P. v. Armstrong

1
Filed 8/29/11 P. v. Armstrong CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY ARMSTRONG,
Defendant and Appellant.
C063362
(Super. Ct. No. 08F05656)
Along with six others, defendant Tony Armstrong was charged
with murdering Jose Guerrero on Memorial Day in 2008. There was
no evidence defendant was present when Guerrero was shot to
death; instead, the prosecution contended defendant was guilty
of the murder because just before the shooting, he aided and
abetted the offense of fighting or challenging another person to
fight, and the murder was the natural and probable consequence
of that target offense. The jury found defendant guilty of
first degree murder, and the trial court sentenced him to 50
years to life in prison.

-- 1 of 44 --

2
On appeal, defendant contends: (1) there was no
substantial evidence he aided and abetted the target offense;
(2) the jury instructions on the natural and probable
consequences doctrine were erroneous; and (3) his trial attorney
was ineffective for failing to object to improper opinion
testimony from a gang expert and improper argument by the
prosecutor.
We conclude the evidence was sufficient to support
defendant‟s conviction and defendant has failed to prove he
received ineffective assistance of counsel; however, we agree
the jury instructions were erroneous because they did not allow
the jury to consider whether defendant might have been guilty of
only second degree murder under the natural and probable
consequence doctrine, even if the shooter committed first degree
murder. Consistent with our prior decisions on this issue, we
will reverse defendant‟s conviction and remand for a retrial
unless the People accept a reduction of the conviction to second
degree murder.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Jose Guerrero, lived on Lindley Drive in
Sacramento, in an area known as the Flats. At the time of his
death, he had lived there for about eight years with his wife,
Celica Cardenas, and their children.1
1 Together, Guerrero and Celica had two young daughters, and
Celica had three other children of her own -- a daughter and two
sons.

-- 2 of 44 --

3
The Flats is predominantly controlled by two street gangs,
the Norteños and the Bloods, both of which identify with the
color red. The Norteños and the Bloods are known to associate
with each other in the Flats. There are also Sureños in the
area, however. The Sureño street gang, which identifies with
the color blue, is the main rival of the Norteños. A Norteño
gang member would take it as a sign of disrespect if a Sureño
gang member wore blue in a Norteño neighborhood, and such an act
could lead to a verbal or physical confrontation.
The house where Guerrero and Celica lived with their
children was on the north side of Lindley between Grove Avenue
to the east and Edgewater Road to the west. The house was known
in the Flats as being associated with the Sureños. In fact,
Celica‟s 21-year-old son, Federico, who had been living in the
house off and on up until the time of the shooting, was a
validated Sureño gang member.
Defendant is a validated member of the Del Paso Heights
Bloods who goes by the nickname “T Blood.” Among others, he has
a tattoo on his stomach that reads, “Hood Boss,” a tattoo on his
left forearm that reads, “Da Flats,” and a tattoo on his back
that reads, “Blood 4 Life.”
Defendant was known to associate with Norteño gang members.
In particular, he was friends with Noe Ortiz, a Norteño
Because many of the people involved in this case have the
same surnames (e.g., Cardenas, Torres, Gonzales), to avoid
confusion we will often refer to people by their first names or
nicknames.

-- 3 of 44 --

4
associate who lived on the northwest corner of Lindley and
Edgewater, down the street from Guerrero‟s house. Defendant was
also friends with Jose Gonzalez (also known as Pepe), a friend
of Noe‟s who is a validated Norteño gang member. Defendant and
Pepe sold “weed” back and forth to each other.
Noe and Pepe were part of a group of friends -- all of whom
are associated with the Norteño gang -- who went to Grant High
School and hung out together. The other members of the group
were Pepe‟s brother, Juan Carlos Gonzalez (also known as Cho
Che); Jaime Torres; Jaime‟s brother, Hugo Torres; Jaime and
Hugo‟s uncle, Sergio Torres; and Mario Vargas. Jaime, Hugo,
Sergio, and Vargas are all Norteño gang members (Vargas is
validated), and Juan Carlos is a Norteño associate.
In the early evening on Memorial Day in 2008, Guerrero was
sitting out in front of the open garage door of his house
visiting with a friend and the friend‟s two children. One of
the friend‟s children, Christian, who was 15 years old, was
wearing a blue baseball cap and long blue shorts.
While they were sitting there, Christian noticed a Hispanic
male drive by twice on a four-wheeled motorcycle, staring and
“giving [them] a bad look.” Fifteen to 30 minutes later,
Christian saw a blue car with four or five people in it driving
past from east to west. The person in the front passenger seat,
who was wearing a red bandana covering his nose and mouth, was
leaning out of the car window flashing a gang sign --
specifically, an “L” made with his thumb and forefinger, which
Christian understood to be a Norteño gang sign signifying the

-- 4 of 44 --

5
“l” in Gardenland. The car was initially going fast as it
approached Guerrero‟s house, but it slowed down for the speed
bump in the street just beyond Guerrero‟s driveway, then sped
away.
Around this same time (7:00 p.m.), down Lindley to the
west, about three houses west of the intersection with
Edgewater, Luis Cabrera was in his front yard barbecuing when he
saw a blue Chevrolet four-door “going really fast” westward on
Lindley with “somebody hanging out the window.” Cabrera could
tell the driver was a black man, but could not tell more than
that because the car was going too fast; he did, however,
recognize the car as one defendant regularly drove. (Other
evidence confirmed that the blue Chevrolet Lumina with the grey
hood was defendant‟s car.) The person hanging out the front
passenger window was a Hispanic male who had a “red rag”
covering his face and was throwing gang signs. The car drove
past Cabrera‟s house and out of sight.
Thinking that the guy wearing the red rag going by
Guerrero‟s house might be some kind of gang challenge, Cabrera
walked from near his front door, where he was standing when the
car went by, to the sidewalk and looked back up the street.
There, he saw two cars parked near the intersection of Lindley
and Edgewater -- a white car he did not recognize and a two-tone
Chevelle he recognized as one that Pepe drove. He also saw four
or five Hispanic males, including “the guy with the rag on his
face,” “[k]ind of like power walking” from out of his view on
Edgewater, turning up Lindley toward Guerrero‟s house, pulling

-- 5 of 44 --

6
up their pants and cinching their belts as if they were
preparing for a fight.2 Cabrera recognized Pepe as being among
that group.
Cynthia Gutierrez, Noe‟s girlfriend at the time, lived on
the south side of Lindley, approximately midway between
Guerrero‟s house and the intersection of Lindley and Edgewater.
She was sitting in a car in front of her house with a friend
when she saw Pepe and Jaime, who had a red bandana on his face,
walking fast up Lindley toward Guerrero‟s house. They looked
mad and like they were about to fight. Gutierrez moved the car
down the street and parked in front of the friend‟s house, which
was across the street and two houses down from Guerrero‟s house.
When she got out of the car, Gutierrez saw Jaime and Guerrero
yelling at each other.
2 An aerial photograph of the neighborhood shows that after
crossing Edgewater, Lindley bends southwest, then -- about six
houses past Cabrera‟s -- turns 90 degrees to the northwest
where, one house later, it dead ends into Redondo Avenue, such
that the houses on the north side of Lindley (including
Cabrera‟s) back up to the houses on the south side of Redondo.
Following Redondo northeastward, the street bends to the east
just before it crosses Edgewater two houses north of Edgewater‟s
intersection with Lindley. The block on Redondo between Lindley
and Edgewater consists of 12 houses. Thus, a car passing
Cabrera‟s house could follow Lindley to its end, turn right on
Redondo and be at the intersection of Redondo and Edgewater, two
houses north of the intersection of Edgewater and Lindley,
within a matter of moments.
In fact, Cabrera estimated that it was “within about two
minutes” from the time he saw the blue car pass his house until
he saw the group walking up Lindley toward Guerrero‟s house.

-- 6 of 44 --

7
Meanwhile, about 10 minutes after the blue car drove past
Guerrero‟s house, Christian saw “like 15” or “like 20 people”
walking up to the house from the west. One of them, who was
wearing a red bandana on his face and whom Christian thought was
the same person who had leaned out of the blue car when it drove
by, came onto the sidewalk, while the others remained in the
street. (Based on Gutierrez‟s testimony, and other evidence,
the person with the red bandana on the sidewalk was Jaime.)
Jaime said, “where are your cousins,” then began moving up the
driveway cursing repeatedly, “where are the fucking scraps?”
“Scrap” is a derogatory word for a Sureño. At some point,
Jaime, who was in the middle of the driveway, stared at
Christian, who was wearing blue, pulled out a gun and showed it
to them, then put it back. Jaime then backed up.
When Guerrero saw the gun, he stood up and took out his
cell phone and announced two or three times that he was calling
the police. Jaime told him not to call the police, that they
only wanted to talk to “the cousins” -- which Christian
understood to refer to Celica‟s sons, Roberto and Federico.
When Guerrero did not put down the phone, Jaime took out his gun
again and pointed it at Guerrero. Guerrero dropped his cell
phone and rushed at Jaime, then grabbed him and started
wrestling with him. The struggle moved from the driveway, onto
the sidewalk, and into the street. As Guerrero struggled to get
the gun, the bandana slipped from Jaime‟s face, and he struggled
to pull it back up. Guerrero managed to hit the gun and knock
it out of Jaime‟s grasp into the street, where the rest of the

-- 7 of 44 --

8
group was standing. One of the members of the group picked up
the gun and approached to where Guerrero and Jaime were still
struggling against each other. He pointed the gun at Guerrero
and fired once, but missed. He fired a second time, and the
bullet struck Guerrero in the head, penetrating through his
brain into his neck. Guerrero immediately fell forward on his
face and later died at the hospital from the gunshot wound.
Meanwhile, when Guerrero fell, Jaime and everyone else in
the street ran back down Lindley toward Edgewater. Vargas (who
testified at trial under a grant of immunity) admitted to police
he was outside Noe‟s house with Noe, Pepe, Juan Carlos, Hugo,
and Sergio. He claimed he remained at the corner, and while he
said he did not remember whether his friends walked up the
street, he did tell the police they came running back, and Jaime
said “„[m]an, that guy just shot.‟”
According to Vargas, he, Pepe, Juan Carlos, Sergio, and
Hugo fled in the Chevelle, while Jaime left in another car. On
a nearby street (Arcade Boulevard), the Chevelle got stuck
briefly on a tree stump that was in the road. When the two
front occupants got out of the car, they were holding large beer
bottles. They managed to free the car from the stump and drive
away, but they left one of the beer bottles behind, as well as a
trail of fluid from the car. The next morning, the police
followed the trail to the home of Pepe and Juan Carlos.
Meanwhile, about three to five minutes after the Chevelle
drove away leaving the beer bottle behind, a police car came by
and the witness who saw the Chevelle pointed the police in the

-- 8 of 44 --

9
direction the car went. The police officer immediately departed
without further conversation. A minute or so later, another
police officer came by, and the witness told that officer what
she had seen. The officer told her to watch the bottle, then
left in the direction the other officer had gone.
Five or 10 minutes later, a black SUV came by. Defendant
was one of the occupants of the SUV. As the SUV was driving
down Arcade, defendant told the driver to stop. When the SUV
stopped, defendant got out and picked up the beer bottle that
had been left behind by the occupants of the Chevelle, then got
back in the SUV. During the incident, the witness watching the
bottle heard someone in the SUV say, “Get that bottle so they
can‟t get any prints off it.”
In September 2008, the People charged defendant, Pepe, Juan
Carlos, Noe, Hugo, Jaime, Sergio, and Vargas with Guerrero‟s
murder. (The People later dropped the charge against Vargas and
granted him immunity for his testimony.) The information
included allegations that at least one principal intentionally
and personally discharged a firearm, causing death, and that the
crime was committed for the benefit of, at the direction of, and
in association with a criminal street gang.
The prosecution‟s theory against defendant was that
defendant aided and abetted the crime of fighting or challenging
another person to fight by driving some of the Norteños by
Guerrero‟s house just before the confrontation, and the murder
of Guerrero was a natural and probable consequence of that
target offense.

-- 9 of 44 --

10
The jury found defendant guilty of first degree murder and
also found the firearm use and gang enhancement allegations
true. The trial court imposed a sentence of 25 years to life on
the murder charge and a consecutive sentence of 25 years to life
on the firearm use enhancement.3 Defendant timely appealed.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant contends his murder conviction must be reversed
because there was insufficient evidence he aided and abetted the
target offense of fighting or challenging another person to
fight (Pen. Code, § 415, subd. (1)).4 More specifically,
defendant asserts “there was grossly insufficient evidence . . .
that [he] had knowledge of the perpetrator‟s purpose to commit
the target offense, that [he] had the intent of at least
encouraging or facilitating commission of the target crime and
that [he] acted to aid, promote, encourage or instigate the
commission of the crime.”
As we will explain, we disagree. Although the evidence was
circumstantial, that evidence, when viewed in the light most
favorable to the jury‟s verdict, was nonetheless sufficient to
3 Pursuant to subdivision (e) of Penal Code section 12022.53,
no sentence was imposed on the gang enhancement. (See People v.
Brookfield (2009) 47 Cal.4th 583.)
4 That statute makes it a misdemeanor for a person to
“unlawfully fight[] in a public place or challenge[] another
person in a public place to fight.”

-- 10 of 44 --

11
allow the jury to conclude three things beyond a reasonable
doubt. First, the jury could have reasonably concluded that
defendant aided, promoted, or encouraged his Norteño gang member
friends to commit the offense of fighting or challenging another
person to fight when he drove some of them by Guerrero‟s house,
then dropped them off just down the block, from where they
immediately proceeded to Guerrero‟s house for the confrontation
that resulted in Guerrero‟s death. Second, the jury could have
reasonably concluded that when defendant drove by Guerrero‟s
house and dropped his cohorts off nearby, he knew they intended
to pick a fight with Guerrero or with other persons at the
house. And third, the jury could have reasonably concluded that
when he drove by Guerrero‟s house and dropped his companions
off, defendant intended to aid, encourage, or facilitate their
commission of the crime of fighting or challenging another
person to fight. Accordingly, the evidence was sufficient to
convict defendant of murder as an aider and abettor under the
natural and probable consequences doctrine.
A
Standard Of Review
“Whether a person has aided and abetted in the commission
of a crime ordinarily is a question of fact. [Citations.]
Consequently, „“all intendments are in favor of the judgment and
a verdict will not be set aside unless the record clearly shows
that upon no hypothesis whatsoever is there sufficient
substantial evidence to support it.”‟” (In re Lynette G. (1976)
54 Cal.App.3d 1087, 1094.)

-- 11 of 44 --

12
“„In determining whether a reasonable trier of fact could
have found defendant guilty beyond a reasonable doubt, the
appellate court “must view the evidence in a light most
favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce
from the evidence.”‟ [Citation.] The same standard also
applies in cases in which the prosecution relies primarily on
circumstantial evidence.” (People v. Young (2005) 34 Cal.4th
1149, 1175, italics omitted.)
“„“If the circumstances reasonably justify the trier of
fact‟s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.”‟”
(People v. Bean (1988) 46 Cal.3d 919, 933.) “„An appellate
court must accept logical inferences that the [finder of fact]
might have drawn from the circumstantial evidence.‟” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“Circumstantial evidence is like a chain which link by link
binds the defendant to a tenable finding of guilt. The strength
of the links is for the trier of fact, but if there has been a
conviction notwithstanding a missing link it is the duty of the
reviewing court to reverse the conviction.” (People v. Redrick
(1961) 55 Cal.2d 282, 289-290.)
B
Aiding And Abetting Liability
“[A] person aids and abets the commission of a crime when
he or she, acting with (1) knowledge of the unlawful purpose of

-- 12 of 44 --

13
the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense,
(3) by act or advice aids, promotes, encourages or instigates,
the commission of the crime.” (People v. Beeman (1984) 35
Cal.3d 547, 561.)
“Except for strict liability offenses, every crime has two
components: (1) an act or omission, sometimes called the actus
reus; and (2) a necessary mental state, sometimes called the
mens rea. [Citations.] This principle applies to aiding and
abetting liability as well as direct liability. An aider and
abettor must do something and have a certain mental state.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Thus, under the
elements stated in Beeman, the “act” component of aiding and
abetting consists of doing something that aids, promotes,
encourages, or instigates the commission of a crime, while the
“mental state” component consists of knowing the unlawful
purpose of the perpetrator and intending to commit, encourage,
or facilitate the commission of the offense.
Additionally, there must be a concurrence between the act
and the mental state -- that is, “„the two elements of crime
must be “brought together” in the sense of a causal relation
between the mens rea and the actus reus. Stated in other words,
the actus reus must be attributable to the mens rea . . . .‟”
(People v. Martinez (1984) 150 Cal.App.3d 579, 602-603,
disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d
577, 628, fn. 10.)

-- 13 of 44 --

14
Thus, to be guilty of a crime as an aider and abettor, the
defendant must have engaged in the act that aided, promoted,
encouraged, or instigated the commission of a crime by the
perpetrator because he knew the unlawful purpose of the
perpetrator and he intended to commit the crime with the
perpetrator or intended to encourage or facilitate the
perpetrator‟s commission of the crime.
“[I]n general neither presence at the scene of a crime nor
knowledge of, but failure to prevent it, is sufficient to
establish aiding and abetting its commission. [Citations.]
However, „[a]mong the factors which may be considered in making
the determination of aiding and abetting are: presence at the
scene of the crime, companionship, and conduct before and after
the offense.‟” (People v. Campbell (1994) 25 Cal.App.4th 402,
409.)
C
The Natural And Probable Consequences Doctrine
“[A] defendant may be held criminally responsible as an
accomplice not only for the crime he or she intended to aid and
abet (the target crime), but also for any other crime that is
the „natural and probable consequence‟ of the target crime.”
(People v. Prettyman (1996) 14 Cal.4th 248, 261.)
“The test for an aider and abettor‟s liability for
collateral criminal offenses . . . is objective; it is measured
by 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

-- 14 of 44 --

15
abetted.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
“In criminal law, as in tort law, to be reasonably foreseeable
„[t]he consequence need not have been a strong probability; a
possible consequence which might reasonably have been
contemplated is enough. . . .‟” (Ibid.) Furthermore, the test
“is case specific, that is, it depends upon all of the facts and
circumstances surrounding the particular defendant‟s conduct.”
(Ibid.) “A reasonably foreseeable consequence is to be
evaluated under all the factual circumstances of the individual
case [citation] and is a factual situation to be resolved by the
jury.” (People v. Medina (2009) 46 Cal.4th 913, 920.)
D
Analysis
With the foregoing legal principles in mind, we turn to
defendant‟s argument challenging the sufficiency of the
evidence. Before we do so, however, we pause to set forth one
more very important principle of law applicable to the issue
before us. As we explained several years ago in People v.
Sanghera, supra, 139 Cal.App.4th at pages 1573-1574: “Perhaps
the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the
appellant‟s burden to affirmatively demonstrate error.
[Citation.] Thus, when a criminal defendant claims on appeal
that his conviction was based on insufficient evidence of one or
more of the elements of the crime of which he was convicted, we
must begin with the presumption that the evidence of those
elements was sufficient, and the defendant bears the burden of

-- 15 of 44 --

16
convincing us otherwise. . . . [¶] . . . [¶] [T]o prevail on a
sufficiency of the evidence argument, the defendant must present
his case to us consistently with the substantial evidence
standard of review. That is, the defendant must set forth in
his opening brief all of the material evidence on the disputed
elements of the crime in the light most favorable to the People,
and then must persuade us that evidence cannot reasonably
support the jury‟s verdict. [Citation.] If the defendant fails
to present us with all the relevant evidence, or fails to
present that evidence in the light most favorable to the People,
then he cannot carry his burden of showing the evidence was
insufficient because support for the jury‟s verdict may lie in
the evidence he ignores.”
In arguing that the evidence here was insufficient to find
defendant aided and abetted the crime of fighting or challenging
another person to fight, defendant‟s appellate counsel fails to
heed our admonitions in Sanghera. For instance, counsel argues
that “there was no evidence to support the premise that
[defendant] drove by [the victim]‟s house as part of an
orchestrated plan to engage in a physical confrontation with
Sure[ñ]os” and “[i]t appears rather that the Norte[ñ]os spotted
[the victim] and his companions outside his house and then, on
the spur-of-the moment, they walked to the house when drunk and
intending to confront [the victim]‟s Sure[ñ]o stepsons.” These
arguments, however, do not account for all of the evidence that
was presented and do not view that evidence in the light most
favorable to the People, as we must do. When we view all of the

-- 16 of 44 --

17
evidence, consistent with the standard of review, the picture
that emerges is far different than the one appellate counsel
describes.
Viewed in the light most favorable to the jury‟s verdict,
the evidence was sufficient to establish the following facts,
which, when considered in their totality, reasonably support
defendant‟s conviction:
As previously noted, Guerrero‟s house was known in the
Flats as being associated with the Sureños. Celica‟s son
Federico, who was a validated Sureño, testified that he and his
younger brother, Roberto, would sometimes wear blue clothing
around the house, but another witness testified “[t]hey wore
blue a lot” at Guerrero‟s house and yet another testified “they
were always out in the front yard with blue stuff on” and it was
“the only blue house in the neighborhood.”
Before the shooting, defendant was far from a stranger to
Guerrero and his “blue house.” Celica had seen defendant
arguing with her husband four times when her husband was at
home. The arguments occurred because defendant and others he
was with would “go by and burn tires and drive . . . on the
front yard,” and Guerrero would tell them not to do that.
The evidence showed that Noe lived further down (to the
west) on Lindley from Guerrero and Celica, at the corner of
Lindley and Edgewater -- across Lindley from Johnson Park. The
evidence also showed that defendant and Noe were friends and
that defendant would hang out in front of Noe‟s house. Also,

-- 17 of 44 --

18
there was a speed bump on Lindley just to the west beyond
Guerrero‟s driveway, i.e., on the way to Noe‟s.
In testifying about the arguments between her husband and
defendant, Celica testified that when she “would go to the park
[she] would see [defendant] with a lot of persons there and [at]
another house that is on that side at the corner.” She then
testified that her husband and defendant “would argue because
[defendant] would go by and burn tires and drive on the yard on
the front yard. They would not make a stop, all the people
[who] went to that house including him.” (Italics added.)
From this testimony, the jury reasonably could have found
that defendant -- who drove down Lindley “[a]lmost every day” --
made it a practice of speeding by Guerrero‟s house and driving
on Guerrero‟s yard -- perhaps to drive around the speed bump --
on his way to Noe‟s house. Guerrero objected to this practice.
As Celica testified, “[t]here were many children around,” and it
was Guerrero‟s objection -- “tell[ing] them not to do that” --
that led to the arguments between defendant and Guerrero.
Beyond these general incidents, there was a specific
incident between defendant and Guerrero about a month before the
shooting. Celica was in her bedroom when her brother-in-law
(who was visiting) came running in and said, “„Celica, run.
They are going to kill your children.‟” Celica ran out into the
yard, where she saw defendant, who was at the front of a large
group of people, hit one of her sons‟ friends in the face,
knocking him to the ground. Celica got Federico and Roberto
into the house, while Guerrero told defendant and his companions

-- 18 of 44 --

19
to leave and that he was going to call the police. Guerrero
then took out his cell phone and called the police. Defendant
stood and cursed at Guerrero, but then left with the group.
Sometime during this incident, defendant was heard to say that
he or they “owned the streets.”
From the evidence, then, it was clear that by Memorial Day
2008 there was a history of conflict between defendant and the
shooting victim.
On the morning of Memorial Day, just before noon, Miguel
Balderas saw defendant hanging out in front of Noe‟s house with
Noe, Pepe, Juan Carlos, Vargas, and Jaime. There was mention of
a barbecue later that day at Pepe‟s house. Most of the group,
except for Noe and defendant, left in the Chevelle. Balderas
then gave defendant a ride home to a house on Arcade.
Later, in the evening, defendant was present at a barbecue
at Jaime‟s house with Jaime, Hugo, Sergio, Pepe, Juan Carlos,
and Vargas. They all decided to go to the Flats and left in at
least two vehicles, headed to Noe‟s house.
Cell phone records showed that defendant‟s cell phone
connected with Noe‟s cell phone for nearly a minute about an
hour before the shooting. Within a span of four minutes just
before 7:00 p.m., four connected calls were made from Noe‟s cell
phone to Hugo‟s phone. Within 20 minutes after the shooting,
four connected calls were made from defendant‟s cell phone to
Noe‟s phone.
As detailed previously, the evidence also showed that
around 7:00 p.m. defendant drove past Guerrero‟s house with some

-- 19 of 44 --

20
of the Norteño gang members in his car. One of them -- probably
Jaime, who was wearing a red bandana on his face -- was leaning
out the window flashing a Norteño gang sign. The car sped down
Lindley, past the intersection with Edgewater, and out of sight.
Moments later, however, the occupants of defendant‟s car were
seen coming from Edgewater and turning up Lindley toward
Guerrero‟s house, pulling up their pants and cinching their
belts as if in preparation for a fight. They walked fast, with
determination, and upon arrival at Guerrero‟s house, Jaime
immediately called out for “the fucking Scraps,” which referred
to Celica‟s sons, one of whom was a validated Sureño. After
Jaime threatened Guerrero with a gun, the fight ensued that led
to Guerrero being shot to death by one of the Norteño gang
members.
When interviewed by police after the shooting, defendant
admitted picking up the bottle but claimed it was because he was
“recycling.” He claimed the Norteños were “not some people that
I be around.” Later, however, he claimed they “were drinking a
little bit earlier.” He then said, “That was it. I came back,
I fucking parked.” But then he immediately changed his story,
saying, “I wasn‟t even driving. . . . [¶] . . . [¶] I wasn‟t
even driving my car that day.” He later asserted he “was in the
back seat of a car” and “[w]e came back. I fucking got out to
go take a piss. And I don‟t know, man. I just fucking -- I
walked over to the fucking tree by Nicole‟s house, I stood
there, I pissed, shit, and I turn around, motherfucker was gone.
You know what I‟m saying?” When the police asked who was gone,

-- 20 of 44 --

21
defendant responded, “Motherfuckers was gone, man” and “Psh,
people.” Later in the interview, defendant changed his story
again, saying, “I went and got beer, and fucking I came back.
And that was, uh, fucking that.”
Based on all of the foregoing facts, the jury could have
drawn the reasonable inference that sometime on Memorial Day,
the idea arose for the Norteños to go to Guerrero‟s house and
confront the Sureños they knew (or believed) lived there, with
whom defendant had previously had a number of arguments.
Defendant helped carry out this plan by driving some of the
Norteños by the house with Jaime leaning out the window with a
red bandana on his face, flashing a gang sign as a provocation
to the people at Guerrero‟s house. Defendant then dropped the
Norteños in his car off at or near Noe‟s house, but did not
accompany them to the confrontation. He did, however, make
several cell phone calls to Noe shortly after the shooting, and
he soon went to the place on Arcade where the fleeing Norteños
had left a beer bottle when their car struck a tree trunk,
picking up the bottle so the police could not get fingerprints.
Based on the evidence, the jury could have reasonably found
that when he drove the Norteños by Guerrero‟s house and dropped
them off nearby, defendant knew they intended to pick a fight
with Guerrero or with other persons at the house and he intended
to aid, promote, or encourage the commission of that offense by
his actions. Accordingly, the evidence was sufficient to
convict defendant of the murder of Guerrero under the natural
and probable consequences doctrine because a reasonable person

-- 21 of 44 --

22
in defendant‟s position would have or should have known that
murder was a reasonably foreseeable consequence of the
confrontation he aided and abetted.
Defendant contends “it is not known why the Norte[ñ]os
decided to go to Noe Ortiz‟s house on that Memorial Day” or
“whether the Norte[ñ]os had decided to go to Guerrero‟s house
when they left [Jaime‟s].” Defendant further contends “[i]t is
pure speculation that a plan was hatched at [Jaime‟s].”
Regardless of the exact time when they formed the plan, that
there was a plan is reasonably inferable from all of the
evidence. As we have explained, the evidence supports the
conclusion that the Norteño gang members proceeded directly and
with determination toward Guerrero‟s house the moment defendant
dropped them off near Noe‟s after having driven them by
Guerrero‟s house with Jaime issuing a gang challenge as they
passed. This conduct is far more consistent with a planned
confrontation than with a “spur-of-the[-]moment” decision, as
defendant suggests.
Defendant contends “[t]here was no evidence [he] acted in
any way to encourage the Norte[ñ]os to walk to Guerrero‟s
house.” Again, we disagree. He drove some of the Norteños past
the house and dropped them off nearby, from where they
immediately proceeded to the confrontation that resulted in
Guerrero‟s death. The jury could infer from this -- and the
other evidence of defendant‟s connections with the Norteños and
his history with Guerrero -- that defendant knew of the
confrontation that was to come and intended to aid, promote, or

-- 22 of 44 --

23
encourage that confrontation by acting as their “transporter” --
driving the Norteños past the house to scout the scene and
initiate the challenge, then dropping them off nearby so they
could make their way to the house.
Defendant argues that “[h]ad [he] been interested in [the
Norteños‟] venture, he would have” “walk[ed] down the block with
[them].” That is an argument for a jury, not an appellate
court. There is no way we can say, as a matter of law, that the
only reasonable inference to be drawn from defendant‟s failure
to join his Norteño friends in the actual confrontation is that
he never intended to aid, promote, or encourage that
confrontation. That was for the jury to decide, and we cannot
say the jury acted without the benefit of substantial evidence
in deciding that defendant intended to aid, promote, or
encourage the confrontation even though he did not attend it.
We need not detail the remainder of defendant‟s arguments,
which are all in the same vein. Suffice it to say that in
making his arguments defendant refuses to consider all of the
evidence against him, taken as a whole and viewed in the light
most favorable to the jury’s verdict. We, however, have done
so, and for the reasons set forth above we conclude that the
evidence was sufficient to support defendant‟s conviction.
II
Jury Instructions
Defendant contends the trial court‟s instructions were
erroneous because they “made it appear that if the perpetrator
shot Guerrero with deliberation and premeditation, [defendant]

-- 23 of 44 --

24
was guilty of first degree murder too.” Stated another way,
defendant contends the instructions “failed to convey that [he]
could be found guilty of second degree murder, though the killer
was guilty of first degree murder.”
The People respond that there was no error “because under
the natural and probable consequence theory of liability, the
aider/abettor cannot be guilty of a lesser crime than that of
the perpetrator.” Adhering to our decision nearly 20 years ago
in People v. Woods (1992) 8 Cal.App.4th 1570, we reject the
People‟s argument and instead conclude that the jury
instructions here were prejudicially erroneous because they did
not allow the jury to consider whether defendant might have been
guilty of only second degree murder, even if the perpetrator was
guilty of first degree murder.
As relevant to the present issue, the jury instructions
here began by explaining that a person may be guilty of a crime
either because he was the perpetrator who directly committed it
or because he aided and abetted the perpetrator. The court then
explained the elements of aiding and abetting. The court then
instructed the jury as follows:
“Before you may decide whether the defendant is guilty of
the crime charged of first degree murder or the lesser crime of
second degree murder, you must decide whether he is guilty as an
aider and abettor of fighting or challenging to fight in
violation of Penal Code Section 415.
“To prove that the defendant is guilty of murder as an
aider and abettor, the People must prove that:

-- 24 of 44 --

25
“1. The defendant is guilty as an aider and abettor of
fighting or challenging to fight.
“2. During the commission of fighting or challenging to
fight a coparticipant in that crime committed the crime of
murder.
“And 3. Under all of the circumstances a reasonable person
in the defendant‟s position would have known that the commission
of the murder was a natural and probable consequence of the
commission of the fighting or challenging to fight.
“A coparticipant in a crime is the perpetrator or anyone
who aided and abetted the perpetrator. It does not include the
victim or innocent bystander. A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes.
“[¶] . . . [¶]
“To decide whether crimes of murder and fighting or
challenging to fight were committed, please refer to the
separate instructions that I will give you on those crimes.”
Thereafter, in instructing the jury on murder, the court
gave the following instructions:
“If you decide that the defendant has committed murder as
an aider and abettor, you must decide whether it is murder of
the first or second degree. The perpetrator is guilty of first
degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation.
“[¶] . . . [¶]

-- 25 of 44 --

26
“All other murders are the second degree. The People have
the burden of proving beyond a reasonable doubt that the killing
was first degree murder rather than a lesser crime.”
Under the foregoing instructions, once the jury found
defendant “committed murder as an aider and abettor” because
(among other things) a coparticipant in the offense of fighting
or challenging to fight committed “murder” and a reasonable
person in defendant‟s position would have known the commission
of “the murder” was a natural and probable consequence of the
other offense, the jury had to determine the degree of the
murder defendant had committed. To make that determination, the
jury was instructed to decide only whether “[t]he perpetrator
. . . acted willfully, deliberately, and with premeditation.”
Thus, as defendant contends, “[t]he instructions le[ft] the
distinct impression that if murder was a natural and probable
consequence of [the offense defendant aided and abetted], and
the perpetrator committed first degree murder, then [defendant]
was also automatically guilty of first degree murder.”
Such instructions are contrary to our decision in Woods.
Like this case, Woods involved a murder charge based on aiding
and abetting liability and the natural and probable consequences
doctrine. (See People v. Woods, supra, 8 Cal.App.4th. at
p. 1579.) When the jury asked the trial court whether a
defendant could be found guilty of aiding and abetting second
degree murder if the perpetrator of the murder was guilty of
first degree murder, the trial court answered, “No.” (Ibid.)

-- 26 of 44 --

27
On review, in a majority opinion written by Justice
Scotland (over Justice Sparks‟ dissent), this court agreed with
the defendant that the trial court had misinstructed the jury.
(People v. Woods, supra, 8 Cal.App.4th at p. 1580.) The court
first discussed the statutory basis for aiding and abetting
liability: Penal Code section 31, which declares that “[a]ll
persons concerned in the commission of a crime,” including an
aider and abettor, “are principals in any crime so committed.”
(Woods, at pp. 1581-1583.) The court then discussed the natural
and probable consequences doctrine, concluding that “in
specifying an aider and abettor is liable for „any crime so
committed‟ by the perpetrator, the Legislature intended--
consistent with common law--that the aider and abettor is guilty
not only of the criminal act originally contemplated and abetted
but also of any other crime by the perpetrator which is a
reasonably foreseeable consequence of the offense originally
contemplated by the aider and abettor.” (Id. at p. 1584.) The
court then explained that “where „any crime so committed‟ by the
perpetrator is determined to be first degree murder, it is
murder in the first degree for which section 31 assigns
responsibility to an aider and abettor provided said crime is a
reasonably foreseeable consequence of the criminal act
originally contemplated by the perpetrator and the aider and
abettor.” (Ibid.) According to the court, “the continuing
viability of the common law rule of aider and abettor liability
for reasonably foreseeable consequences of the criminal act
originally contemplated compels the conclusion that, in enacting

-- 27 of 44 --

28
section 31, the Legislature intended that an aider and abettor
may be found guilty of a lesser crime or lesser degree of crime
than the ultimate offense the perpetrator is found to have
committed.” (Id. at pp. 1585-1586.) The court continued as
follows: “While the perpetrator is liable for all of his or her
criminal acts, the aider and abettor is liable vicariously only
for those crimes committed by the perpetrator which were
reasonably foreseeable under the circumstances. Accordingly, an
aider and abettor may be found guilty of crimes committed by the
perpetrator which are less serious than the gravest offense the
perpetrator commits, i.e., the aider and abettor and the
perpetrator may have differing degrees of guilt based on the
same conduct depending on which of the perpetrator’s criminal
acts were reasonably foreseeable under the circumstances and
which were not.” (Id. at pp. 1586-1587.) The court explained
that “[a]lthough necessarily included offenses need not be
charged, the perpetrator nevertheless committed them as he or
she committed the greater criminal offense,” and “[t]he fact the
perpetrator cannot be found guilty of both a greater and a
necessarily included offense [citations] should not preclude an
aider and abettor from being found guilty of an uncharged,
necessarily included offense when the lesser, but not the
greater, offense is a reasonably foreseeable consequence of the
crime originally aided and abetted.” (Id. at pp. 1587-1588.)
The court concluded, “Therefore, in determining aider and
abettor liability for crimes of the perpetrator beyond the act
originally contemplated, the jury must be permitted to consider

-- 28 of 44 --

29
uncharged, necessarily included offenses where the facts would
support a determination that the greater crime was not a
reasonably foreseeable consequence but the lesser offense was
such a consequence. Otherwise, . . . the jury would be given an
unwarranted, all-or-nothing choice for aider and abettor
liability.” (Id. at p. 1588.)
More recently, in People v. Hart (2009) 176 Cal.App.4th
662, this court followed Woods in a case much like the one
before us. Hart involved a charge of attempted murder based on
aiding and abetting liability and the natural and probable
consequences doctrine. (See id. at p. 668.) Like the jury
instructions here referred only to “murder,” “[t]he instructions
on natural and probable consequences [in Hart] referred to
„attempted murder‟ without noting that, in order to convict
Rayford of attempted premeditated murder under the natural and
probable consequences doctrine, the jury would have to find that
attempted premeditated murder was a natural and probable
consequence of the attempted robbery.” (Id. at p. 665.) The
court concluded “that the trial court has a duty, sua sponte, to
instruct the jury in a case such as this one that it must
determine whether premeditation and deliberation, as it relates
to attempted murder, was a natural and probable consequence of
the target crime. Having failed to do so here, the trial court

-- 29 of 44 --

30
erred.”5 (Id. at p. 673.) The court further concluded that the
error was reversible “unless it can be shown that the jury
properly resolved the question under the instructions, as
given.” (Ibid.)
Applying Woods and Hart here, there is no question the jury
instructions were deficient because they failed to inform the
jury that it needed to decide whether first degree murder,
rather than just “murder,” was a natural and probable
consequence of the target offense. The absence of such an
instruction means the jury necessarily convicted defendant of
first degree murder simply because that was the degree of murder
the jury found the perpetrator committed, and the jury never
determined whether a reasonable person in defendant‟s position
would have known that premeditated murder (i.e., first degree
murder) was likely to happen (if nothing unusual intervened) as
a consequence of the target offense of fighting or challenging
to fight.
The People contend that for two reasons we should follow
the dissent in Woods rather than following Hart and the Woods
majority. First, they contend, “the murder statute does not
require that the individual personally deliberated and
premeditated.” Instead, Penal Code “[s]ection 189 states only
that the killing must have been „willful, deliberate, and
5 This issue is presently on review in the California Supreme
Court. (See People v. Favor (2010) 190 Cal.App.4th 770, review
granted Mar.16, 2011, S189317.)

-- 30 of 44 --

31
premeditated,‟ not that the killer personally acted willfully
and with deliberation and premeditation.” Second, they contend,
“under the natural and probable consequence theory, the aider‟s
liability is derivative in nature. The aider‟s exposure stems
from reasonably foreseeable crimes found to have been actually
committed. It matters not that lesser crimes were also in the
realm of foreseeability.”
We find neither point persuasive as a reason for deviating
from Hart and the Woods majority. First, the error in the
instructions here was not -- as the People‟s first argument
presumes -- that they did not tell the jury to determine whether
defendant, as well as the perpetrator, acted with deliberation
and premeditation. The error was that the instructions did not
tell the jury to determine whether a reasonable person in
defendant‟s position would have known that a deliberate and
premeditated killing with malice aforethought -- as opposed to
simply a killing with malice aforethought -- was likely to
happen as a consequence of the target offense of fighting or
challenging to fight. Thus, the People‟s first argument is of
no moment.
As for the People‟s second argument, we absolutely agree
that under the natural and probable consequences doctrine, “The
aider‟s exposure stems from reasonably foreseeable crimes found
to have been actually committed.” But this point only serves to
show why the Woods majority was correct. As the Woods majority
explained, a perpetrator who commits a greater offense also
commits, at the same time, any necessarily included lesser

-- 31 of 44 --

32
offense. (People v. Woods, supra, 8 Cal.App.4th at p. 1587.)
Because second degree murder -- a killing with malice
aforethought -- is a necessarily included offense of first
degree murder -- a killing with malice aforethought that was
willful, deliberate, and premeditated -- the jury here
necessarily found that the shooter committed both offenses when
he shot and killed Guerrero. The question left unresolved by
the jury instructions was whether the greater offense of first
degree murder was reasonably foreseeable, or whether only
“murder” -- that is, a killing with malice aforethought -- was
reasonably foreseeable. Because the jury instructions did not
direct the jury to resolve this question, they were erroneous
and require reversal. Before addressing the scope of the
reversal required, however, we turn to defendant‟s remaining
ineffective assistance of counsel arguments.
III
Ineffective Assistance Of Counsel
Defendant asserts his trial attorney was ineffective in two
instances: (1) he did not object to improper testimony from the
prosecution‟s gang expert; and (2) he did not object to
prosecutorial misconduct during closing argument. We conclude
defendant has failed to prove he received ineffective assistance
of counsel.
“Generally, a conviction will not be reversed based on a
claim of ineffective assistance of counsel unless the defendant
establishes both of the following: (1) that counsel‟s
representation fell below an objective standard of

-- 32 of 44 --

33
reasonableness; and (2) that there is a reasonable probability
that, but for counsel‟s unprofessional errors, a determination
more favorable to defendant would have resulted. [Citations.]
If the defendant makes an insufficient showing of either one of
these components, the ineffective assistance claim fails.”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
A
Gang Expert Testimony
Defendant contends his trial attorney was ineffective
because he failed to object to the testimony of the
prosecution‟s gang expert in response to “a so-called
hypothetical that used [defendant]‟s name and summarized the
prosecution‟s evidence.” According to defendant, “[t]his
testimony crossed over the line into impermissible expert
testimony by using improper hypothetical questions to opine as
to [defendant]‟s mindset.”
Near the end of the direct examination of the gang expert,
Sacramento Police Detective John Sample, the prosecutor asked an
extended hypothetical question that incorporated specific
details of the case, including defendant‟s name (“Tony”), the
type of car he drove (“a blue Lumina”), and the name of the
street (“Lindley”). Based on that hypothetical, the prosecutor
asked Detective Sample if he had “an opinion on whether or not
this person Tony did an act for the benefit of or in association
with the Norte[ñ]os?” Detective Sample testified that he had an
opinion and it was “[t]hat Tony did commit an act both again in
benefit of the Norte[ñ]o gang as well as in association with the

-- 33 of 44 --

34
Norte[ñ]o gang.” Detective Sample then offered the reasons for
his opinion. The detective then testified as to his opinion
that “Tony” “had a specific intent to both promote and assist
the Norte[ñ]os.” Defense counsel did not object.
Defendant contends Detective Sample‟s expression of his
opinion that “Tony” acted for the benefit of or in association
with the Norteños and with the specific intent to promote and
assist the Norteños violated recognized limits on gang expert
testimony identified in People v. Killebrew (2003) 103
Cal.App.4th 644.6 In Killebrew, “a . . . police officer who
testified as an expert witness on gangs, [was allowed] to give
an opinion about the intent and knowledge of gang members when
in the presence of guns.” (Id. at p. 650.) Specifically,
“[t]hrough the use of hypothetical questions, [the officer
testified] that each of the individuals in the three cars (1)
knew there was a gun in the Chevrolet and a gun in the Mazda,
and (2) jointly possessed the gun with every other person in all
three cars for their mutual protection. In other words, [the
officer] testified to the subjective knowledge and intent of
each occupant in each vehicle.” (Id. at pp. 650, 658.) Because
the officer‟s “testimony was the only evidence offered by the
People to establish the elements of the crime,” it was “the type
of opinion that did nothing more than inform the jury how [the
6 Another case on which defendant relied in his opening brief
has since been taken for review by the California Supreme Court.
(See People v. Vang (2010) 185 Cal.App.4th 309, review granted
Sept. 15, 2010, S184212.)

-- 34 of 44 --

35
officer] believed the case should be decided,” and thus “[i]t
was an improper opinion on the ultimate issue and should have
been excluded.” (Id. at p. 658.)
In an attempt to bring this case closer to Killebrew,
defendant contends that Detective Sample‟s testimony as to his
opinion that “Tony” acted for the benefit of or in association
with the Norteños and with the specific intent to promote and
assist the Norteños was, “[i]n effect, . . . testimony that
[defendant] aided and abetted the crime, for [defendant] could
not be acting in association with them and to benefit them and
to promote the crime without aiding and abetting the crime.”
Thus, in defendant‟s view, “Detective Sample expressed his
opinion as to how the jury should decide the case,” which is
impermissible.
“Expert opinions which invade the province of the jury are
not excluded because they embrace an ultimate issue, but because
they are not helpful (or perhaps too helpful). „[T]he rationale
for admitting opinion testimony is that it will assist the jury
in reaching a conclusion called for by the case. “Where the
jury is just as competent as the expert to consider and weigh
the evidence and draw the necessary conclusions, then the need
for expert testimony evaporates.” [Citation.]‟ [Citations.]
In other words, when an expert‟s opinion amounts to nothing more
than an expression of his or her belief on how a case should be
decided, it does not aid the jurors, it supplants them.”
(Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.)

-- 35 of 44 --

36
Keeping in mind that the question before us is not whether
Detective Sample‟s testimony that “Tony” acted for the benefit
of or in association with the Norteños and with the specific
intent to promote and assist the Norteños should have been
excluded, but whether defense counsel‟s failure to object to
that testimony fell below an objective standard of
reasonableness and whether it is reasonably probable the verdict
would have been different if defense counsel had objected, we
conclude defendant has failed to make the requisite showing.
“Failure to object rarely constitutes constitutionally
ineffective legal representation . . . .” (People v. Boyette
(2002) 29 Cal.4th 381, 424.) Moreover, in this specific
context, even Killebrew held that “[a] bright line cannot be
drawn to determine when opinions that encompass the ultimate
fact in the case are or are not admissible” and “[t]he issue has
long been a subject of debate.” (People v. Killebrew, supra,
103 Cal.App.4th at pp. 651-652.) “„[T]he true rule is that
admissibility depends on the nature of the issue and the
circumstances of the case, there being a large element of
judicial discretion involved.‟” (Id. at p. 652, quoting People
v. Wilson (1944) 25 Cal.2d 341, 349.) Under the circumstances
here, defendant cannot show that had his trial counsel objected
to Detective Sample‟s opinion testimony the trial court would
have excluded it. (See People v. Roberts (2010) 184 Cal.App.4th
1149, 1194.) Furthermore, we are not persuaded that had the
evidence been excluded it is reasonably probable defendant would
have received a better result. Defendant himself admits “[t]hat

-- 36 of 44 --

37
the incident was gang-related was overwhelmingly proven by other
evidence.” Nor are we inclined to believe that Detective
Sample‟s testimony that “Tony” acted for the benefit of or in
association with the Norteños and with the specific intent to
promote and assist the Norteños was, as defendant suggests, the
evidence that tipped the scale on the jury‟s determination “of
whether [defendant] had aided and abetted the Norte[ñ]os in
their crime.” Accordingly, we reject defendant‟s assertion of
ineffective assistance based on defense counsel‟s failure to
object to that evidence.
B
Closing Argument
Defendant contends his trial counsel was ineffective
because he failed to object to prosecutorial misconduct in
closing argument. Specifically, he complains that “[t]he
prosecutor argued that if [defendant] aided and abetted the
fistfight, he was guilty of murder because the authoritative
body of the courts had said so,” and his trial attorney “failed
to object to this argument until too late.”
In arguing his case to the jury, the prosecutor told the
jury, “There are three things I get to argue in every case. I
get to argue the law which is kind of what we‟ve been talking
about. I get to argue about the evidence, and I get to argue
common sense.” After briefly addressing common sense and the
evidence (specifically, some of Detective Sample‟s testimony),
the prosecutor finished with “the law,” arguing as follows:
“Some time ago there was an old California case called People

-- 37 of 44 --

38
versus Butts.[7] And this case was back in 1965, and this case
said that murder is never a natural probable consequence of a
fistfight. You just can‟t have it. So that was the court back
in 1965. [¶] Well, the Court‟s have changed with the times.
They‟ve kind of caught up with society. And 34 years later in
1999, there was a case call[ed] Montez.[8] I am going to quote a
couple of sentences.” At that point, defense counsel
interrupted, and a unreported discussion occurred. After that
discussion, the prosecutor resumed his argument as follows:
“So, we got this court back in 1965, that says a fistfight is
never a natural and probable consequence of murder. What I am
going to tell you now is the courts have changed their stance,
and the courts have totally done away with that line of thinking
because they have caught up with society, and have recognized
that murder is a natural and probable consequence of a
fistfight. And that‟s common sense. Common sense tells you
that. The evidence tells you that based on the expert who is
uncontroverted and the law tells you that. [¶] So whether the
plan here was just to go fight some rivals, you know the outcome
was much different. It was much different, but it was not
unexpected. Murder was foreseeable. You know it. Detective
Sample knows it and the courts know it.”
7 People v. Butts (1965) 236 Cal.App.2d 817.
8 People v. Montes (1999) 74 Cal.App.4th 1050.

-- 38 of 44 --

39
After the prosecutor finished his initial argument, outside
the presence of the jury the trial court noted that defense
counsel had “asked that the District Attorney be prohibited from
reading an excerpt from this case and I sustained that
objection” because “the passage selected had a factual character
to it that was inappropriate.”9 Defense counsel then added the
following: “One brief comment because I didn‟t get to
articulate it. It wasn‟t just the reading of the passage. It
was some of the argument in which he essentially said the
[courts] have found that murder is [the] natural [and] probable
consequence of a fistfight that is the province of that jury. I
think it improper. It is improper to tell this jury that has
been decided, that was a suggestion.” The court responded that
“at sidebar that argument was not articulated or objection was
not articulated. The one that was the objection with regard to
the reading. I sustained that objection. The District Attorney
complied then with my order, request not to -- not to read it.
[¶] And I didn‟t address this other issue because it was not
raised at that time and it is not raised now in the sense of
9 It is most likely the prosecutor wanted to read the
following passage: “Butts is also more than three decades old,
a remnant of a different social era, when street fighters
commonly relied on fists alone to settle disputes.
Unfortunately, as this case illustrates, the nature of modern
gang warfare is quite different. When rival gangs clash today,
verbal taunting can quickly give way to physical violence and
gunfire. No one immersed in the gang culture is unaware of
these realities, and we see no reason the courts should turn a
blind eye to them.” (People v. Montes, supra, 74 Cal.App.4th at
p. 1056.)

-- 39 of 44 --

40
asking for action.” When defense counsel responded, “True,” the
court closed with, “So I treat it as an observation.”
On appeal, defendant contends his attorney was ineffective
in failing to make a timely objection that encompassed not only
the prosecutor‟s intended reading from the Montes decision but
also the prosecutor‟s representation to the jury that “the
courts . . . have recognized that murder is a natural and
probable consequence of a fistfight.” In defendant‟s view, the
prosecutor misstated the law by “telling the jury that as a
matter of law, murder is a natural and probable consequence of a
fistfight in all cases, when the issue is a fact-specific
determination to be made by the jury based on the individual
facts of the case.”
“Although counsel have broad discretion in discussing the
legal and factual merits of a case [citation], it is improper to
misstate the law . . . .” (People v. Bell (1989) 49 Cal.3d 502,
538.) To the extent the prosecutor could be understood to argue
that, following Montes, the courts have recognized that murder
is always a natural and probable consequence of a fistfight,
that was an improper misstatement of the law. As we have
previously noted, whether one offense is a natural and probable
consequence of another is a “case specific” inquiry that
“depends upon all of the facts and circumstances surrounding the
particular defendant‟s conduct.” (People v. Nguyen, supra, 21
Cal.App.4th at p. 535.)
In light of defense counsel‟s closing argument to the jury,
however, we cannot conclude that his conduct, viewed as a whole,

-- 40 of 44 --

41
fell below an objective standard of reasonableness, nor can we
conclude that it is reasonably probable defendant would have
received a better result if defense counsel had offered a
complete contemporaneous objection to the prosecutor‟s argument.
This is so because, as the People point out, defense counsel
effectively addressed this aspect of the prosecutor‟s argument
in his own closing. Specifically, defense counsel argued, “Yes,
disturbing the peace can result in shooting. No, it is not a
natural likely and probable consequence.” He then turned
directly to the prosecutor‟s previous assertions based on
Montes:
“I mean, in his argument, unless I misunderstood him, I
thought [the prosecutor] was trying to say that, hey, it has
been found that shootings are [a] likely consequence of
disturbing the peace.
“Okay. Well, there is only one person in this courtroom
who is going to give you the law, and it isn‟t him, and it isn‟t
me. It is Judge Connelly. And he‟s not going to tell you that.
So you ask yourself this question, if you get to the point and I
don‟t think you can or will, but if you get to the point where
you think that Tony Armstrong was in that car in that Lumina, he
had planned and assisted in this whatever challenge disturbance
of the [peace], if you get to that point, you have to ask
yourself: Is it likely? Is it a natural and probable
consequence that kind of challenge will result in a shooting
death? Not can it. Not might it. Not did it. But is it a
natural and probable result? Would an objective person in that

-- 41 of 44 --

42
setting expect that‟s what will lead, the answer to that
question is no.”
Subsequently, the trial court instructed the jury, “You
must follow the law as I explain it to you even if you disagree
with it. If you believe the attorneys‟ comments on the law
conflict with my instructions, you must follow my instructions.”
Thereafter, the court instructed the jury that “[t]o prove that
the defendant is guilty of murder as an aider and abettor, the
People must prove that: [¶] . . . [¶] . . . [u]nder all of the
circumstances a reasonable person in the defendant‟s position
would have known that the commission of the murder was a natural
and probable consequence of the commission of the fighting or
challenging to fight” and that “[i]n deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence.”
In assessing whether defense counsel‟s conduct was
unreasonable, we refuse to view his failure to offer a complete
contemporaneous objection to the prosecutor‟s argument in
isolation from the thorough response he offered in his own
closing. When defense counsel‟s conduct in closing is viewed as
a whole, it is plain that he performed more than adequately.
Moreover, given the instructions the trial court gave -- which
we presume the jury followed (People v. Boyette, supra, 29
Cal.4th at p. 453) -- we can find no reasonable probability
that, based on what the prosecutor had earlier argued with
respect to the Montes decision, the jury misunderstood the
natural and probable consequences doctrine and believed that

-- 42 of 44 --

43
murder is always to be treated as a natural and probable
consequence of a fistfight. Accordingly, we reject defendant‟s
assertion of ineffective assistance based on the prosecutor‟s
closing argument.
IV
Conclusion
Because we have rejected defendant‟s arguments
(insufficiency of the evidence and ineffective assistance of
counsel) that, if successful, would have required an outright
reversal, our disposition of this appeal is governed by Woods.
As in Woods, because “the court‟s instructional error affected
only the degree of the crime of which [defendant] was
convicted,” we “„may reduce the conviction to [the] lesser
degree [of the offense] and affirm the judgment as modified,
thereby obviating the necessity for a retrial,‟” but at the same
time we must “„give the prosecutor the option of retrying the
greater offense, or accepting [the] reduction to the lesser
offense.‟” (People v. Woods, supra, 8 Cal.App.4th at p. 1596;
see also People v. Hart, supra, 176 Cal.App.4th at pp. 674-675.)
Accordingly, that is what we will do.
DISPOSITION
Defendant‟s conviction of first degree murder is reversed
unless the People accept a reduction of the conviction to second
degree murder. If, after the filing of the remittitur in the
trial court, the People do not bring defendant to retrial on the
premeditation and deliberation element within the time set forth
in Penal Code section 1382, subdivision (a)(2) -- 60 days unless

-- 43 of 44 --

44
waived by the defendant -- the trial court shall proceed as if
the remittitur constituted a modification of the judgment to
reflect a conviction of second degree murder and shall
resentence defendant accordingly.
ROBIE , J.
I concur:
MAURO , J.
I concur in the judgment and in the opinion except as to
Part I in which I concur in the result.
BLEASE , Acting P. J.

-- 44 of 44 --