lived in her house in
July 2012, along with Alderete and his girlfriend, who lived in a room off the back patio.
On July 7, 2012, Urdiales returned to her house around 7:30 p.m. and saw her son,
Morales and Jojola there. At 10:00 p.m., Vargas and Figueroa arrived at the house and
went to the backyard. A few minutes later, Figueroa came inside, looking angry or upset.
Urdiales did not go into the backyard. While inside the house, she did not hear any
yelling or fighting in the backyard.
Urdiales went to sleep in her son’s room at about 1:00 a.m. on July 8th and woke
up at 6:00 a.m. At about 8:00 a.m., Vargas entered the house from the backyard, greeted
her, and got food from the kitchen. At about 8:30 a.m., Morales arrived at the house, and
he, Quesada, Jojola, and Vargas went into the backyard. At 9:00 a.m., Morales and
Vargas left the house, drove away in Jojola’s car, and returned three hours later. At about
4:00 p.m., Morales and Vargas left the house again and drove away in Jojola’s car, while

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Quesada and Jojola sat on the front porch. Urdiales left the house at 6:00 p.m. and did
not see Morales or Vargas again that day. Urdiales never saw Morales with a gun or
Vargas with his hands tied. Nor did she see any cuts, bruises, or swelling on Vargas or
hear him complain of pain or injuries.
Alderete, an ill and elderly man, testified that he spent most of his time in his room
at Quesada’s house. On July 7, 2012, Alderete left his room in the afternoon and saw a
few men on the side of the house. He returned to his room, watched television until
about 10:00 p.m., and then went to sleep. He did not hear any yelling or the sound of
anyone being beaten. On July 8, Alderete woke up at 7:00 a.m. and saw only Urdiales,
Quesada, and Jojola in the house. Later that afternoon, Alderete saw a man wearing a
wig. Alderete left the house and returned at about 3:00 p.m. and saw only Urdiales and
Jojola at that time.2
DISCUSSION
A. MORALES’S MOTION FOR A CONTINUANCE
Morales contends the trial court violated his right to due process by denying his
trial counsel’s request for a continuance to explore psychiatric issues that might support a
potential defense. We disagree.
1. Relevant Procedural Background
On June 26, 2013, the court set trial for October 21, 2013. Up to that point,
Morales had been represented by the Alternate Public Defender (APD) for at least nine
months. On June 26, Morales told the court that he wished to exercise his rights, under
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562], to represent
himself. The court continued the proceedings to July 2 to address the Faretta request.
At the July 2 hearing, the trial court fully advised Morales of his constitutional
rights and the potential consequences of self-representation, as Morales acknowledged by
signing a “Faretta Waiver” form. Morales was advised that he would be obligated to
2 Alderete acknowledged that Quesada’s brother had called or texted him several
times before trial and threatened him.

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prepare for and conduct trial, that the trial would not be continued without good cause,
and that any continuance request “made just before trial will most likely be denied.”
Morales was further advised that “if at some point, appointed counsel is permitted or
required to take over [his] case, that attorney may be at a disadvantage and that this
disadvantage cannot be considered on appeal.” The trial court granted Morales’s Faretta
request and relieved the APD as his counsel. The case remained set for trial on
October 21.
The trial court granted Morales propria persona funds and appointed a private
investigator to assist him. On August 19, the court provided additional funds and
appointed Dr. Sanders as an expert witness for Morales. On October 17, at the trial
readiness conference, the court continued the trial until October 28. On October 28, the
court revoked Morales’s propria persona status, because he had assaulted an officer in
county jail. The court appointed Charles J. Uhalley, who previously had been serving as
standby counsel, to represent Morales. An attorney standing in for Uhalley then
announced that Morales was ready to proceed with trial the following day.
On October 29, the day set for trial, Uhalley orally requested a continuance. He
stated that he did not have an opportunity to interview Morales prior to that day, and that
based on his interview and the arrest report reflecting a psychiatric hold placed on him on
the day of the arrest, he needed time to explore the “substantial psychiatric issues” in the
case. Uhalley stated that he believed that Morales was competent, but that he wanted to
pursue potential psychiatric defenses. The prosecutor objected to a continuance, noting
that Morales had been representing himself, had filed motions and discovery requests,
and had not mentioned anything about any psychiatric issues. Quesada also objected to
any continuance.
The trial court denied the motion. Addressing Uhalley, the court stated: “The
Court notes that you’re going to have Thursday and Friday of this week and Monday of
next week to explore whatever issues you wish to explore. You were appointed as stand-
by counsel . . . . And I know you were keeping track of what was going on in the case.”
Uhalley did not raise the issue again during the three-week trial, and he did not provide

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any additional information to the court about this issue in the new trial motion he filed
two months later.
2. Legal Analysis
A motion for a continuance in a criminal trial may only be granted for good cause,
and the denial of a continuance may not be so arbitrary that it violates due process.
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181.) A trial court’s denial of a
continuance is reviewed for abuse of discretion. (Ibid.) This standard affords wide
deference to the trial court’s determination, which will be upheld so long as the trial court
has not strayed from the “‘bounds of reason.’” (Ibid. [noting that “an order denying a
continuance is seldom successfully attacked”]; see also People v. Mungia (2008) 44
Cal.4th 1101, 1118.) Whether the denial constitutes an abuse of discretion depends on
the circumstances of the case, rather than on any mechanical formula. (Hajek and Vo,
supra, at p. 1181.) The party challenging the ruling bears the burden of establishing an
abuse of discretion. (Ibid.) Morales has not carried his burden here for three reasons.
First, Morales has not shown that he exercised reasonable diligence in preparing
for trial. “A showing of good cause requires a demonstration that counsel and the
defendant have prepared for trial with due diligence.” (People v. Jenkins (2000) 22
Cal.4th 900, 1037.) Morales made this request on the eve of trial. By that point, the case
had been pending for at least a year. During that time, Morales did in fact explore
“psychiatric issues”—i.e., the effect of methamphetamine on his mental state—and he
retained an expert in that field to testify at trial.
This drug-induced psychiatric issue was apparent from the outset of the case. The
arresting officer noted in his report that Morales appeared to be under the influence of
methamphetamine and paranoid at the time of the arrest. The officer therefore
transported Morales to a hospital for psychiatric evaluation. The APD, Morales, and
Uhalley would have known this from the outset of their involvement in the case. Had
Morales wished to explore any psychiatric defense other than the obvious one caused by
his extensive drug use, he had more than a year to do so. The case did not commence

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anew when Uhalley was appointed, as Morales knew when he was advised of the dangers
of self-representation.
Second, Morales did not show that the requested continuance, if granted, would be
useful. “[T]o demonstrate the usefulness of a continuance a party must show both the
materiality of the evidence necessitating the continuance and that such evidence could be
obtained within a reasonable time.” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) This
showing must be done with reasonable specificity. Section 1050, subdivision (b),
requires that the motion be supported by “affidavits or declarations detailing specific
facts showing that a continuance is necessary.”
The facts presented here fall far short of the required showing. Uhalley relied
principally on the facts surrounding the arrest, which already had been explored and led
to the retention of an expert, Dr. Predescu. Uhalley added only that Morales recently had
attacked a guard and that his recent interview of Morales suggested “substantial
psychiatric issues.” Uhalley did not provide any facts, under seal or otherwise, to support
or explain these “substantial psychiatric issues.” He did not explain what, in one
interview, he was able to learn that the APD and Morales, during the prior year of
representation, could not discern. Nor did he provide any information about the amount
of time he would need to explore these unspecified issues. In these circumstances, it was
not unreasonable for the trial court to expect more before delaying the trial, particularly
when all the other parties in this multi-defendant case were prepared to proceed.
The meager showing here stands in stark contrast to the facts in the case upon
which Morales relies. In Ake v. Oklahoma (1985) 470 U.S. 68, 71, 86 [105 S.Ct. 1087,
84 L.Ed.2d 53], the defendant’s behavior was “so bizarre” that the trial court, on its own,
ordered a psychiatric evaluation. The examining psychiatrist concluded that the
defendant likely was schizophrenic and questioned his competency to stand trial. The
trial court later found that the defendant was not competent and committed him to a state
hospital, where he remained until his sanity was restored three months later. At the
murder trial, the defendant’s sole defense was insanity, and the trial court denied the
indigent defendant’s request for funds to retain a psychiatrist. The Supreme Court found

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that the denial deprived the defendant of his right to due process, stating: “We hold that
when a defendant has made a preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial, the Constitution requires that a State
provide access to a psychiatrist’s assistance on this issue if the defendant cannot
otherwise afford one.” (Id. at p. 74.)
To the extent that Morales seeks to extract from Ake the principle that a trial court
must grant a continuance to allow preparation when a defendant has made a preliminary
showing of insanity or other mental defense, Morales has failed to satisfy the requisite
showing. A trial court is not required to accept vague and unsupported assertions on the
day of trial of the need to explore “substantial psychiatric issues.”
Third, Morales has not shown any prejudice from the denial of his motion.
(People v. Leavel (2012) 203 Cal.App.4th 823, 830 [reversal requires showing of
prejudice].) He argues on appeal that more time was required to explore the “[c]oncrete
signs of psychiatric problems.” In advancing this argument, he relies on the psychiatric
problems that resulted from drug use: “Trial counsel had observed a bizarre set of facts
which spoke to a distorted reality under methamphetamine, plus bizarre behavior shortly
after the event. [Morales] had suffered a severe psychotic episode as a result of chronic
use of methamphetamine.”
But Morales called a psychiatrist to testify about these issues at trial. Dr. Predescu
testified about the impact of methamphetamine on users such as Morales. She described
the effects in a way that explained Morales’s behavior, including the perspiration, dilated
pupils, confusion, hallucinations, paranoia, hostility, and violence. She explained that
users can become “like a walking zombie, somebody that walks, but is not conscious.”
Dr. Predescu opined that Morales was under the influence of methamphetamine at the
time of the arrest, and that his behavior at the time was consistent with the effects of that
drug. She also opined that the drug would have had similar effects on Morales had he
used it around the time he committed the crimes. Morales’s counsel relied on this
evidence in closing argument to claim that Morales did not have the specific intent to

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commit the conspiracy, attempted murder, and attempted extortion crimes because of his
methamphetamine use.
In sum, the trial court did not abuse its discretion in denying a last-minute, non-
specific, and unsupported request for continuance. Moreover, Morales has not shown
any prejudice resulting from the denial.
B. THE INSTRUCTION ON THE CONSPIRACY TO COMMIT MURDER COUNT
Defendants contend that their convictions of conspiracy to commit murder must be
reversed because the trial court’s instruction on this charge erroneously failed to include
the requirement that each defendant must have intended to kill Vargas. We agree there
was instructional error and conclude that such error requires the reversal of the
convictions on this count as to Quesada, Jojola, and Sanchez, but not Morales.
To prove that a defendant committed the crime of conspiracy to commit murder,
the prosecution must prove that the defendant intended to enter into the conspiracy and
further intended to commit the offense that is the object of the conspiracy. (People v.
Swain (1996) 12 Cal.4th 593, 600; accord, People v. Smith (2014) 60 Cal.4th 603, 616.)
In charging conspiracy to commit murder, the prosecution must therefore prove not only
that the defendant intended to conspire, but also that the defendant intended to kill the
victim. (Swain, supra, at p. 607; accord, People v. Petznick (2003) 114 Cal.App.4th 663,
680-681 (Petznick).)
The trial court instructed the jury using CALJIC. (See fn. 5, post [discussing the
differences between CALCRIM and CALJIC].) The elements necessary to prove
conspiracy to commit murder are set forth in those instructions in CALJIC No. 8.69.
This instruction defines the crime by stating: “A conspiracy to commit murder is an
agreement entered into between two or more persons with the specific intent to agree to
commit the crime of murder and with the further specific intent to commit that murder,
followed by an overt act committed in this state by one [or more] of the parties for the
purpose of accomplishing the object of the agreement. Conspiracy is a crime.” The
instruction further states that the “crime of conspiracy to commit murder requires proof
that the conspirators harbored express malice aforethought, namely, the specific intent to

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kill unlawfully another human being.” The instruction then goes on to define an “‘overt
act’” and explains that such an act must be taken by “one [or more] of the conspirators.”
(Ibid.)
The form instruction then lists all the elements that must be proved:
“1. Two or more persons entered into an agreement to kill unlawfully
another human being;
“2. [Each] [At least two] of the persons specifically intended to enter into
an agreement with one or more other persons for that purpose;
“3. [Each] [At least two] of the persons to the agreement harbored express
malice aforethought, namely a specific intent to kill unlawfully another
human being; and
“4. An overt act was committed in this state by one or more of the persons
[who agreed and intended to commit murder].” (CALJIC No. 8.69.)
The Use Note to CALJIC No. 8.69 explains that the alternative bracketed wording
is provided to address the situation that arose in People v. Liu (1996) 46 Cal.App.4th
1119, 1131, in which one of the participants in the conspiracy was a “false
coconspirator.” In Liu, three men plotted to kill the victims. One of the men was
reluctant to participate in the plan and decided to become a confidential informer (CI) for
the Federal Bureau of Investigation (FBI). Working with the FBI, the CI obtained a
recording of incriminating statements from the two other coconspirators, which exposed
the two coconspirators’ intent to kill the victims after having taken substantial steps
towards that objective. (Id. at pp. 1125-1126.) A jury convicted the defendant of
conspiracy to commit murder, among other charges. (Id. at p. 1127.)
On appeal, the court stated as an undisputed principle that “where only two
persons are involved and one is a government agent or informer, the other cannot be
convicted of conspiracy,” because “the crime of conspiracy requires at least two people to
have the requisite criminal specific intent, and a government agent by definition cannot
be a coconspirator.” (People v. Liu, supra, 46 Cal.4th at p. 1128.) The defendant in Liu
attempted to extend this principle farther, asserting that the crime of conspiracy cannot be

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committed when one of the members never intends to perform the acts constituting the
planned offense, even if two or more of the members had such an intent. (Id. at pp. 1128-
1129.) The court rejected this argument, holding: “We conclude that the feigned
participation of a false coconspirator or government agent in a conspiracy of more than
two people does not negate criminal liability for conspiracy, as long as there are at least
two other coconspirators who actually agree to the commission of the subject crime,
specifically intend that the crime be committed, and themselves commit at least one overt
act for the purpose of accomplishing the object of the conspiracy.” (Id. at p. 1131.)3
Unlike in Liu, there was no issue in this case of “feigned participation of a false
coconspirator” and thus no reason to give the bracketed alternative that requires the
prosecution to prove that “[a]t least two of the persons” specifically intended to conspire
and kill Vargas. Yet, without objection, the trial court read that formulation to the jury,
stating that the prosecution was required to prove:
1. “[T]wo or more persons entered into an agreement to kill unlawfully
another human being;
2. “[A]t least two of the persons specifically intended to enter into an
agreement with one or more other persons for that purpose;
3. “[A]t least two of the persons to the agreement harbored express malice
aforethought, namely a specific intent to kill unlawfully another human
being; and
3 The Use Note to CALJIC No. 8.69 cautions that “[t]he alternative bracketed
wording has been provided in elements 2, 3 and 4 to accommodate the situation where
there is a feigned accomplice. ‘The “feigned participation of a false coconspirator or
government agent in a conspiracy of more than two people does not negate criminal
liability for conspiracy, as long as there are at least two other co-conspirators who
actually agree to the commission of the subject crime, specifically intend that the crime
be committed, and themselves commit at least one overt act . . . .’” (People v. Liu[,
supra,] 46 Cal.App.4th [at p.] 1130 . . . .)”

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4. “[A]n overt act was committed in this state by one or more of the
persons who agreed and intended to commit the murder.”4
This rendition of the instructions for conspiracy to commit murder was erroneous.
(Petznick, supra, 114 Cal.App.4th at pp. 680-681.) In Petznick, the trial court initially
instructed the jury using the “each” version of CALJIC No. 8.69, but then revised the
instruction after an unreported sidebar conference by replacing “each” with the “at least
two” version. (Petznick, supra, at pp. 678-679.) During deliberations, the jury inquired
whether element three required that “‘all 4 conspirators harbored express malice
aforethought?’” The jury explained the reason for its question: “‘We are asking this
question because [CALJIC No.] 6.11 (Joint Responsibility) indicates that members of a
conspiracy are liable for the natural and probable consequences of the act without all 4
participants having expressed malice aforethought.’” (Id. at p. 679, italics omitted.) In
response, the trial court stated that it “‘[d]oes not require all four’” and withdrew the
“each” version from the jury instruction packet and replaced it with the “‘at least two’”
version. (Id. at pp. 679-680.)
On appeal, the court considered whether there was a reasonable likelihood that the
jury would have understood from the instruction that it was not required to find that the
4 The trial court also submitted the instructions in writing to the jury. In the written
version, the trial court combined the alternative wording, stating in elements two and
three that the prosecution had to prove: “2. Each At least two of the persons specifically
intended to enter into an agreement with one or more other persons for that purpose”; and
“3. Each At least two of the persons to the agreement harbored express malice
aforethought, namely a specific intent to kill unlawfully another human being . . . .”
When there is a conflict between oral and written instructions, the latter generally govern.
(People v. Osband (1996) 13 Cal.4th 622, 717.) No prejudicial error will occur if the trial
court provides accurate written instructions, and the mistakes in the oral version
otherwise appear harmless. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.)
Here, the written instructions did nothing to inform the jury that the “each” language—
and not the “at least two” language—applied. We therefore cannot say that “no
reasonable juror would have understood the instruction to relieve the jury of the
necessity” to prove an element of the crime. (People v. Crittenden (1994) 9 Cal.4th 83,
138.)

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defendant harbored malice aforethought. The court noted that the final version of
CALJIC No. 8.69, adopting the “at least two” version, was erroneous. The magnitude of
the error was compounded by the inclusion of the concept in CALJIC No. 6.11 that holds
a conspirator liable for the natural and probable consequences of a coconspirator, “‘even
though that crime or act was not intended as a part of the agreed upon objective . . . .’”
(Petznick, supra, 114 Cal.App.4th at p. 679, quoting CALJIC No. 6.11.)
In finding instructional error, the court reasoned: “[F]or defendant to be guilty of
the crime of conspiring to commit murder, he had to have been one of the participants
who harbored the specific intent to kill. [Citation.] The revised instruction does not say
that. It says only that ‘at least two’ of the participants must have intended to kill and does
not specify that defendant must have been one of them. Since the jury was aware that
there were four participants, the instruction erroneously permitted the jury to find [the]
defendant guilty of conspiracy to commit murder without regard to whether or not he
personally intended to kill so long as they found that at least two of the other participants
harbored that intent.” (Petznick, supra, 114 Cal.App.4th at pp. 680-681.)
The court then turned to the question whether the erroneous instruction was
prejudicial. An erroneous instruction does not automatically require reversal. Rather, the
harmless error standard, as stated in Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824, 17 L.Ed.2d 705], applies to this type of error. The test is whether it appears
“‘“beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.”’ [Citations.]” (Petznick, supra, 114 Cal.App.4th at p. 681.) Applying
this standard, Petznick concluded that the error required reversal of the conspiracy
conviction because the lack of the requisite intent was an essential part of the defense,
and the court could not find beyond a reasonable doubt that the jury’s question related to
doubts about whether the other three uncharged participants had the specific intent to kill.
(Ibid.)
The People urge this court to affirm the convictions on the conspiracy to commit
murder count despite the instructional error. They first contend that defendants forfeited
any claim of error on appeal by failing to object to the instructions as given. As a general

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rule, the failure to object to an instruction forfeits any claim of error on appeal. (People
v. Lucas (2014) 60 Cal.4th 153, 291, fn. 51, disapproved on another ground in People v.
Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) However, “no forfeiture will be found
where . . . the court’s instruction was an incorrect statement of the law [citation], or the
instructional error affected the defendant’s substantial rights. [Citations.]” (People v.
Mason (2013) 218 Cal.App.4th 818, 823; see also § 1259.) Here, the instruction was an
incorrect statement of law that calls into question whether the jury found that all essential
elements of the crime had been proved. We therefore address the merits of defendants’
claim of error. (Mason, supra, at p. 824.)
In arguing the merits, the People attempt to distinguish Petznick. They argue that
the error in this case did not come in response to a jury question that reflected confusion
about whether the prosecution had to prove that each defendant who entered into the
conspiracy had the intent to kill. The People, however, fail to demonstrate that this
factual distinction warrants a different outcome here. As was true in Petznick, the
instructions in this case included CALJIC No. 6.11 and “erroneously permitted the jury to
find [a] defendant guilty of conspiracy to commit murder without regard to whether or
not he personally intended to kill so long as they found that at least two of the other
participants harbored that intent.” (Petznick, supra, 114 Cal.App.4th at p. 681.) While
the jury did not expressly seize on the problem as was done in Petznick, we cannot say
that it is reasonably likely that the jury here would have been able to correctly navigate
this complex area of the law despite the instructional error.5
5 Our conclusion is reinforced by CALJIC No. 8.69’s formulation of the crime. In
describing the elements of the crime, the instruction states the first element as follows:
“Two or more persons entered into an agreement to kill . . . .” The next two elements
require that “[e]ach of the persons” has—or, in a feigned accomplice case, “[a]t least two
of the persons” have—the specific intent to enter into the agreement and the specific
intent to kill. Even the phrase “[e]ach of the persons” is potentially ambiguous in light of
the reference in the first element to “[t]wo or more persons.” A jury might think that the
phrase “[e]ach of the persons” refers back to the “[t]wo or more persons” in the first
element. If so, this would have the effect of interpreting elements two and three as
requiring only that “[a]t least two” of the persons have the intent to conspire and kill.

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Viewing the instructions as a whole does not alter this conclusion. The jury was
advised in CALJIC No. 6.22 that “[e]ach defendant in this case is individually entitled to,
and must receive, your determination whether he was a member of the alleged
conspiracy.” But this instruction did not cure the error in CALJIC No. 8.69, as it merely
told the jury that it had to consider individually whether “[e]ach defendant . . . was a
conspirator by deciding whether he willfully, intentionally and knowingly joined with
any other or others in the alleged conspiracy.” This instruction did not address, much
less clarify, the requirement that each defendant harbor malice aforethought. Rather, the
instruction informed the jury that to return a guilty verdict as to any defendant, it had to
find “(1) there was a conspiracy to commit the crimes [in counts 1 and 2], and (2) a
defendant willfully, intentionally and knowingly joined with any other or others in the
alleged conspiracy.” The jury reasonably would have referred to CALJIC No. 8.69 to
determine if there was such a conspiracy—and that instruction incorrectly requires a
finding that only two defendants had the intent to conspire and the intent to kill.
We cannot conclude that the erroneous instruction was harmless beyond a
reasonable doubt in the case of Quesada, Jojola, and Sanchez. In deciding this question,
we consider not only all the instructions when viewed together, but also the record as a
whole, including the closing arguments. (People v. Mason, supra, 218 Cal.App.4th at
p. 825.) The People have cited nothing in the record that would suggest that the lawyers
CALCRIM No. 563 avoids any such confusion by focusing on “the defendant” as
the subject in each stated element without any prior reference to the need for at least two
true participants to form a conspiracy. It states that the prosecution must prove: “1. The
defendant intended to agree and did agree with [one or more of] (the other defendant[s]/
[or] [other coparticipant(s)] to intentionally and unlawfully kill; [¶] 2. At the time of the
agreement, the defendant and [one or more of] the other alleged member[s] of the
conspiracy intended that one or more of them would intentionally and unlawfully kill; [¶]
3. (The/One of the) defendant[s] [or coparticipant(s)] . . . committed [at least one of] the
following over act[s] alleged to accomplish the killing . . . ; [¶] And [¶] 4. [At least one
of these/This] overt act[s] was committed in California.” The instruction then adds in a
multi-defendant case: “[The jury] must make a separate decision as to whether each
defendant was a member of the alleged conspiracy.”

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made clear to the jury that CALJIC No. 8.69 required that each defendant convicted on
the charge have the intent to kill. On the contrary, the prosecution and Morales’s counsel
repeated the “at least two” language in closing argument. None of the other counsel
clarified the error. At best, the lawyers for Sanchez and Jojola argued that their
respective clients did not have the required intent.6
Nor can we say that the evidence against Jojola and Sanchez on this charge was so
overwhelming that the jury verdict would have been the same had it been properly
instructed. (People v. Mil (2012) 53 Cal.4th 400, 417 [reviewing the record to determine
if “the record supports a reasonable doubt as to [the omitted] element of the offense”].)
The evidence of an agreement to kill Vargas was circumstantial, based on defendants’
actions and gang affiliation. In closing argument, the prosecutor acknowledged that
Morales and Quesada played a “more active” role than Jojola and Sanchez. And counsel
for Jojola and Sanchez specifically argued that there was no evidence that their respective
clients intended to kill Vargas. While there was substantial evidence to support a
conviction on the conspiracy charge, we cannot find beyond a reasonable doubt that the
jury so concluded as to Jojola and Sanchez. Thus, the convictions of conspiracy to
commit murder must be reversed as to them.
Whether reversal on this charge is required in the case of Quesada presents a
closer question. The jury concluded that “at least two” of the defendants committed this
crime. If the jury concluded that only two of the four were guilty (which we must assume
for this analysis), it is likely that Quesada would have been one of them. Next to
Morales, he played the most active role. Along with Morales, Quesada confronted
Vargas about being disrespected, demanded that Vargas pay $300 “or else,” assaulted
Vargas, refused to let Vargas leave the house, and tied Vargas’s hands with rope.
Though the evidence against Quesada was stronger than it was against Jojola and
Sanchez, we cannot find beyond a reasonable doubt that Quesada was one of the two
6 Quesada’s counsel did not address the elements of the charged crimes and instead
focused on the credibility of the witnesses.

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defendants who intended to enter into an agreement to kill Vargas. Thus, Quesada’s
conviction on this charge must be reversed.
As for Morales, there can be no reasonable doubt that the jury concluded that he
was one of the two (or more) defendants who conspired and intended to kill Vargas. (See
People v. Aranda (2012) 55 Cal.4th 342, 373-374; People v. Mil, supra, 53 Cal.4th at
p. 417.) He was central to the events: he accused Vargas of showing disrespect; he
attempted to extort Vargas; he threatened and beat Vargas; and he shot Vargas at close
range with multiple rounds. Therefore, Morales is not entitled to reversal of his
conviction of conspiracy to commit murder based on the erroneous instruction.
C. THE SUFFICIENCY OF THE EVIDENCE
Defendants contend that the evidence was insufficient to support: (1) their
convictions of conspiracy to commit murder (as to all defendants); (2) their convictions
of attempted premeditated murder (as to all defendants other than Morales); and (3) the
gang enhancement (as to all defendants).
In considering a challenge to the sufficiency of the evidence, we review the entire
record to determine if any rational jury could have found the elements of the crime or
special allegation were proven beyond a reasonable doubt. (People v. Manibusan (2013)
58 Cal.4th 40, 87.) In performing this analysis, we evaluate the evidence in the light
most favorable to the prosecution. So long as there is substantial evidence to support the
verdict, we must affirm. (Ibid.) This same standard of review applies when a defendant
challenges a finding that a crime was gang related. (See People v. Albillar (2010) 51
Cal.4th 47, 60.) Based on this standard, we reject the sufficiency challenges.
1. Morales’s Conviction of Conspiracy To Commit Murder
All four defendants contend that the evidence was insufficient to support their
convictions of conspiracy to commit murder. In light of our reversal of these convictions
as to Quesada, Jojola, and Sanchez, we address only Morales’s sufficiency challenge.
Morales asserts that there was “no evidence that his independent act of shooting
Vargas was something he conspired to do with the other three [defendants].” He argues
that there is no evidence of any agreement to murder Vargas, and no evidence that the

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threat made to Vargas (pay $300 “or else”) was intended as a deadly threat. He adds that
the subsequent facts belie any such intent, since he did not kill Vargas immediately after
Vargas failed to pay the money, but instead took him on a few trips before shooting him.
These arguments overlook key evidence and the standard of review. Viewed in
the light most favorable to the prosecution, the evidence supported a reasonable inference
that defendants had agreed to extort $300 from Vargas for showing disrespect to a fellow
gang member, and that Morales and at least one other codefendant intended the deadly
consequences if Vargas failed to pay. When Vargas entered the Quesada house, the
defendants appeared to operate in a coordinated fashion. All four defendants directed
Vargas to go to the backyard and positioned themselves around him in an intimidating
way. Morales and Quesada demanded $300 and told Vargas that he better pay “or else.”
It is reasonable to conclude that defendants had spoken about the “disrespect” that Vargas
had shown to Morales and hatched a plan to demand payment accompanied by a deadly
threat.
The fact that the phrase “or else” was not completed with the words “we will kill
you” is of little significance here. The jury reasonably could have concluded that those
words were implicit in the threat. Indeed, after making the threat, defendants
demonstrated their seriousness by falsely imprisoning Vargas, repeatedly beating him,
and imposing menacing deadlines (i.e., “1:18” and “3:18”) that suggested gang-style
consequences for failure to comply. And the consequences were swift and lethal, as
Morales shot Vargas the same day after the extended deadline had expired.
In short, the circumstantial evidence is sufficient to support the jury’s findings that
Morales and at least one other defendant agreed to kill Vargas if he failed to pay the
money, and that Morales and at least one other defendant entered into the agreement with
malice aforethought. (See People v. Prevost (1998) 60 Cal.App.4th 1382, 1399 [stating
that “conspiracy may be proved through circumstantial evidence inferred from the
conduct, relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy”].) While the jury was free to accept Morales’s argument
that he was operating independent of his fellow gang members when he shot Vargas, it

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was not compelled to do so given the evidence of concerted action, violence, threats, and
swift consequences in a gang context.
2. Quesada’s, Sanchez’s, and Jojola’s Convictions of Attempted Premeditated
Murder
Quesada, Sanchez, and Jojola were convicted of attempted premeditated murder
on the theory that they aided and abetted the attempted extortion and false imprisonment
of Vargas (the target offenses), and that the attempted murder (the nontarget offense) was
the natural and probable consequence of the target offenses. Defendants contend that the
evidence was insufficient to sustain their convictions under the natural and probable
consequences doctrine. We disagree.
The trial court instructed the jury that in order to find these three defendants guilty
of the crime of attempted murder, the People had to prove beyond a reasonable doubt
that: (1) “the . . . crimes . . . of attempted extortion and . . . false imprisonment were
committed”; (2) the defendant “aided and abetted in those crimes”; (3) “a co-principal in
[those crimes] committed the crime of attempted murder”; and (4) “the crime of
attempted murder was a natural and probable consequence of the commission of the
crimes [of attempted extortion and false imprisonment].” The court then read the
standard definition of a “natural and probable” consequence.
In challenging the sufficiency of the evidence on this charge, defendants claim that
Morales acted alone, and that they could not have foreseen that he would have driven
Vargas to a secluded area and shot him. According to defendants, while the evidence
may show that they attempted to extort money from Vargas and falsely imprisoned him,
they ceased any further criminal behavior when Vargas failed to come up with the
money. At that point, they argue, Morales went off on a methamphetamine-fueled frolic
of his own and shot Vargas—a consequence they could not possibly have foreseen.
Liability under the natural and probable consequences doctrine is determined by
an objective standard—i.e., “whether 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.’ [Citation.]” (People v. Medina (2009) 46

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Cal.4th 913, 920.) To be foreseeable under this standard, “a possible consequence” that
reasonably might have been contemplated is sufficient. (Ibid.) Reasonable foreseeability
is a fact issue to be decided by the jury based on all the relevant facts, including gang
membership. (Id. at pp. 922-923.)
Applying this standard, we reject defendants’ contention. As previously
discussed, the jury reasonably could have interpreted the attempted extortion to contain a
death threat (or at least a threat that included the real prospect of death for failure to
comply). This was not an idle threat made by a notorious loudmouth. This was a threat
from gang members who felt so “disrespected” that they beat and imprisoned a man
while they sought to collect their “tax.” According to the prosecution’s gang expert, if
the gang issued an ultimatum to “pay us $300 or else,” the gang would follow through
with the threat to avoid appearing “weak.” As gang members, Quesada, Jojola, and
Sanchez could be expected to have known this much about gang culture. They also could
be expected to have known, based on the evidence in the record, that Morales had a gun
ready to use if necessary.
Because of the close nexus between the target crimes (attempted extortion and
false imprisonment) and the nontarget crime (attempted murder), the jury had sufficient
evidence before it to find these defendants guilty of attempted murder. (See People v.
Medina, supra, 46 Cal.4th at pp. 922-923 [concluding that “the jury could reasonably
have found that . . . a gang member[] would have or should have known that retaliation
was likely to occur”].) This close connection distinguishes the cases upon which
defendants rely in bringing this challenge. (See People v. Leon (2008) 161 Cal.App.4th
149, 161 [concluding that there was no “close connection” between the crime of vehicle
burglary and witness intimidation when one of the two burglars fired a shot in the area
after a witness threatened to call the police]; U.S. v. Andrews (9th Cir. 1996) 75 F.3d 552,
556 [concluding that when brother and sister agreed to retaliate against a specific victim
who had punched the sister, the brother reasonably could not have foreseen that sister
would “impulsively and on her own” shoot others who had not previously assaulted or
antagonized her].)

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The jury also properly could find that the attempted murder was willful, deliberate,
and premeditated. Contrary to Sanchez’s assertion, this finding must not be stricken on
the authority of People v. Chiu (2014) 59 Cal.4th 155 and People v. Favor (2012) 54
Cal.4th 868. Sanchez suggests that those cases require a jury finding that he reasonably
could have foreseen an attempted premeditated murder, and the evidence does not
support such a finding. Favor, however, stands for the opposite proposition: “Under the
natural and probable consequences doctrine, there is no requirement that an aider and
abettor reasonably foresee an attempted premeditated murder as the natural and probable
consequence of the target offense. It is sufficient that attempted murder is a reasonably
foreseeable consequence of the crime aided and abetted, and the attempted murder itself
was committed willfully, deliberately and with premeditation.” (Favor, supra, at p. 880.)
Chiu expressly addressed a separate issue, one “not previously considered,” about “how
to instruct the jury on aider and abettor liability for first degree premeditated murder
under the natural and probable consequences doctrine.” (Chiu, supra, at p. 162.) In
addressing that issue, Chiu approved of the holding in Favor but found it distinguishable
in the context of first degree premeditated murder. (Chiu, supra, at p. 163 [Unlike with
attempted premeditated murder, “the connection between the defendant’s culpability and
the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability
for first degree murder under the natural and probable consequences doctrine, especially
in light of the severe penalty involved and the . . . public policy concern of deterrence.”].)
We are therefore bound by, and follow, the holding in Favor. (People v. Johnson (2012)
53 Cal.4th 519, 527-528 [“The trial court and Court of Appeal are, indeed, bound by
decisions of this court.”].)
3. The Gang Enhancements
The jury found the gang allegations to be true for each of the crimes committed.
Defendants do not appear to seriously dispute that they were fellow gang members at the
time of the crimes. They contend, however, that the evidence was insufficient to show
that the crimes were gang related. We reject this contention, as we find support in the
record for the jury’s determination that the crimes were committed “for the benefit of, at

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the direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).)
Section 186.22, subdivision (b)(1), provides for enhanced criminal penalties for
gang-related crimes. To sustain the imposition of the enhancement, “the record must
provide some evidentiary support, other than merely the defendant’s record of prior
offenses and past gang activities or personal affiliations, for a finding that the crime was
committed for the benefit of, at the direction of, or in association with a criminal street
gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762, italics omitted.) A jury
may rely on expert testimony about gang culture and habits (People v. Ferraez (2003)
112 Cal.App.4th 925, 930), but an expert’s opinion, without more, is not sufficient
(People v. Ochoa (2009) 179 Cal.App.4th 650, 657). The expert testimony must be
accompanied by “some substantive factual evidentiary basis” (id. at p. 661) “from which
the jury could reasonably infer the crime was gang related” (Ferraez, supra, at p. 931).
Defendants argue that the prosecution’s gang expert, Officer Garcia, offered
nothing more than unsubstantiated opinion that the crimes were committed for the benefit
of the 18th Street gang. Morales emphasizes that he and Vargas were on a
“methamphetamine binge,” and that he “spontaneous[ly]” shot Vargas during “a
psychotic break” because he felt “personally” disrespected. His motive was therefore
purely personal, as supported by his gang expert, Dr. Sanders.
This argument might carry more weight had Morales been acting alone. But there
was substantial evidence that Morales was acting in association with three fellow gang
members. The evidence supports a reasonable conclusion that defendants perceived the
disrespect shown to Morales to be a sign of disrespect to the entire gang. Indeed,
Quesada told Vargas that he had “[d]isrespected all of them” by placing Morales in
harm’s way. Defendants then directed Vargas to the backyard, where he was beaten by
two gang members, threatened, and ordered to pay what could be interpreted as a “tax”
imposed by gang members.

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Defendants then continued to issue threats, and did so using a vital tool of the gang
trade—gang intimidation. Morales told Figueroa that she had until “1:18” to get the
money; and, when she missed that deadline, Jojola demanded that she return with the
money by “3:18.” The repeated use of the number “18” was a thinly veiled reference to
the 18th Street gang, signaling that defendants were operating in their capacity as gang
members and that the failure to comply would come with gang-style consequences. For
the evidence to be sufficient to support the gang enhancements, defendants did not have
to express directly that which was so plainly implicit. Nor did the prosecution have to
show that another 18th Street gang member ordered the shooting. It is sufficient that
defendants acted together, in association with a criminal street gang, to exact payment for
disrespecting the gang or a gang member. (People v. Morales (2003) 112 Cal.App.4th
1176, 1198.)
The evidence showed that the crimes were not only committed “in association
with” the 18th Street gang, but that they were done so with “the specific intent to
promote, further, or assist in” criminal conduct by its gang members. As the California
Supreme Court has stated, “if substantial evidence establishes that the defendant intended
to and did commit the charged felony with known members of a gang, the jury may fairly
infer that the defendant had the specific intent to promote, further, or assist criminal
conduct by those gang members.” (People v. Albillar, supra, 51 Cal.4th at p. 68.) It was
not necessary, as defendants contend, to show that “the crimes were intended to enhance
the reputation of 18th Street” or were “broadcast[ed] to the community or to other gang
members.”
In re Daniel C. (2011) 195 Cal.App.4th 1350, cited by defendants, does not
support their position. There, three young gang members or affiliates entered a store, and
one of them, the defendant, attempted to steal a bottle of liquor. When confronted by a
store employee, the defendant raised the bottle as if to hit or throw it at the employee.
The bottle broke on a nearby machine and hit the employee, and the defendant ran out of
the store. (Id. at p. 1353.) The juvenile court found that the gang enhancement applied to
the robbery charge. (Id. at p. 1357.) On appeal, the court held that the evidence was

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insufficient to support a conclusion that the defendant committed the crime with the
specific intent to promote, further, or assist any criminal conduct by gang members. In so
holding, the court distinguished Albillar, stating: “[T]here is no evidence that [the
defendant] acted in concert with his companions. [The defendant’s] companions left the
store before he picked up the liquor bottle, and they did not assist him in assaulting [the
employee].” (In re Daniel C., supra, at p. 1361.) In contrast, the facts here clearly show
that defendants engaged in concerted action.
Applying the Albillar analysis, we find substantial evidence that defendants acted
in association with a criminal street gang with the specific intent to promote, further, or
assist gang members in that criminal conduct.
D. THE DENIAL OF MORALES’S MOTION FOR NEW TRIAL
After the jury verdict, the trial court denied Morales’s motion for a new trial,
rejecting his claim that the verdict was contrary to the evidence. Morales contends that
the trial court applied the wrong legal standard in evaluating his claim. We find that
Morales has failed to preserve this issue on appeal.
When a defendant brings a new trial motion on the ground that the verdict is
contrary to the evidence, a trial court “independently examines all the evidence to
determine whether it is sufficient to prove each required element beyond a reasonable
doubt to the judge . . . .” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) In doing
so, “the trial court accords no evidentiary deference to the verdict.” (People v. Carter
(2014) 227 Cal.App.4th 322, 327.)
In bringing his new trial motion, Morales never set forth the applicable standard.
Morales filed a four-page motion that included a two-page notice. In arguing that the
verdict was contrary to the evidence (§ 1181, subd. (6)), Morales did not cite any legal
standard or provide any substantial argument. His entire discussion of legal authority
consisted of a single (incomplete) sentence, noting that “[s]ection 1181[, subdivision] (6)
states: [¶] ‘When the verdict or finding is contrary to law or evidence.” His entire
argument on this point consisted of three sentences: “The People’s case rested on the
testimony of Andres Vargas and Bellanira Figueroa. [¶] The court instructed the jury on

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reasonable doubt, [CALJIC No.] 290. As to Carlos Numberto Morales, we submit that
Andres Vargas and Bellanira Figueroa were not credible to satisfy the requirements of
[CALJIC] No. 290 in order to sustain conviction beyond a reasonable doubt.”
(Capitalization omitted.)
At the hearing on the motion, Morales’s counsel did little more than repeat his
written argument, stating: “As to the issue of the jury not following CALJIC [No.] 290, I
would argue to the Court that . . . based on the quality and the character of the testimony
of the two main witnesses in this case, that there was insufficient believability on their
part to have found the defendant guilty beyond a reasonable doubt. And I would argue
that.” In response, the trial court commented: “[W]e may have questions about any
witness’[s] character, the quality of the testimony, [or the] opportunity to see or hear or
become aware of the matters [he or she] testify about. But that is a unique question that’s
reserved purely for the jury. They’re the ones that make the determinations as to who to
believe and how much . . . .” After making this comment, the court invited Morales’s
counsel to respond. Morales’s counsel declined.
On this record, we find that Morales has forfeited his argument about the trial
court’s use of an erroneous legal standard. The general rule is that a criminal defendant
must challenge an erroneous ruling in the trial court to preserve the issue on appeal.
(People v. McCullough (2013) 56 Cal.4th 589, 593.) This rule serves a valuable purpose:
it encourages the parties to alert the trial court to errors that may be corrected below, thus
avoiding the unfairness and inefficiency that results from raising the issues for the first
time on appeal. (Ibid.) Here, Morales deprived the trial court of the ability to correct its
misstatement of the legal standard.
Morales’s reliance on Carter is of no assistance. In Carter, the court rejected the
forfeiture claim, stating: “[The defendant] properly filed a new trial motion and argued
the correct legal standard to determine the motion. For appellate purposes, he preserved
his claim.” (People v. Carter, supra, 227 Cal.App.4th at p. 327, fn. 2.) Morales did not
argue the correct legal standard in his new trial motion, despite his contrary assertion on
appeal. Carter is also distinguishable because the trial court there clearly would have

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granted a new trial had it applied the correct standard. (Id. at p. 328 [“[t]he trial judge’s
statements reflect his belief that the prosecution did not bear its burden of proving that
[the defendant] was present and committed the burglary”].) In contrast, the trial court
here did not suggest that it disbelieved the core testimony of Vargas or Figueroa. In fact,
upon denying Jojola’s new trial motion (a ruling not challenged on appeal), the trial court
expressed confidence in the jury’s verdict, stating: “[I]t does appear that there’s ample
evidence to support the jury’s verdict. And I’m quite confident that the verdict will be
substantiated on appeal.”
Thus, we find that Morales has forfeited his argument that the trial court applied
the wrong legal standard in denying his new trial motion.
DISPOSITION
The judgment is affirmed as to Morales. As to Quesada, Sanchez, and Jojola, we
reverse the convictions on count 1 for conspiracy to commit murder and the related
enhancement on that count and otherwise affirm. If the district attorney’s office fails to
give written notice in the trial court of its intent to retry count 1 and the related gang
enhancement within 30 days of the issuance of the remittitur, the trial court shall
resentence them on the remaining counts and enhancements.
BLUMENFELD, J.*
We concur:
PERLUSS, P. J. SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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