P. v. Avila

Filed 2/8/11 P. v. Avila 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ALBERTO AVILA et al.,
Defendants and Appellants.
B219748
(Los Angeles County
Super. Ct. No. VA 102440)
APPEALS from judgments of the Superior Court of Los Angeles County.
Dewey L. Falcone, Judge. Reversed in part; affirmed in part.
Jennifer A. Mannix, under appointment by the Court of Appeal, for
Defendant and Appellant Jose Alberto Avila.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant
and Appellant Jonathan Avila.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E.
Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________

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Defendant brothers Jose Avila and Jonathan Avila timely appealed from their
convictions on several counts. Jose was convicted of first degree murder on count 1 and
assault with a deadly weapon on counts 7 (a car) and 8 (a knife). The jury acquitted Jose
on counts 3 and 4 (attempted murder) and count 6 (assault with a deadly weapon, a car).
The jury found gang and personal deadly weapon use allegations were true. The court
found Jose had suffered five prior prison terms. The court sentenced Jose to a total of 36
years to life. Jonathan was convicted of first degree murder on count 1, attempted
murder on counts 3 and 4, and assault with a deadly weapon (a knife) on count 8. The
jury found the attempted murders were not willful, deliberate and premeditated. The jury
found the gang, deadly weapon and great bodily injury allegations were true. The court
sentenced Jonathan to a total of 81 years to life. The convictions all stemmed from a
fight between defendants and six teenagers. Defendants raise several claims mainly of
insufficient evidence and instructional errors. We reverse Jose‟s murder conviction on
count 1 and remand for retrial on the premeditation and deliberation element (or
resentencing as second degree murder); in all other respects, the judgments are affirmed.
FACTUAL BACKGROUND
I. Prosecution Case
A. The Fight
On September 1, 2007, at about 11:30 p.m., Jonathan Sedano, Fernando Gutierrez,
Fernando Hernandez, Miguel Lorenzana, Hernan Partida and Manuel Pasqual were at a
party on Deeble Street in South Gate. The teenagers had graduated from high school in
2007 and played football together. Pasqual had driven the teenagers to the party in his
white Impala.
About 30 minutes to an hour later, the police shut down the party, and the host
asked everyone to leave. The teenagers went to Pasqual‟s car which was parked in front
of the house. Pasqual was sitting in the driver‟s seat, and everyone else was standing

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outside the car. The teenagers were talking about how to get home or what they were
going to do next. Andy Reyes was talking to the teenagers with his back to the street.
Sedano was not drunk; he had one drink at the party. None of the teenagers had a
weapon or was a member of a gang.
Cesar Cabrera, who was at the corner of Deeble and Southern, saw a brown two-
door car drive up; Jose and Jonathan were in the brown car. The car turned onto Deeble,
and Jose, the driver, yelled out, “„Compton Varrio Tortilla Flats, and this is our
neighborhood.‟” Cabrera had seen that gang‟s graffiti in the area. The car stopped in the
middle of the street near the teenagers.
Lorenzana saw Jonathan exit the car. Sedano heard Jonathan ask, “„Where‟s the
party at?‟” Sedano did not say anything in response. Lorenzana did not hear Sedano
respond to Jonathan; before Sedano had a chance to say anything, Jonathan threw a
punch. Hernandez and Partida heard Jonathan ask where the party was at and then hit
Sedano. Hernandez stated he heard Sedano say something to the effect that they did not
know where the party was at. At the preliminary hearing, Hernandez stated he heard
Sedano say, “„Hit up somebody else.‟” Partida heard Sedano respond by saying, “„Who
are you.‟”
Sedano turned around and saw Jonathan swinging his fist at him. Jonathan
punched the left side of Sedano‟s head. Sedano and Partida recognized Jonathan from
school. Sedano swung at Jonathan, and Jonathan “whip[ped] out,” a knife and swung it
at Sedano. The knife was curved and had a five or six inch long blade. Hernandez saw
Jonathan pull a knife and stab Sedano in the stomach. Gutierrez helped Sedano fight
Jonathan. Jonathan walked toward Hernandez carrying the knife. Hernandez backed
away. Jonathan then approached Hernandez‟s friends.
Jose exited his car and said, “„You mess with my homie?‟” Jose claimed his gang
by saying, “„T Flats.‟” Jose lifted his shirt, revealing gang tattoos on his stomach. Jose
also had a tattoo on the back of his head. Jose approached Gutierrez and Hernandez in an

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aggressive manner. Reyes saw Jose swinging at Gutierrez. Hernandez, Gutierrez and
Sedano fought with Jose.
Cabrera saw Jose approach the teenagers, he did not see Jonathan. Cabrera
approached Jose and told Jose that he should leave the teenagers alone as they were
younger than him (Jose).
Hernandez and Cabrera heard Jose say, “„Bring my heat, bring my heat‟”; they
understood Jose to be referring to a gun. Partida heard Jose tell Jonathan to get Jose‟s
gun. Partida believed that at that point, Jonathan and Jose were outnumbered and losing
badly. Reyes heard Jose yell, “„You know what? Get the gun.‟” Jonathan stabbed
Cabrera in the neck.
Jonathan ran to the passenger door of Jose‟s car. Pasqual went to the car, pushed
Jonathan away from it, and closed the door. Pasqual had his hand on the car door.
Jonathan stabbed Pasqual three times in the stomach.
Partida held Jonathan in a “bear hug,” with Jonathan‟s back to Partida‟s chest.
Partida held Jonathan‟s wrist of the hand with the knife. Jonathan, who resisted “a little,”
looked like he was “in a panic mode.” Jonathan said, “„I‟m sorry‟” several times.
Partida told Jonathan, “„You messed up‟” or “„What‟s done is done.‟” Lorenzana saw
Jonathan bleeding and believed Jonathan had cut himself.
Pasqual walked to his Impala and fell. Partida saw Pasqual fall down, let Jonathan
go, and ran toward Pasqual. The teenagers turned their attention to Pasqual.
Jose and Jonathan ran to their car. Sedano and his friends surrounded the car and
punched at Jose and Jonathan while they were seated in the car. Hernandez punched
Jonathan a few times. Jonathan took the knife and stabbed upwards, stabbing Hernandez
through his right arm. Cabrera put his hand on the gear box, which was on the steering
column, so Jose and Jonathan could not leave. Jonathan tried to stab Cabrera‟s hand.
Cabrera let go, and Jose put the car in gear.

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B. After The Fight
Jose drove the car forward at Hernandez, who had to move to avoid being hit.
Jose put the car in reverse, and Sedano and Reyes had to move out of the way so they
would not be hit by the car. Lorenzana pushed Sedano out of the way and had to move so
they would not be hit.
Jose then drove the car forward. Partida pulled up Pasqual, who was on the
ground near the driver‟s door of the Impala. Partida noticed lights and heard an engine
revving and the sound of a tire “peel.” The car moved toward Partida and Pasqual and
would have hit them if Partida had not moved. Jose collided with the Impala, near the
driver‟s side door. Jose drove away.
Reyes heard Cabrera say, “„They stabbed me too.‟” Gutierrez, Sedano and
Hernandez ran after the car. Hernandez was able to get a partial license plate number; he
gave the number to the police later.
Sedano fell down on some grass. Sedano lifted up his shirt and saw he had been
stabbed on the left side, above his waist and below his chest. Sedano was able to stick
about two or three inches of two of his fingers in the wound.
Partida and another man put Pasqual in the Impala to drive him to the hospital;
they stopped near an auto parts store when they saw a police officer. The officer called
for an ambulance.
A man with a hat put Sedano in his car and drove Sedano to the hospital where
Sedano had surgery and stayed for two and a half days. While at the hospital, Sedano
gave the police a description of the assailants. Hernandez went to the hospital and
received shots and stitches. At the time of trial, Cabrera had a scar on his neck from his
wound, one of his nerves was damaged and part of his back was still numb.
Pasqual died as a result of multiple sharp force injuries, which included: (1) a
wound to the lower chest which was 15/16 of an inch in length and 4 and a half inches
deep, penetrating his left lung and heart; (2) a wound to the lower chest which was 1/38
inches in length and 9/16 of an inch deep; (3) a wound to the lower chest which was 3/16

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of an inch long and 1/8 of an inch deep; (4) a defensive wound to the right middle finger
on the palm side of his hand which was 1/4 of an inch in length and 1/16 of an inch deep;
and (5) a defensive wound to the left thumb.
C. The Investigation
Deputy sheriffs collected damaged car parts and blood evidence from the crime
scene. Detective Steve Lankford interviewed some of the witnesses, and based on the
partial license plate number, descriptions of the suspects and the car, Lankford
determined Jose was a possible suspect. On September 2, Lankford went to Jose‟s
address, where a brown Buick Regal was parked. Car parts recovered from the crime
scene matched the Buick. DNA evidence showed that blood stains found in the Buick
matched blood belonging to some of the teenagers.
Jose and Jonathan fled to Mexico where they were detained in December,
deported to the United States, and taken into custody by the Sheriff‟s Department.
D. Gang Evidence
Los Angeles County Sheriff Detective Paul Merino had been part of a gang unit
for nine years. Merino was part of a task force that focused on the Compton Varrio
Tortilla Flats (Tortilla Flats) gang and had testified as an expert about that gang.
At the time of the instant crimes, there were about 500 documented members and
200 non-documented members of Tortilla Flats. Documented members had been
interviewed by officers in the field and included in a gang database. Increasingly, gang
members disavow gang membership and do not get gang tattoos or have shaved heads
because of state laws with enhanced penalties for gang crimes.
Merino noted Tortilla Flats had several cliques and described its territory and
rivals; Merino had identified Tortilla Flats members in South Gate.
Murder, shootings, extortion, narcotics sales, vehicle thefts and firearms
possession were the primary activities of Tortilla Flats and “every gang -- criminal gang.”

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Merino had investigated those types of crimes involving Tortilla Flats; over the past two
years, Merino had investigated three or four murders committed by Tortilla Flats
members. Certified court records showed that two Tortilla Flats members (Erick Yanez
and Jesus Gallardo) had been convicted of robbery and possession of a firearm
respectively.
Merino described how a person would join the gang and what “wannabes” and
“associates” were.
“Respect” was important to Tortilla Flats members; respect was “everything” to a
gang. Tortilla Flats “lives off” respect and puts fear in the neighborhood. With respect
and fear, no one would testify against the gang or turn on them. If a gang member is
disrespected, he would retaliate with violence. A gang would lose respect if its members
did not stand up for themselves. Individuals expect other members to stand up for them.
Given a hypothetical based on the facts of this case, Merino opined that such acts
of violence benefitted or promoted Tortilla Flats. Announcing the name of the gang
while driving to the crime scene and then repeatedly announcing the gang during the fight
would promote the gang by showing they stabbed and killed somebody; it would create
fear in the streets. In Merino‟s opinion, someone who was driving around yelling out
their gang name was looking for a confrontation. Gang members typically announce who
they are or ask, “„Where you from‟” to see if anyone is going to challenge them.
Merino had investigated “a lot” of crimes in which Tortilla Flats members had
committed crimes against non-gang members. Non-gang members were easy targets who
did not have weapons to retaliate. It was common for a Tortilla Flats member to commit
a crime with someone who was not a known gang member. Merino knew Jose was a
member of Tortilla Flats.

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II. Defense Case
A. Jonathan’s Defense
Jonathan testified in his own defense. On the day of the crimes, Jonathan was at a
family party in Whittier. Jonathan had a knife and cell phone. Jonathan found out about
the party on Deeble from a friend named “George.” Jonathan convinced Jose to drive
him to the party on the condition Jonathan would find his own way home.
Jonathan gave Jose directions to the party. When they arrived, Jonathan saw a lot
of people outside a house and noticed a lot of traffic in the street. Jonathan believed the
party was over and exited the car to see if there might be another party. Jonathan
approached Sedano, who was with a group of about six people. Jonathan asked Sedano,
“„Do you know where the next party is at?‟”
Sedano, responded, “„Who the fuck are you?‟” Sedano had a “rude, aggressive
attitude.” Jonathan felt threatened by the way Sedano “came at” him and believed
Sedano, who was bigger, was going to punch him so he punched Sedano. Sedano started
hitting Jonathan. Jonathan saw two people coming toward him. Jonathan felt like six
people were hitting him; he was hit “a lot.” Jonathan “balled up” and started walking
back to the car and said, “„Stop, stop. That‟s it.‟”
Jonathan pulled out his knife, thinking that if he showed it, then the other people
would “back off.” Jonathan showed the knife to Sedano. Initially, Jonathan did not open
the knife. After “they” kept on approaching, Jonathan opened the knife. Jonathan
covered his face with his left arm and swung the knife with his right arm.
Jonathan made his way to the car. Jonathan heard Jose say something about his
gang. Jonathan did not hear Jose say anything about a gun. Jonathan noticed his
attackers back away. Jonathan ran to the car. When Jonathan got to the door, someone
pushed him. Jonathan noticed other people approaching, pulled out the knife and started
swinging it. Someone wrapped up Jonathan from behind. Jonathan saw blood and said,
“„I‟m sorry for what happened.‟”

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Jonathan fled the scene for his own safety and left the country because he was
scared. Jonathan threw the knife away as he left the scene.
Jonathan did not consider himself a gang member at the time; he knew Jose was a
gang member. Jose was 11 years older. Jose put a tattoo on Jonathan‟s back while they
were in Mexico.
Jonathan did not call 9-1-1 on his cell phone; he “must have dropped it” and did
not have it. After Jonathan and Jose left the scene, Jonathan did not call the police to tell
them he “„got jumped by a bunch of guys.‟”
Jonathan usually carried a knife for protection; he used the knife for work.
Jonathan had no reason to carry the knife with him to the family party.
As Jonathan and Jose drove to the party, Jose did not yell out his gang‟s name.
Jonathan was not going to walk away from Sedano, who had given him a
“mouthful of attitude.” Jonathan started the fight; he hit Sedano first. Sedano had
insulted Jonathan.
Jonathan‟s agreement with Jose was that Jose was going to drop him off at the
party if Jonathan had a ride home; Jonathan knew he had a ride home because his friend
George had agreed to take him home. There was no need for Jose to wait around because
Jonathan had a ride home. The front passenger door of the Buick was left open.
Jonathan agreed that whoever left the door open was going to return soon and had exited
the car in a hurry. Jonathan did not intend to go back to the car.
Jonathan knew that stabbing a person in the stomach could kill that person and that
waving a knife during a fight was dangerous.
Jonathan did not realize he had stabbed Sedano; Jonathan stabbed Pasqual by
accident; Jonathan did not remember stabbing Cabrera.
The day after the fight, Jonathan went to a nephew‟s birthday party in Yucaipa.
Jonathan told Maricela, his godmother, who had cleaned his knife wound, that he had
been in a fight. Jonathan said a “gang of football players” had attacked him; he denied
telling Maricela that one of the players had stabbed him.

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B. Jose’s Defense
Jose, who testified in his own defense, was a member of Tortilla Flats and had
been convicted of multiple theft offenses, false imprisonment and possession of a firearm.
At about 6 p.m., on September 1, Jose was at a party at his aunt‟s house in
Whittier. Jose drank about 12 beers at the party and half a bottle of hard liquor. Jose had
been drinking since 9 or 10 in the morning. After Jonathan asked him several times for a
ride to a party, Jose finally agreed to take him.
Jose drove to South Gate. As he approached the party, Jose passed by a group of
people on a corner and yelled his gang name out of his window and “„What‟s the
Compton life like?‟” Jose was drunk and being a “smartass.” Jose did not intend to
intimidate the people on the corner.
As Jose drove up Deeble, he saw a lot of people in the street. Jose parked behind a
white Impala. Jose asked Jonathan if he was going to be all right. Jonathan responded,
“„Yeah, I‟m going to be cool.‟” Jose gave Jonathan $20. Jonathan exited the car. Jose
backed up in order to drive around the Impala.
Jose saw Jonathan fighting “one-on-one” with a guy. A second person joined the
fight against Jonathan. Jose jumped out of his car, took off his shirt, and said, “T Flats”
or “Compton T Flats.” Jose intended to fight with the guys and help out Jonathan.
Jonathan was losing the fight and had “balled up.” Jose took off his shirt and shouted out
his gang name in order to intimidate everyone there and make them back up.
Jose walked to the trunk of his car. There were two or three guys there. One of
them told Jose, “„Hey the problem ain‟t with you.‟” Jose responded, “„What the [are
you] fucking with me? . . . That‟s my brother.‟” The guy said, “„Just get out of here.‟”
Jose and the guy cursed at each other. The guy approached Jose, and they started
fighting. Jose could not remember who struck the first blow. Two other people also
fought with Jose. Someone kicked Jose.
Jose yelled to Jonathan to “get the heat.” Jose yelled loudly because he wanted to
scare everyone. Jose knew how to get himself out of sticky situations and how to

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intimidate the people. Jose said to “get the heat” in order to intimidate the people he was
fighting with and to make them back off. There was no gun in Jose‟s car. The guys
backed off, and Jose ran to his car.
Jose did not see Jonathan with a knife, did not see him stab anybody and did not
know Jonathan had a knife. Jose had never seen Jonathan carry a knife and did not know
that Jonathan carried a knife for protection.
When Jose entered the car, a guy reached in and tried to choke Jose. Jose pushed
him off and tried to start the car. Jose turned the car on and was trying to put it into gear
to drive away. The same guy reached in, and Jose fought with him. The guy let go, and
Jose accelerated and put the car in reverse. Jose struck a light pole. Jose could not see
because the guy‟s arm was blocking his vision.
Jose put the car in drive. Jose saw two guys by the trunk of the Impala. Jose did
not try to hit them; he pulled to the left to avoid hitting them. Jose hit the door of the
Impala. Jose did not see anyone jump out of the way. Jose drove away.
Jose left for Mexico because he found out the police were looking for him. Jose
did not call the police because he did not know what had happened and wanted to get his
facts straight. Jose was confused about what had happened and was still confused about
the whole situation at the time of trial.
Jose was not acting as a representative of Tortilla Flats at any point that evening.
C. Defense Gang Expert
Dr. James Vigil was a professor at the University of California, Irvine who taught
on the subject of gangs and urban youth. Dr. Vigil had developed a theoretical model
explaining why youth join gangs. Gang members do leave gangs. Gangs engage in
intimidation tactics usually directed at rival gangs, but sometimes at the general public.
Vigil was familiar with Tortilla Flats. The primary activities of Tortilla Flats are
drug sales and intimidation of other gangs in order to protect drug trafficking “turf.”
Types of intimidation used included verbal threats, showing of weapons, putting up

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graffiti, and committing murder, attempted murder, robbery, carjacking, possession of a
firearm, theft, and other offenses involving force or violence.
Hypothetically, if a gang member went to a party, got involved in a fight, and
while getting beat up, took off his shirt and displayed gang tattoos on his chest, that gang
member was not necessarily acting in association with his gang. Hypothetically, if a
gang member was acting in self defense, he might throw out his gang sign in an effort to
keep his aggressor away.
III. Rebuttal
Maricela Pelayo was Jonathan‟s godmother; Jose and Jonathan were her nephews.
On September 2, Pelayo was at a lake in Yucaipa for a family picnic; Jonathan and Jose
were there. Later on, at Pelayo‟s house, she noticed a cut on Jonathan‟s arm. Pelayo
cleaned the cut. Jonathan told Pelayo that someone had stabbed him. Jonathan said he
went to a party and football players were there, he got into a fight with them, and one of
the players had a knife and stabbed him. Jonathan never said he stabbed himself.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
Appellants raise several claims of insufficient evidence to support their
convictions. “The standard of review is well established. The appellate court „“must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence -- that is, evidence which is reasonable, credible,
and of solid value -- such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” The focus of the substantial evidence test is on the whole
record of evidence presented to the trier of fact, rather than on “„isolated bits of
evidence.‟”‟ The standard of review is the same in cases in which the People rely
primarily upon circumstantial evidence. „“Although it is the duty of the jury to acquit a

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defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence, it is the jury, not the appellate court
which must be convinced of the defendant‟s guilt beyond a reasonable doubt. „“If the
circumstances reasonably justify the trier of fact‟s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.”‟” „“Circumstantial evidence may be
sufficient to connect a defendant with the crime and to prove his guilt beyond a
reasonable doubt.‟”‟” (Citations & italics omitted.) (People v. Bradford (1997) 15
Cal.4th 1229, 1329.) This standard also applies to gang enhancement findings. (People
v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
B. Premeditation and Deliberation (Jonathan)
Jonathan contends there was insufficient evidence his killing of Pasqual was
premeditated and deliberate. “A verdict of deliberate and premeditated first degree
murder requires more than a showing of intent to kill. „Deliberation‟ refers to careful
weighing of considerations in forming a course of action; „premeditation‟ means thought
over in advance.” (Citation omitted.) (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
“Evidence concerning planning, motive, and manner of killing are pertinent to this
determination, but these factors are not exclusive nor are they invariably determinative.”
(People v. Marks (2003) 31 Cal.4th 197, 230.) Jonathan posits that at most the evidence
showed a spontaneous act as there was no evidence of planning or a preexisting motive.
“The process of premeditation and deliberation does not require any extended
period of time. „The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .‟” (People v. Mayfield (1997) 14 Cal.4th 668,
767.)
Jonathan admitted he started the fight by hitting Sedano. When Sedano, later
joined by others, started hitting Jonathan, Jonathan pulled out his knife and showed it to

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the teenagers in order to get them to “back off.” When that did not work, Jonathan
opened the knife and swung it at the teenagers with whom he was fighting. Jonathan
stabbed Sedano on the left side; the wound was two or three inches deep. After that and
after Jose yelled at Jonathan to get the gun, Jonathan ran back to Jose‟s car. At some
point, Jonathan stabbed Cabrera, who had tried to get Jose to stop fighting, in the neck.
When Jonathan got to the car, Pasqual pushed Jonathan away from the car and closed the
passenger door, which had been left open. When Pasqual had his hand on the car door,
Jonathan stabbed Pasqual three times in the stomach; one of the wounds was four and a
half inches deep and penetrated Pasqual‟s left lung and heart; Pasqual also had defensive
wounds. Pasqual died as a result of his injuries.
In other words, the encounter started out with words between Jonathan and
Sedano. Jonathan escalated the encounter to a physical assault by hitting Sedano. After
Jonathan was being hit by at least two of the teenagers, Jonathan again escalated the
encounter by taking out his knife, at first just displaying it, and then opening it and
“swinging” it and then using it to stab Sedano and Cabrera. Thus, though occurring over
a short period of time, the events showed Jonathan had time to plan to and did use his
knife -- twice before he stabbed Pasqual a number of times indicating the stabbing was
not accidental. Afterwards, Jonathan stabbed Hernandez (and tried to stab Cabrera) when
Hernandez (and others) were hitting the brothers when they finally got into the car.
Even though Jonathan denied hearing his brother call for him to get the gun, a
reasonable juror could infer Jonathan ran to the car in response to Jose‟s request. There
was a reasonable inference that at the time Jonathan stabbed Pasqual, Jonathan‟s motive
was that he was trying to escape. Also, the manner of stabbing, including the nature and
number of Pasqual‟s wounds, show an intent to kill as according to witnesses, Jonathan
thrust the knife rather than just swinging it. (See People v. Pride (1992) 3 Cal.4th 195,
247-248.)
Jonathan claims that the stabbing was a spontaneous reaction to the fight and that
the fact he was running away from the fight shows the stabbing of Pasqual was not

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premeditated. Those claims are simply alternate views of the evidence and do not show
the evidence was insufficient. (See People v. Earp (1999) 20 Cal.4th 826, 887-889 & fn.
10.)
Thus, substantial evidence supports Jonathan‟s conviction for first degree murder.
C. Premeditation and Deliberation (Jose)
As Jose was not the person who stabbed Pasqual, he was convicted of first degree
murder based on two theories -- (1) aiding and abetting and (2) natural and probable
consequences; his conviction can be upheld if substantial evidence supports either theory.
(See People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Jose contends there was insufficient
evidence under either theory to support his conviction.
“„A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime.‟” (People v. Hill
(1998) 17 Cal.4th 800, 851.) “[T]he test is whether the accused in any way, directly or
indirectly, aided the perpetrator by acts or encouraged him by words or gestures.”
(Citations & internal quotation marks omitted.) (People v. Booth (1996) 48 Cal.App.4th
1247, 1255.)
“„It is settled that if a defendant‟s liability for an offense is predicated upon the
theory that he or she aided and abetted the perpetrator, the defendant‟s intent to
encourage or facilitate the actions of the perpetrator “must be formed prior to or during
„commission‟ of that offense.”‟ However, „it is essential to distinguish the act and intent
that constitute “aiding and abetting” the commission of a crime, from conduct that will
incur the lesser liability of an “accessory” to the crime -- defined as conduct by one who,
“after a felony has been committed, . . . aids a principal in such felony . . . .”‟ In this
respect, not only must the subjective intent to encourage or facilitate the actions of the
perpetrator be formed prior to or during the commission of the offense, if there is no

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participation in the planning, the aider and abettor must take affirmative action at the time
the offense is committed. „To be an abettor the accused must have instigated or advised
the commission of the crime or been present for the purpose of assisting in its
commission.‟” (Citations & italics omitted.) (People v. Joiner (2000) 84 Cal.App.4th
946, 967.)
“„Whether defendant aided and abetted the crime is a question of fact, and on
appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of
the judgment.‟ [¶] . . . [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. 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.‟” (Citations omitted.) (People
v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Jose contends there was insufficient evidence he intended to aid and abet a
premeditated murder, arguing there was no evidence he drove his brother to the party to
get into an altercation, intended for someone to be killed, knew of or encouraged his
brother‟s use of the knife, knew any of the men at the party or planned an attack. Jose
further asserts that the prosecutor did not prove he knew his brother possessed, or used, a
knife and that intending to get into a fight is not the same as an intention to kill. In
addition, Jose posits that calling for his brother to get a gun shows he did know about the
knife.
However, Jose‟s intent to aid and abet a premeditated murder is supported by
reasonable inferences. Jose, who was not just present at the scene, admitted he got out of
the car to aid Jonathan in the fight as Jonathan was getting hit by several men. Jose
stated he took his shirt off to show his gang tattoos and called out his gang‟s name in
order to intimidate the teenagers. Even though Jose testified he did not see his brother
with a knife or know his brother usually carried a knife, his credibility was for the jury to
decide. Jonathan stabbed Cabrera, who had been fighting with Jose. When the brothers

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were in the car, Jonathan stabbed Hernandez through the arm and tried to stab Cabrera
when Cabrera put his hand on the gear box, which was on the steering column, calling
into question Jose‟s claim he did not know Jonathan was using a knife. A reasonable
juror could infer that Jose knew his brother usually carried a knife and saw Jonathan
swinging the knife during the fight.
A reasonable juror could infer Jose‟s calling out to Jonathan to get the gun
indicated an intent to kill those fighting the brothers. Jose states no gun was produced,
but his car was not discovered until the next day, it was not searched at the scene. In
addition, several of the teenagers testified that Jose drove the car at them (and they had to
move to avoid being hit) when he left, again demonstrating a possible intent to kill.
Though the brothers did not converse during the fight, Jose was present during the
commission of the stabbing of Pasqual, there was a reasonable inference Jose saw
Jonathan thrusting his knife, Jose aided and abetted Jonathan by distracting some of the
men who were hitting Jonathan. In addition, Jose demonstrated an intent to kill by
calling for Jonathan to get the gun and by driving his car at some of the teenagers when
he and Jonathan fled the scene together in Jose‟s car and subsequently left the country for
Mexico.
Hence, as substantial evidence supports Jose‟s conviction for first degree murder
as an aider and abettor, we need not consider whether there was substantial evidence
under the natural and probable consequence doctrine.1
D. Assault With A Deadly Weapon
Jose was convicted on count 8 of assault with a deadly weapon as an aider and
abettor in Jonathan‟s stabbing of Hernandez. An assault is defined as “the general intent
1 As Jose acknowledges his contention that the natural and probable consequences
doctrine should be repudiated has been rejected by the California Supreme Court (see
People v. Prettyman (1996) 14 Cal.4th 248, 260) and that this court is bound by that
ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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to wilfully commit an act the direct, natural and probable consequences of which if
successfully completed would be the injury to another.” (People v. Rocha (1971) 3
Cal.3d 893, 899.)
Jose asserts there was insufficient evidence to support his conviction on this count
because when Jonathan was fighting with and stabbed Hernandez on the passenger side
of the car, Jose was fighting with another person on the driver‟s side of the car, he was
not involved in his brother‟s fight though he might have been aware of it, and there was
no evidence he said anything to Jonathan or encouraged Jonathan‟s use of the knife or
helped Jonathan in any way.
As with the murder count, there was evidence supporting a reasonable inference
that Jose knew Jonathan had and was using a knife during the fight and that the natural
and probable consequence of using a knife during a fight was that someone would be
injured. As a matter of fact, Jonathan tried to stab Cabrera when Cabrera had his hand on
the gear box on the steering column when Jose was sitting in the driver‟s sear. Jose was
aiding and abetting Jonathan in the fight with the teenagers. At the time Jonathan stabbed
Hernandez, the brothers were trying to flee the scene.
Thus, substantial evidence support Jose‟s conviction for assault with a deadly
weapon.
E. Primary Activities (Jonathan and Jose)
Appellants contend the gang enhancements must be stricken as there was
insufficient evidence of the primary activities of the Tortilla Flats gang.
“To trigger the gang statute‟s sentence-enhancement provision [Pen Code, §[2]
186.22, subd. (b)], the trier of fact must find that one of the alleged criminal street gang‟s
primary activities is the commission of one or more of certain crimes listed in the gang
statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) “[E]vidence of either
2 Unless otherwise noted, all statutory references are to the Penal Code.

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past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to
establish the statutorily required primary activities of the alleged criminal street gang.
Would such evidence alone be sufficient to prove the group‟s primary activities? Not
necessarily. The phrase „primary activities,‟ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group‟s
„chief‟ or „principal‟ occupations. That definition would necessarily exclude the
occasional commission of those crimes by the group‟s members.” (Citation omitted.)
(Id., at p. 323.)
“Sufficient proof of the gang‟s primary activities might consist of evidence that
the group‟s members consistently and repeatedly have committed criminal activity listed
in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.
Gardeley (1996) 14 Cal.4th 605]. There, a police gang expert testified that the gang of
which defendant Gardeley had for nine years been a member was primarily engaged in
the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See
§ 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had
with Gardeley and fellow gang members, and on „his personal investigations of hundreds
of crimes committed by gang members,‟ together with information from colleagues in his
own police department and other law enforcement agencies.” (Emphasis deleted.)
(People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
In particular, citing In re Alexander L. (2007) 149 Cal.App.4th 605, 611-614,
appellants complain the prosecutor did not elicit the specific circumstances of the gang‟s
crimes or when they had occurred from Merino and Merino did not explain how he had
investigated the crimes he described and did not directly state the crimes were the
primary activities of Tortilla Flats.
However, in People v. Martinez (2008) 158 Cal.App.4th 1324, 1330, the court
distinguished Alexander L. Similar to appellants, the defendant had argued the expert‟s
testimony was insufficient because it lacked foundation. (Ibid.) The court reasoned:
“But Alexander L. is different because there the expert never specifically testified about

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the primary activities of the gang. He merely stated „he “kn[e]w” that the gang had been
involved in certain crimes. . . . He did not directly testify that criminal activities
constituted [the gang‟s] primary activities.‟ Here, on the other hand, Schulze had both
training and experience as a gang expert. He specifically testified as to King Kobras‟s
primary activity. His eight years dealing with the gang, including investigations and
personal conversations with members, and reviews of reports suffices to establish the
foundation for his testimony.” (Citation omitted.) (Ibid.)
Merino, the People‟s gang expert, laid a similar foundation for his opinion; he
described his training and experience in a gang unit and his familiarity with Tortilla Flats
in particular. On direct examination, Merino testified that Tortilla Flats engaged in
murder, shootings, extortion, narcotics sales, vehicle thefts and firearms possession.
Merino had investigated those types of crimes involving Tortilla Flats. On cross-
examination, he expressly stated those activities were the primary activities of Tortilla
Flats and “every gang -- criminal gang.”
Merino testified he had been with the gang unit for nine years, received gang
training at the academy, and during the six years he worked in the jails, he had
“interviewed more than 500 inmates, gang members and talked to them about the
different crimes that they commit, how they commit them, learning about the different
gangs.” Merino had talked to gang members on the street and recently been part of a
federal task force focusing on Tortilla Flats; he had investigated gang-related shootings
and narcotic sales and had previously testified in court as an expert about Tortilla Flats.
Over the past two years, Merino had investigated three or four murders committed by
Tortilla Flats members.
Besides Merino‟s testimony and the circumstances of the instant case, certified
court records showed that two Tortilla Flats members (Erick Yanez and Jesus Gallardo)
had been convicted of robbery and possession of a firearm respectively.
Moreover, the testimony of Dr. James Vigil, the defense gang expert, corroborates
Merino. Dr. Vigil testified the primary activities of Tortilla Flats were drug sales, an

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enumerated felony (§ 186.22, subd. (e)(4)), and intimidation of other gangs in order to
protect drug trafficking “turf.” Subsequently, Dr. Vigil clarified that the types of
intimidation used included verbal threats, showing of weapons, putting up graffiti, and
committing murder, attempted murder, robbery, carjacking, possession of a firearm, theft,
and other offenses involving force or violence. The jury could reasonably infer from Dr.
Vigil‟s testimony one of the primary activities of Tortilla Flats was intimidation that the
gang engaged in the types of intimidation Dr. Vigil described, activities most of which
are enumerated felonies in section 186.22, subdivision (e).
Accordingly, there was substantial evidence that the primary activities of Tortilla
Flats were the commission of enumerated crimes.
II. Alleged Instructional Errors
A. Malice
Appellants contend the court erred by giving CALJIC No. 1.22 because it
improperly defined malice. Appellants further contend the prosecutor committed
misconduct during closing argument by defining malice as merely intent to do something
wrong to a person.
1. Background
a. Relevant Instructions
The court instructed the jurors with CALJIC No. 1.22 that: “The words „malice‟
and „maliciously‟ mean a wish to vex, annoy or injure another person, or an intent to do a
wrongful act.”
The court also instructed with CALJIC No. 8.11 on “malice aforethought” that:
“Malice” may be either expressed or implied.
Malice is express when there is manifested an intention unlawfully to
kill a human being.
Malice is implied when:

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1. The killing resulted from an intentional act;
2. The natural consequences of the act are dangerous to human life;
and
3. The act was deliberately performed with knowledge of the danger
to, and with conscious disregard for, human life.
When it is shown that a killing resulted from the intentional doing of
an act with express or implied malice, no other mental state need be shown
to establish the mental state of malice aforethought.
The mental state constituting malice aforethought does not
necessarily require any ill will or hatred of the person killed.
The word “aforethought” does not imply deliberation or the lapse of
considerable time. It only means that the required mental state must precede
rather than follow the act.
The instructions defining murder (CALJIC No. 8.10), deliberate and premeditated
murder (CALJIC No. 8.20) and unpremeditated murder of the second degree (CALJIC
No. 8.30) all state one of the necessary elements was that the killing was done with
“malice aforethought.”
b. Argument
During closing argument, the prosecutor discussed the elements of murder, stating
she had to prove that “the killing was done with malice aforethought.” The prosecutor
then argued: “Malice means to annoy or injure or . . . an intent to do a wrongful act. You
don‟t have to hate the person who you have malice towards. You don‟t have to have any
feelings of ill will or dislike. It‟s just an intent to do something wrong towards that
person. That‟s all it is.” Jonathan‟s attorney objected, stating the prosecutor had
misstated the law. The court overruled the objection, noting the prosecutor‟s comments
were “prefatory” and stated “we‟ll make a correction if she doesn‟t correct it.”
The prosecutor then stated, “It is an intent to do something wrong. [¶]
Aforethought means that the intent to do something wrong has to happen before the
killing and not after.” The prosecutor argued there were two forms of malice, express
and implied, contained in CAJLIC No. 8.11. The prosecutor explained express malice

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meant a person had the specific intent to kill, which could be proved by direct evidence
of a statement indicating an intent to kill or by the circumstances. The prosecutor argued
the types of wounds inflicted on Pasqual showed an intent to kill. The prosecutor argued
Jonathan‟s conduct of intentionally plunging a knife into Pasqual showed implied malice.
2. Instructional Error
It was error for the court to give CALJIC No. 1.22 in a murder case. (See People
v. Shade (1986) 185 Cal.App.3d 711, 715; Use Note to CALJIC No. 1.22 (2008) p. 21.)
In Shade, the court noted the error had been held harmless when the court also had
instructed on the correct definition of malice aforethought embodied in CALJIC No.
8.11. (People v. Shade, supra, at p. 715 [listing cases so holding]; accord People v.
Chavez (1951) 37 Cal.2d 656, 666-667.) Appellants argue that because the concept of
due process has evolved, the error is not corrected by giving the latter instruction as
CALJIC No. 1.22 lessened the prosecution‟s burden of proof on an essential element.
(People v. Flood (1998) 18 Cal.4th 470, 491.) Appellants also posit it was federal
constitutional error to give conflicting instructions on an essential element. (People v.
Lee (1987) 43 Cal.3d 666, 673-674.) We disagree.
“Whether instructions are correct and adequate is determined by consideration of
the entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677.) The jury was
instructed with CALJIC No. 1.01 to consider the instructions as a whole, and we presume
it followed the instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 919 disapproved
on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
In addition, appellants argue the prosecutor committed misconduct when she
argued the improper definition of malice. (People v. Hill, supra, 17 Cal.4th at p. 829.)
“„“It is, of course, the general rule that a defendant cannot complain on appeal of
misconduct by a prosecutor at trial unless in a timely fashion” -- and on the same ground
-- “he made an assignment of misconduct and requested that the jury be admonished to

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disregard the impropriety.”‟” (People v. Berryman (1993) 6 Cal.4th 1048, 1072
disapproved on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Although Jonathan‟s counsel noted the prosecutor had misstated the law by stating
malice was an intent to do something wrong, his counsel did not claim the prosecutor had
committed misconduct nor ask that the jury be admonished to disregard the impropriety.
Moreover, “[w]hen, as here, the point focuses on comments made by the prosecutor
before the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.”
(People v. Berryman, supra, 6 Cal.4th at p. 1072.)
In the instant case, the prosecutor subsequently discussed malice aforethought, and
the jury was instructed with CALJIC No. 8.11 on the correct definition of malice
aforethought and with CALJIC No. 1.00 that if the attorneys said anything about the law
that conflicted with the court‟s instructions, the jurors were to follow the court‟s
instructions.
In reading the instructions as a whole, the jury must have applied CALJIC No.
8.11, specifically defining malice aforethought, to the murder charges. All the murder
instructions (CALJIC Nos. 8.10, 8.20, 8.30) required the killing have been done with
malice aforethought. The instructions defining manslaughter (CALJIC Nos. 8.37, 8.40 &
8.41) stated manslaughter was an unlawful killing “without malice aforethought.”
In addition the evidence indicated Jonathan harbored a conscious disregard for life
as evidenced by his repeatedly stabbing several of the teenagers, was acting rationally
and not acting out of the heat of passion or under an honest, but unreasonable, belief that
it was necessary to defend himself from imminent peril to life or great bodily injury when
he stabbed Pasqual, who was simply trying to prevent Jonathan from escaping. (See
People v. Shade, supra, 185 Cal.App.3d at p. 715.) If the jury believed the stabbing was
an accident or the result of the heat of passion, it would have convicted Jonathan of
manslaughter. Thus, it is not reasonably probable that a more favorable result would

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have been reached in the absence of the error in instructing with or arguing an incorrect
definition of malice. (Id. at p. 716.)
B. CALJIC No. 3.00
CALJIC No. 3.00 provides in part: “Persons who are involved in committing or
attempting to commit a crime are referred to as principals in that crime. Each principal,
regardless of the extent or manner of participation, is equally guilty.” Jose contends
CALJIC No. 3.00 is constitutionally defective because it does not instruct that an aider
and abetter can be guilty of a lesser crime than the perpetrator. (See People v. Breverman
(1998) 19 Cal.4th 142, 155 [defendant has the right to have the jury instructed on every
material issue].)
Jose complains that the instruction did not inform the jury that it had to judge his
actions and mens rea separately from Jonathan‟s and his degree of liability was
dependent on that evaluation. Jose posits the instruction permitted the jury to conclude
that his liability was necessarily determined by Jonathan‟s and that the prosecutor
exploited the error by emphasizing Jonathan and Jose were equally guilty.
In People v. McCoy (2001) 25 Cal.4th 1111, 1122, the court concluded: “[W]hen a
person, with the mental state for an aider and abettor, helps or induces another to kill, that
person‟s guilt is determined by the combined acts of all the participants as well as that
person‟s own mens rea. If that person‟s mens rea is more culpable than another‟s, that
person‟s guilt may be greater even if the other might be deemed the actual perpetrator.”
The court also noted: “Absent some circumstance negating malice one cannot knowingly
and intentionally help another commit an unlawful killing without acting with malice.”
(Id. at p. 1123.)
Subsequently, in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165,
the court reasoned: “Though McCoy concluded that an aider and abettor could be guilty
of a greater offense than the direct perpetrator, its reasoning leads inexorably to the

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further conclusion that an aider and abettor‟s guilt may also be less than the perpetrator‟s,
if the aider and abettor has a less culpable mental state.”
The instruction at issue in Samaniego was CALCRIM No. 400 which provided
that: “[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether
he or she committed it personally or aided and abetted the perpetrator who committed it.”
(People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) The court determined that
CALCRIM No. 400 “while generally correct in all but the most exceptional
circumstances, is misleading here and should have been modified.” (Ibid.)
Although the court went on to discuss the propriety of giving the subject
instruction, it determined the defendant had forfeited the issue, noting: “Generally, „“[a]
party may not complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.”‟” (People v. Samaniego, supra, 172 Cal.App.4th at
p. 1163.) We conclude that Jose has forfeited this issue.
In People v. Nero (2010) 181 Cal.App.4th 504, the court found the trial court
prejudicially misinstructed the jury by giving CALJIC No. 3.00 as it was confusing and
should have been modified because the jury had asked if they could find a defendant, as
an aider and abettor, guilty of a greater or lesser offense than the perpetrator, which the
court opined essentially renewed the objection to the instruction. (Id. at pp. 517, fn. 13,
518, 513-520.) No such jury confusion is apparent in the instant case.
Moreover, CALJIC No. 3.01 explained that an aider and abetter had to know the
unlawful purpose of the perpetrator, intend to encourage or facilitate the commission of
the crime and by act or advice, aids or encourages the commission of the crime. Along
with the need to prove malice aforethought pursuant to CALJIC Nos. 8.10 and 8.11 and
the definition of first degree murder in CALJIC No. 8.20, the instructions essentially
informed the jury that it had to find Jose knew Jonathan intended to commit first degree
murder, intended to aid and abet that crime and did so. The jury was instructed with
CALJIC No. 17.00 to decide each defendant‟s guilt separately. Therefore, it was not

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reasonably likely it convicted Jose just based on Jonathan‟s guilt. (See People v.
Prettyman, supra, 14 Cal.4th at p. 272.)
In Samaniego, in concluding the error was harmless beyond a reasonable doubt
(i.e., the verdict would not have been different) because the jury necessarily resolved the
issue of the aider and abettor‟s mental state under properly given instructions, the court
noted: “It would be virtually impossible for a person to know of another‟s intent to
murder and decide to aid in accomplishing the crime without at least a brief period of
deliberation and premeditation, which is all that is required.” (People v. Samaniego,
supra, 172 Cal.App.4th at pp. 1165-1166.) Thus, any error in CALJIC No. 3.00 as given
was harmless.
C. CALJIC No. 3.02
The court gave CALJIC No. 3.02, which provided in part: “The crimes of murder
and attempted murder were a natural and probable consequence of the commission of the
crimes of assault with a deadly weapon.” Jose contends that instruction was
constitutionally defective because it did not tell the jury it had to determine that first
degree murder, rather than murder, was the natural and probable consequence of assault
with a deadly weapon, i.e., because the instruction did not tell the jury it could convict
him of second degree murder if it had a reasonable doubt first degree murder was the
natural and probable consequence of assault with a deadly weapon. We agree.
“A person who knowingly aids and abets criminal conduct is guilty of not only the
intended crime but also of any other crime the perpetrator actually commits that is a
natural and probable consequence of the intended crime.” (People v. Mendoza (1998) 18
Cal.4th 1114, 1133.) “The factual determination whether a crime committed by the
perpetrator was a reasonably foreseeable consequence of the crime or crimes originally
contemplated is not founded on the aider and abettor‟s subjective view of what might
occur. Rather, liability is based on an „objective analysis of causation‟; i.e., whether a
reasonable person under like circumstances would recognize that the crime was a

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reasonably foreseeable consequence of the act aided and abetted. The finding will
depend on the circumstances surrounding the conduct of both the perpetrator and the
aider and abettor.” (Citation omitted.) (People v. Woods (1992) 8 Cal.App.4th 1570,
1587.)
“The fact the perpetrator cannot be found guilty of both a greater and a necessarily
included offense 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. [¶]
Therefore, in determining aider and abettor liability for crimes of the perpetrator beyond
the act originally contemplated, the jury must be permitted to consider 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.” (Citations omitted.) (People v. Woods, supra, 8 Cal.App.4th at pp.
1587-1588.) The court opined that without an instruction on a lesser offense the jury
“would be provided with an unwarranted all-or-nothing choice with respect to the aider
and abettor” and might be reluctant to acquit the defendant of the greater crime if left
without the alternative of a guilty verdict for the lesser crime. (Id. at p. 1589.)
In Woods, one defendant had been convicted of first degree murder as an aider and
abettor of another defendant who after assaulting several victims had shot a witness.
When the jury asked if the defendant could be found guilty of second degree murder
when the actual perpetrator was determined to be guilty of first degree murder, the trial
court answered, “„No.‟” (People v. Woods, supra, 8 Cal.App.4th at p. 1579.) The
appellate court reversed his conviction on the ground the jury might have found him
guilty to avoid absolving him of any responsibility for the killing, despite evidence from
which it could conclude that only second degree murder was a reasonably foreseeable
consequence of the assaults. (Id. at pp. 1577-1578, 1595.)
In People v. Hart (2009) 176 Cal.App.4th 662, 673-674, the court reversed
defendant Rayford‟s conviction as an aider and abettor for premeditated and deliberate

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attempted murder because: “The instructions did not fully inform the jury that, in order
to find Rayford guilty of attempted premeditated murder as a natural and probable
consequence of attempted robbery, it was necessary to find that attempted premeditated
murder, not just attempted murder, was a natural and probable consequence of the
attempted robbery.” “Error in instructing the jury concerning lesser forms of culpability
is reversible unless it can be shown that the jury properly resolved the question under the
instructions, as given.” (Id. at p. 673.)
In the case at bar, the prosecutor argued both theories of murder, aider and abetter
and natural consequences (but argued only that the jury had to find murder was the
natural and probable consequence). Nothing indicates which theory the jury used to find
Jose guilty of murder.
As in Woods, we conclude the evidence raised a question whether the first degree
murder of Pasqual was a reasonably foreseeable consequence of the fight between
defendants and the teenagers. However, the evidence established beyond question that
the necessarily included offense of second degree murder (i.e., an intentional but
unpremeditated killing or a killing resulting from conduct inherently dangerous to human
life) was a reasonably foreseeable consequence. (People v. Woods, supra, 8 Cal.App.4th
at p. 1578.)
In People v. Concha (2009) 47 Cal.4th 653, 666, the court concluded: “[I]t
appears that the trial court did err when instructing on first degree murder, as opposed to
attempted murder, by not providing an instruction that explained that for a defendant to
be found guilty of first degree murder, he personally has to have acted willfully,
deliberately, and with premeditation when he committed the attempted murder.” In
reaching that conclusion the court noted. “[A] defendant charged with murder or
attempted murder can be held vicariously liable for the actus reus of an accomplice, but,
for murder, a defendant cannot be held vicariously liable for the mens rea of an
accomplice. The same is not true for an attempted murder that is willful, deliberate, and
premeditated. For such an attempted murder, although each defendant must have the

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intent to kill, a defendant may be vicariously liable for the premeditated and deliberate
component of the mens rea of an accomplice. (Id. at p. 665.) Thus, People v. Cummins
(2005) 127 Cal.App.4th 667, 680, cited by respondent, in which the court held the trial
court did not have to instruct on premeditated attempted murder is not apposite.
In Hart, the court compared the error there to the error in Woods, concluding:
“Instead, [the instruction] merely failed to inform the jury that it could convict Rayford of
a lesser crime than Hart‟s crime under the natural and probable consequences doctrine.
The result, however, is the same. The jury was left to its own devices without proper
guidance concerning the law. Under the instructions given, the jury may have found
Rayford guilty of attempted murder using the natural and probable consequences
doctrine, an objective test, and then found the premeditation and deliberation element true
using the only instruction given as to that element, which described a subjective test.
Thus, the instructions on the natural and probable consequence doctrine and attempted
murder were prejudicially deficient.” (People v. Hart, supra, 176 Cal.App.4th at p. 674.)
Accordingly, Jose‟s first degree murder conviction must be reversed and
remanded to the trial court for retrial. As did the jury in Hart, the jury here determined
Jose committed murder under the instructions that were proper to that extent; thus the
only remaining question is whether he is further guilty under the premeditation and
deliberation element. (People v. Hart, supra, 176 Cal.App.4th at p. 674.)
III. Sanitization of Jonathan’s Prior
A. Background
Prior to Jonathan testifying, the parties discussed his prior conviction. The court
noted Jonathan had a 2007 conviction for assault with a deadly weapon and indicated it
was inclined to allow the prosecutor to “indicate that he‟s been convicted of a felony
involving force or violence and stop at that particular point in time.” Jonathan‟s counsel
stated he would prefer the prior conviction be referred to as a “generic felony” without
reference to violence as violence was not relevant to credibility and sanitizing the prior

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by referring to it as a “prior felony conviction” would allow the prosecutor to argue
Jonathan‟s credibility was suspect because he had a prior conviction. The prosecutor
argued that the actual name of the prior crime was “very probative.” The court noted it
was a “352 issue” and ruled either counsel could ask Jonathan if he had “sustained a
conviction of a felony involving force or violence.” Subsequently, the court indicated the
prosecutor could elicit that Jonathan suffered the prior conviction in 2007.
At the end of Jonathan‟s direct examination, his counsel asked, “You had a felony
conviction in 2007 for some type of assault; isn‟t that true?” Jonathan replied, “Yes, I
do.” On cross-examination, the first question the prosecutor asked was “Actually, that
felony conviction from 2007 was a felony involving force or violence, isn‟t that correct?”
Jonathan replied, “Yes, it was.”
During questioning of Jonathan about his confrontation with Sedano, the
prosecutor referred to Jonathan‟s felony conviction for a crime involving force or
violence. During closing, the prosecutor argued the main issue was the credibility of the
prosecution and defense witnesses and one factor in assessing credibility was whether the
witness had a prior felony conviction. The prosecutor noted the instant crimes took place
on September 1, 2007, and Jonathan had a “2007 prior felony conviction involving force
or violence.”
B. No Abuse of Discretion
Jonathan contends the court erred by refusing to sanitize his prior conviction and
allowing the prosecutor to refer to it as a felony involving force or violence. Jonathan
proposes that the similarity to the charged crimes and the temporal proximity created
undue prejudice and caused the jury to view him as a person of evil character.
Sections 788 and 352 of the Evidence Code govern the admissibility of felony
convictions for impeachment. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Evidence Code section 788 permits the prosecution to show a witness has been convicted
of a felony to attack his credibility. Evidence Code section 352 gives the trial court broad

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discretion in assessing whether concerns of undue prejudice, confusion or consumption of
time outweigh the probative value of particular evidence. (People v. Dyer (1988) 45
Cal.3d 26, 73.)
When a discretionary power is statutorily vested in the trial court, its exercise of
that discretion “„must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” (Italics omitted.) (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.)
A court may sanitize a witness‟s prior conviction by allowing the prosecutor to
refer to it only in a general manner. The act of sanitizing the prior prevents specific
information about the prior conviction from prejudicing the jury. Sanitizing allows some
facts of a prior conviction to impeach the witness because to exclude completely a prior
would give the witness a “false aura of veracity.” (People v. Beagle (1972) 6 Cal.3d 441,
453.)
The Supreme Court has established four factors that control the trial court‟s
determination of whether to sanitize a prior: (1) whether the prior conviction reflects
adversely on an individual‟s honesty or veracity; (2) the nearness or remoteness in time
of the prior conviction; (3) whether the prior conviction is for the same or substantially
similar conduct to the charged offense; and (4) what effect admission would have on a
defendant witness‟s decision to testify. (People v. Beagle, supra, 6 Cal.3d at p 453.)
Courts do not need to follow the Beagle factors rigidly. (People v. Mendoza, supra, 78
Cal.App.4th at p. 925.)
Jonathan does not claim his prior conviction did not reflect on his honesty. The
prior was from the same year as the charged crimes and thus was not remote. Jonathan
testified. Thus, the only pertinent possibly favoring sanitization was whether the prior
was for the same or substantially similar conduct to the charged offenses. The court
eliminated the fact the prior was for assault with a deadly weapon. The charged offenses
included murder and attempted murder, more serious crimes than an assault. Jonathan

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posits referring to a felony of force or violence allowed the jury to speculate on those
types of felonies rather than the complete range of felonies. However, Jonathan‟s
counsel established Jonathan‟s prior conviction was for an assault. The prosecutor
argued the prior only in the context of Jonathan‟s credibility. Jonathan has not shown the
court abused its discretion by sanitizing the reference to the prior as a felony involving
force and violence rather than sanitizing it to a generic felony.
DISPOSITION
The finding that Jose premeditated and deliberated with respect to the murder
conviction on count 1 is reversed. If, after the filing of the remittitur in the trial court, the
People do not bring Jose to retrial on the premeditation and deliberation element within
the statutory time limits, the trial court shall proceed as if the remittitur constituted a
modification of the judgment to reflect a conviction of unpremeditated murder and shall
resentence Jose accordingly. (People v. Hart, supra, 176 Cal.App.4th at p. 675.) In all
other respects, the judgment as to each defendant is affirmed.
WOODS, Acting P. J.
We concur:
ZELON, J. JACKSON, J.

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