P. v. Hernandez

P. v. Hernandez

Filed 8/28/08 P. v. Hernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. RICARDO HERNANDEZ et al., Defendants and Appellants.

B199067 (Los Angeles County Super. Ct. No. BA285268)

APPEALS from judgments of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Hernandez.

Lawrence R. Young & Assoc. and Lawrence R. Young for Defendant and Appellant Manuel Regalado Aguirre.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendants Ricardo Hernandez (Hernandez) and Manuel Regalado Aguirre (Aguirre) appeal from judgments of conviction entered after a jury trial. Defendants were convicted of first degree murder (Pen. Code,  187, subd. (a), 189) committed for the benefit of a criminal street gang (id.,  186.22, subd. (b)(1)(C)). The jury also found true the allegations that a principal, specifically Aguirre, personally and intentionally discharged a firearm in the commission of the crime, proximately causing the victims death (id.,  12022.53, subds. (d) & (e)). The trial court sentenced each defendant to state prison for 50 years to life.

On appeal, defendants challenge the sufficiency of the evidence identifying them as the perpetrators of the crime. They raise other challenges to the sufficiency of the evidence to support the convictions and claim prosecutorial misconduct and instructional error. We affirm.

FACTS

A. Prosecution Evidence

1. Events Preceding the Murder

Montecito Park is located at 4545 Homer Street in Los Angeles, adjacent to Highland Park. Members of the Avenues Gang frequented the park and placed gang graffiti there.

On Saturday March 12, 2005, Efren Gutierrez (Gutierrez) went to the park to play basketball. Gutierrez was not a gang member, although he had three tattoos on his hand and arms. He was driving a Ford SUV. He was wearing a Dodgers baseball cap with an LA logo.

Jose Arrieta (Arrieta), a park employee, was at the park that day. At about 12:00 p.m., Arrieta spoke with Hernandez near the gym. Arrieta had known Hernandez as Richard for about 10 years. Hernandez was wearing a blue baseball cap and was accompanied by a 12- to 16-year-old boy who was about five feet, three inches tall, thin, with a dark complexion and curly hair on the top of his head but short hair on the sides. Both Hernandez and the boy had bicycles: Hernandez had a BMX bicycle and the boy had a small motorized bicycle with high handlebars.

During their conversation, Arrieta and Hernandez talked about their tattoos. Hernandez warned Arrieta to watch out for individuals who could misinterpret his tattoos, explaining, were just looking to cap fools that are all tatted down.[1]

While they were talking, Arrieta noticed Hernandez glaring at a man named Andres. Andres was wearing a black LA hat and talking to a man seated in the drivers seat of a dark SUV near the park entrance at Homer Street. Hernandez asked Arrieta who the men in the parking lot were and said that Andres appeared to be dogging him. After they finished their conversation, Arrieta left the park.

Arrieta had also known Aguirre for about 10 years. In the past, Arrieta had seen Aguirre with the same boy who was with Hernandez in the park.

Luis Sanchez (Sanchez), another park employee, had worked as a basketball referee and played basketball in the gym for several hours that day. At one point, he saw Hernandez and Aguirre in the gym for about 10 to 15 minutes. Hernandez then went into the office in the gym. Later that afternoon, Sanchez saw Hernandez with a bicycle outside the gym.

Richard Enriquez (Enriquez), the parks facility director, arrived at the park at about 2:30 p.m. He was in the gym office shortly before 3:00 p.m. when a young man entered the office and asked if the parks former director was there. Enriquez said he was not and offered to let the former director know the young man had asked for him. The young man then identified himself as Richie Boy.[2] As Richie Boy was leaving the office, he told Enriquez not to worry about the bald guys outside; they were okay and Richie Boy had them under control.

2. The MurderWitness Sanchez

Sanchez left the park to go home but returned when he realized he had left his shoes at the park. As he arrived at the entrance to the parks parking lot on Mosher Street,[3]he saw two men near a Ford SUV. One of the men appeared to be about 23 or 24 years old, was about five feet, nine inches tall, very thin, with a light complexion. The other man appeared to be 18 to 20 years old, was about five feet, seven inches tall, husky, with a dark complexion. The younger man wore a button-up shirt and blue Levis, and he had a mountain bike.

The SUV was parked in a space close to the Homer Street entrance to the park, about 50 to 60 feet away from Sanchez. Sanchez saw the younger man standing by the drivers side window, talking to the driver, Gutierrez. While they were talking, the older man entered the SUV through the passenger door and began hitting Gutierrez. The man then got out of the SUV and ran to the drivers side. Sanchez saw the SUV begin to back up, and the younger man fired a shot into the SUV from a black gun. The SUV then began to move forward, and the younger man fired a second shot into the SUV. Gutierrez slumped over. His foot was still on the gas pedal, and the SUV drove forward about 30 feet before hitting a wall. The wheels continued to spin and the tires began to smoke. The two men then ran in the direction of Homer Street. As they were running, the younger man removed his button-up shirt.[4]

About two hours after the shooting, a car approached Sanchez as he was walking near his house. A passenger asked Sanchez if he had been at the park where the shooting occurred and warned him not to say anything, or something bad would happen to him. Sanchez believed the cars occupants were members of the Avenues Gang. Sanchez was scared by the warning.

On June 8, 2005, Sanchez identified Hernandezs photograph from a photographic lineup as that of the older man, who had entered the SUV and hit Gutierrez. Sanchez originally noted in his written police statement that Hernandezs photograph looks like the most familiar face out of the pictures, he might or might not have been the man that jumped into the car but he does look very familiar. Sanchez later amended his statement to state that he was certain that the photograph of Hernandez was that of the person who had entered the SUV.

Sanchez also identified Aguirre as the shooter from a photographic lineup. Sanchez recognized Aguirre as someone he had seen around the neighborhood in the past.

At trial, Sanchez testified that the photograph he identified as the older man depicted Hernandez. However, Sanchez testified that Hernandez was taller than the older man and had long hair, while the older man had a shaved or bald head. Sanchez also testified that he previously identified Aguirre as the younger man. Sanchez testified that while Aguirre was husky like the younger man, Aguirre had much longer hair and was taller than the younger man, and he had a small moustache, which the younger man did not have. Sanchez additionally testified that neither Hernandez nor Aguirre was involved in the shooting. He claimed that the police pressured him to make the identifications.[5] He added that he was not wearing his prescription glasses at the time of the shooting and was too far away from the participants to see details.

Sanchez denied being scared to testify at trial or being concerned about his safety. He explained that any reluctance to testify was based on the disruption to his routine that coming to court caused and anger at the police and prosecution, who were pressuring him to testify the way they wanted. A previous missed court appearance was due to a doctors appointment. Sanchez also acknowledged that police officers had approached him about relocating him for his safety; he had declined their offer because he had no fear for his safety.

3. Witnesses Carlos and Ivonne F.

Shortly before the shooting, 12-year-old Carlos F. and his 15-year-old sister, Ivonne F., were walking with three other children on Homer Street toward the park. When they were about 30 feet from the Homer Street entrance to the park, Carlos saw two young men stop a tan SUV as it entered the parking lot. Both men had bicycles, but one of the bicycles was on the grass. One of the men spoke to the driver of the SUV, but both men were next to the drivers side of the SUV. Carlos turned around to play with one of the other children. While his back was turned, Carlos heard a gunshot, then heard someone say, Cypress Avenues 43, and then heard a second gunshot.

Carlos turned around after he heard the first gunshot and saw a man standing next to the drivers side of the SUV; the man was holding a black revolver. Carlos had seen the man before in his neighborhood, but he did not know the mans name. The man had a shaved head, had a dark complexion, was chubby, and appeared to be about 17 years old. He was wearing a black T-shirt, black jeans, black shoes, and a cap with LA on it. Carlos saw him fire the second shot.

After the shooting, Carlos saw both men flee toward Homer Street. The shooter left his bicycle on the grass when he fled, but the other man was on his bicycle. As the shooter fled, he bumped into Ivonne. Carlos also saw the SUV move forward after the shooting. It hit a fence and stopped, but its tires continued turning.

When Ivonne heard the gunshots, she hid in some bushes. As she stepped out of the bushes, a man she knew by the name of Manuel bumped into her as he ran by. Manuel appeared to be 18 or 19 years old, was bald with no facial hair, was tall, of normal weight, and had a lighter complexion than Ivonnes. He wore a blue hat with LA on it, a white T-shirt, and dark blue jeans.

Ivonne saw another man riding a bicycle away from the park on Homer Street. That man appeared to be about 17 years old, was thin and was wearing all black clothing. Ivonne did not see his face.

After Ivonne and Carlos went home, Ivonne told Carlos and her mother that she thought the man who bumped into her was her friend Palmira G.s cousin, Manuel. Ivonne had met Manuel at his home about four years earlier, when Palmira G. took her there. Ivonne also had seen Manuel driving around their neighborhood several weeks earlier.

On March 14, 2005, two days after the shooting, Los Angeles Police Detectives Joseph Preciado and Juan Gutierrez interviewed Carlos and Ivonne. The interviews were tape recorded. From a book of photographs, Carlos selected photographs of three people who resembled the shooter. On March 30, 2005, Detective Scott Smith showed Carlos a photographic lineup. Carlos selected Aguirres photograph, in position number five, and wrote no. 5 looks like the guy that had the gun and was wearing the L.A. cap. Carlos stated that Aguirre looked a lot like the shooter.

At trial, Carlos did not identify either Aguirre or Hernandez. However, at the time of trial, Aguirre had a lighter complexion, his hair was grown out, and he appeared heavier. Hernandezs hair also had grown out, and he also appeared heavier.

Carlos stated that he was a little bit afraid while testifying, but it was due to nervousness about testifying in court. No gang members had spoken to him about testifying or threatened him in any way.

Ivonne initially told Detectives Preciado and Gutierrez that she believed the man who had bumped into her was named Manuel. She also said there was a ninety percent possibility the man could also have been the brother of a school classmate, Priscilla J., because his clothing was similar to that worn by Priscillas brother. Ivonne had not thought the man might be Priscillas brother until another friend brought up his name. Ivonne had walked by Priscillas brother two or three weeks before the shooting, but she had not seen him up close.

When shown photographic lineups containing photographs of Priscillas two brothers, Ivonne did not select their photographs. In another photographic lineup, she selected a photograph of a man who had eyebrows similar to those of the man who had bumped into her. Ivonne stated that between Priscillas brother and Manuel, the man who bumped into her looked more like Manuel.

On March 30, 2005, Detective Smith showed Ivonne a photographic lineup containing Aguirres photograph. Ivonne selected Aguirres photograph as that of the man who had bumped into her because it looked like him.

At trial, Ivonne identified Aguirre as Manuel. However, she testified that she did not know whether the man who bumped into her was Manuel or Priscillas brother.

Ivonne denied being afraid to testify at trial. She testified that she had been afraid at the time of the shooting, but only because she thought she might get shot too. However, prior to the preliminary hearing, Ivonne told Detective Smith, I cant go in there, they know who I am, thats his family.[6] Ivonne also told her mother she was afraid to testify because she was afraid of Palmira G.s family.

4. Witness Enriquez

Several minutes after Richie Boy left his office, Enriquez looked out the window and saw a plume of smoke. He went outside to investigate and heard someone screaming that someone had been shot and to call 911. Enriquez saw the smoke was caused by a rotating tire of a vehicle that had crashed into a wall. Gutierrez was pulled from the car, covered with blood.

Shortly before the April 2006 preliminary hearing, Sanchez spoke to Enriquez about the shooting. He said he was reluctant to testify due to the threat made to him after the shooting. He was afraid that if he made incriminating statements, he or his family would be killed.

5. The Investigation

There was a single bullet hole in the drivers door of Gutierrezs SUV. A bullet was recovered from the door, but it was too badly damaged to yield useful information. There were no shell casings found at the scene, suggesting that the shooter may have used a revolver.

An autopsy revealed that Gutierrez died from a single gunshot wound to the back of his head, near the base of his skull. There was no soot or gunpowder around the wound, indicating that the bullet was fired from an indeterminate distance. Bullet fragments recovered from Gutierrezs body could have come from a number of types of guns but were most consistent with a .38 Special, a .357 Magnum, or a nine-millimeter handgun.

Gutierrezs eyeglasses were on the ground within ten feet of a bicycle on the grass. Written on the bicycle was Joes bike; one of Hernandezs brothers was named Joe. A fingerprint found on the bicycle matched Hernandezs left ring finger.

On June 14, 2005, Los Angeles Police Detective Juan Guerra executed a search warrant at three residences located at 232 East Avenue 40. Hernandezs relatives were present at two of the residences, and envelopes addressed to Hernandez were found in one of the residences. Detective Guerra looked for Hernandez at the residences on three separate dates in June, but he did not locate Hernandez. On July 7, 2005, the Maricopa Police Department in Arizona notified the Los Angeles Police Department that Hernandez was in custody there.

Also on June 14, 2005, Detective Smith executed a search warrant at Aguirres residence. In Aguirres bedroom, Detective Smith recovered nine-millimeter, .38 caliber, and .357 caliber live ammunition in a locked tool chest; a gun cleaning kit for a small to medium caliber handgun in the same locked tool chest; a photograph of Aguirre flashing an Avenues Gang hand sign; a photograph of Aguirres brother displaying the gang hand sign, with Avenue 43 written on it; baseball caps; a memorial flier for Omar Gandarilla (Gandarilla), an Avenues Gang member who died on February 15, 2005; and a photograph of Hernandez.

On June 20, 2005, Los Angeles Police Officers Robert Lona and Salvador Loera attempted to stop Aguirre for a traffic violation. After a high speed chase, a collision and a foot pursuit, Aguirre was arrested. Aguirre had a paper with the Avenues Gang hand sign in his possession, as well as a prayer card with Gandarillas name on it.

6. Gang Evidence

Los Angeles Police Officer Robert Morales, who was assigned to the Community Law Enforcement and Recovery Program, a gang enforcement division, testified as an expert on the Avenues Gang. The Avenues Gang was one of the oldest and largest gangs in Los Angeles; it was formed in the 1940s and had over 500 members. The gang was composed of a number of subgroups or cliques, including the 43rds, which was associated with the area around Avenue 43, south of Montecito Park. The Avenues Gang claimed Montecito Park as part of its territory.

The gang had a specific hand sign and symbol. Its primary activities included murder, attempted murder, assault, assaults on police officers, narcotics sales, battery, carjacking, robbery, and witness intimidation. The parties stipulated that the Avenues Gang had engaged in a pattern of criminal gang activity within the meaning of Penal Code section 186.22.

Officer Morales explained that as a general rule, gangs are protective of their territory. Gangs will use violence to defend their territory from rival gangs. Defense of the gangs territory is a means of gaining respect by instilling fear and intimidation in the community. Instilling fear and intimidation in the community also serves to prevent community members from cooperating with the police. A perceived rival gang member in the gangs territory would be questioned as to his identity in order to ensure the controlling gangs own security as well as to establish respect.

A method of gaining status within the gang or proving loyalty to it, particularly for younger gang members, is to put in work, that is, to commit crimes benefitting the gang. Loyalty also may be proved by backing up, protecting fellow gang members or gang territory. Gang members who do not back up their fellow gang members face serious consequences, such as beatings by their fellow gang members.

Officer Morales noted that people commonly did not cooperate with police investigating gang-related crimes for fear of gang retaliation against themselves and their families. Gang members considered such people to be snitches or rats and would use violence against people who testified against a gang member.

It was Officer Morales opinion that Aguirre was a member of the Avenues Gang. This opinion was based on the items found in Aguirres bedroom, including the photograph showing Aguirre flashing the Avenues Gang hand sign; the memorial flier and prayer card for Gandarilla[7]; and the ammunition.

Officer Morales also opined that Hernandez was an Avenues Gang member. His opinion was based on a number of things, including the photograph of Hernandez found in Aguirres bedroom and Officer Morales personal observation of Hernandez at his residence, which was located in Avenues Gang territory. Additionally, Arrietas testimony that Hernandez was in the park looking for men with tattoos indicated that Hernandez was an Avenues Gang member because only a gang member would make such a comment in the area controlled by that gang. Similarly, Hernandezs act of glaring at the man in the LA cap indicated that Hernandez was a gang member protecting his turf by determining whether the man was a rival gang member.

Officer Morales acknowledged that Hernandezs tattoos indicated membership in another gang, Muertos. This did not change the officers opinion as to Hernandezs Avenues Gang membership. He explained that the tattoos only showed Muertos gang membership at some point in appellant Hernandezs life; it was common for gang members to belong to more than one gang during their lives. That Hernandez lived in Avenues Gang territory supported the conclusion that he was a member of that gang. Moreover, a current trend among Avenues Gang members was to forego tattooing due to an injunction against the gang; the absence of gang tattoos would make it more difficult for the police to identify members.

Officer Morales considered a hypothetical question based on facts similar to those in this case: A 28-year-old man drives into the park wearing an LA cap and is approached by two other men; one punches the driver and stands by the other, who shoots once into the exterior panel of the car and shoots a second time, hitting the drivers head. The two men then run together from the park. The words Cypress Avenues 43 are heard at the time of the shooting. Officer Morales opined the hypothetical crime was committed for the benefit of the Avenues Gang for four reasons: First, the park was a known Avenues Gang location. Second, the crimes were consistent with gang activity. Third, the two mens concerted actions would generate fear and intimidation. Fourth, stating Cypress Avenues 43 at the time of the crime informed not just the victim but others within earshot that members of the Avenues Gang committed the crime, which served to instill fear in the community.

Even if the victim was not a rival gang member, the shooting shows that the Avenues Gang protects its territory. The crime assists, furthers, or promotes criminal conduct by gang members by increasing the status of the gang collectively and of the individual members who committed the crime. The gang benefits because the crime instills fear and intimidation into the community and other gang members. Community members who fear the gang are hesitant to cooperate with the police, enhancing the gangs ability to commit other crimes with impunity.

B. Defense Evidence[8]

Michael Mastrocovo (Mastrocovo), a criminalist with the Los Angeles Police Department, was unable to extract any human DNA from the shirt recovered near the park after the shooting. He was able to obtain DNA profiles from the handlebar grips of the bicycle left at the crime scene. The profile of the right handlebar grip most likely contained a mixture of DNA from at least two people. The profile of the left handlebar grip contained a mixture of DNA from at least three people.

Mastrocovo compared the DNA profiles from the handlebar grips to defendants DNA profiles. He opined that Aguirre could be excluded as a donor of DNA on both grips. Hernandez could be excluded as a donor of DNA on the left handlebar grip. However, the exclusion as donors did not mean that defendants did not touch the bicycle, in that a person may or may not leave DNA on an object he touches.

Ajay Singh (Singh), an inactive member of the Muertos 102 Street Gang, met Hernandez in the county jail. According to Singh, the Muertos Gang and the Avenues Gang were rivals. Singh never heard of a Muertos Gang member becoming a member of the Avenues Gang; any member who did so would have to get taken out. Singh also noted that gang tattoos represent membership in the gang and would prevent a member from joining a different gang.

DISCUSSION

A. Sufficiency of the Evidence Identifying Defendants as the Perpetrators of the Crime

When the sufficiency of the evidence is challenged, the question on appeal is whether the conviction is supported by substantial evidence, i.e., evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) In making this determination, we 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.] (Peoplev.Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Smith (2005) 37 Cal.4th 733, 738-739.) We also must examine the entire record, not merely isolated bits of evidence. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

Substantial evidence is that which is reasonable, credible and of solid value. (Peoplev.Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court may not go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed. (Peoplev.Memro (1985) 38 Cal.3d 658, 695.)

Additionally, it is the exclusive province of the trier of fact to determine witness credibility and the truth or falsity of the facts; we are not free to substitute our view of the evidence for that of the trier of fact. (Peoplev.Ochoa (1993) 6 Cal.4th 1199, 1206; Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139.) Reversal is not warranted unless there is no hypothesis under which the trier of fact could have found the evidence consistent with guilt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Defendant Hernandez states his contention regarding the identification evidence as follows: [N]ot a single witness was able to identify [defendant] or Aguirre while under oath at this trial or any other judicial proceeding. The logical question to be asked given that fact ishow may [defendant] be found guilty? The answer should be plain. He may not.

That no witness was able to identify defendants at trial does not preclude a finding that defendants convictions are supported by substantial evidence. As noted in People v. Cuevas, supra, 12 Cal.4th at pages 271-272, the substantial evidence rule applies to an out-of-court identification repudiated at trial. Such identification evidence may be sufficient to sustain a conviction. (Ibid.) It is, in the first instance, the job of the trier of fact to determine whether to give credence to the out-of-court identification or the in-court repudiation of that identification. (Id. at p. 273.) The trier of fact may consider such factors as the witnesss bias, attentiveness, and ability to perceive the perpetrator during the commission of the crime. (Id. at pp. 267, 274.) The trier of fact also may consider the possible reasons for the repudiation of the identification, such as the witnesss lack of memory, belief that the out-of-court identification may have been inaccurate, or fear of retaliation for making an in-court identification. (Id. at pp. 267-268.)

Here, there was uncontradicted evidence that defendants were at Montecito Park prior to the shooting. Arrieta, who knew Hernandez, spoke with him at the park about 12:00 p.m. Sanchez saw both Hernandez and Aguirre at the park between 2:00 and 3:00 p.m. In addition, Enriquez identified Hernandez as resembling the man who identified himself as Richie Boy and spoke to him at the park shortly before 3:00 p.m.; Hernandez is known as Richard.

There was evidence which could connect defendants to the shooting. Hernandez told Arrieta that he was looking to cap fools that are all tatted down; Gutierrez had tattoos on his hand and arms. A bicycle found at the scene had Joes bike written on it; Hernandezs brother was named Joe, and Hernandezs fingerprint was found on the bicycle.

Evidence found at Aguirres home identified him as a member of the Avenue 43 Gang; Carlos heard someone say Cypress Avenues 43 at the time of the shooting. Gutierrez was wearing a cap with LA on it, indicating he could be a member of a rival gang. Additionally, ammunition found at his residence was consistent with the caliber probably used to kill Gutierrez.

There was evidence identifying defendants as the men who attacked Gutierrez. From photographic lineups, Sanchez identified Hernandez as the man who hit Gutierrez and Aguirre as the shooter. Carlos identified Aguirre as the shooter from a photographic lineup. Ivonne initially identified the man who bumped into her as Manuel, which is Aguirres first name, and she identified him from a photographic lineup.

There also was evidence from which the jury could have concluded that the witnesses recanted or equivocated at trial regarding their identification of defendants due to fear of gang retaliation. Sanchez was threatened and fearful after the shooting, and prior to the preliminary hearing he told Enriquez he was reluctant to testify against defendants for fear that he or his family would be killed. Ivonne told her mother and Detective Smith that she was afraid to testify because she was afraid of Aguirres family. Officer Morales testified that the Avenues Gang was known for witness intimidation, and gangs used violence against people who testified against gang members.

Aguirre makes much of the fact that none of the witnesses testified that he or she was afraid to testify due to gang intimidation or the fear of being killed; rather, they testified that they were not afraid to testify. In light of the evidence that the witnesses previously expressed fear of testifying, the jury was entitled to reject their trial testimony as not credible and the product of fear or intimidation. It is reasonably inferable from the evidence that the witnesses were, in fact, afraid to testify against defendants and for that reason failed to identify them as the men who attacked Gutierrez. (See People v. Gonzalez (2006) 38 Cal.4th 932, 946.)

As previously stated, reversal is not warranted unless there is no hypothesis under which the trier of fact could have found the evidence consistent with guilt. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Mobley (1999) 72 Cal.App.4th 761, 788-789.) Here the evidence places defendants at the scene of the crime, gives them a motive for committing the crime, and identifies them as the perpetrators of the crime. There is evidence from which the jury reasonably could infer that the witnesses recanted their identification testimony or claimed an inability to identify defendants due to fear or intimidation. There thus is a hypothesis under which the jury could have found the evidence consistent with guilt, and substantial evidence supports the identification of defendants as the perpetrators of the crime. (People v. Cuevas, supra, 12 Cal.4th at pp. 271-272.)

B. Sufficiency of the Evidence Supporting Hernandezs Conviction as an Aider and Abettor

Hernandez contends that while there was evidence he entered Gutierrezs SUV and struck him, that contact was an independent act. There was no evidence [defendants] acted in concert or aided one another. Aguirre independently elected to shoot Gutierrez.

In order to support a conviction as an aider and abettor, the evidence must show that the defendant encouraged, aided or abetted the commission of a crime with the intent to commit, facilitate or encourage the commission of the crime. (Pen. Code,  31; People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. Beeman (1984) 35 Cal.3d 547, 560.) An aider and abettor is liable not only for the offense he or she aids and abets but also for any other reasonably foreseeable offense committed by the person aided and abetted. (Peoplev.Price (1991) 1 Cal.4th 324, 442.) What is required is that defendant knew or should have known that the charged crime was likely to happen in some manner as a result of the commission of the targeted crime. (Peoplev.Woods (1992) 8 Cal.App.4th 1570, 1602-1603.) Thus, an aider and abettor is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged. Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendants knowledge are questions of fact for the jury. (Peoplev.Croy (1985) 41 Cal.3d 1, 12, fn. 5, italics deleted, quoting from Peoplev.Durham (1969) 70 Cal.2d 171, 181.)

In determining whether to convict a defendant as an aider and abettor, the jury may consider a number of factors. These include the defendants 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.)

The evidence showed that prior to the shooting, Hernandez told Arrieta, were just looking to cap fools that are all tatted down. Later, Hernandez and Aguirre went over to Gutierrezs parked SUV. While Aguirre was talking to Gutierrez, Hernandez entered the passenger side of the SUV and began hitting Gutierrez. Hernandez then got out and ran to the drivers side. Gutierrez tried to leave, and Aguirre shot him.

It is reasonably inferable from this evidence that Hernandez intended to aid Aguirre in cap[ping a] fool[ who was] all tatted down, i.e., killing Gutierrez. While Aguirre distracted Gutierrez, Hernandez attacked him. Then Hernandez ceased his attack and got out of the way so that Aguirre could shoot Gutierrez. Their concerted action reasonably implies a common purpose. (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) Substantial evidence thus supports Hernandezs conviction as an aider and abettor. (See, e.g., People v. Salgado (2001) 88 Cal.App.4th 5, 16; Campbell, supra, at p. 409.)

C. Instruction Pursuant to CALCRIM No. 403

The trial court instructed the jury pursuant to CALCRIM No. 403 that before it could find Hernandez guilty of murder under the theory that he aided and abetted a crime, the natural and probable consequences of which was murder, it had to find defendants guilty of assault with a firearm or brandishing a firearm, and a reasonable person in Hernandezs position would have known that murder was a natural and probable consequence of one of those two crimes. Hernandez contends this was error, in that a defendant may not be convicted of murder under the theory it was a natural and probable consequence of misdemeanor brandishing a firearm.[9]

Hernandez reasons as follows: Murder is the unlawful killing of a human being . . . with malice aforethought. (Pen. Code,  187, subd. (a).) Manslaughter, however, is the unlawful killing of a human being without malice. (Id.,  192.) Manslaughter is committed when the killing takes place in the commission of an unlawful act, not amounting to felony. (Pen. Code,  192, subd. (b); accord, People v.Berryman (1993) 6 Cal.4th 1048, 1080, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Therefore, [i]f Aguirre engaged in misdemeanor brandishing and killed Gutierrez by shooting him, [Hernandez] could properly have been convicted of no greater crime than voluntary manslaughter.

Hernandez further points out that a person may be convicted of murder without having malice aforethought under the felony-murder rule, when an unintentional killing occurs during the commission of a felony which is inherently dangerous to human life. (People v. Patterson (1989) 49 Cal.3d 615, 626.) The rule does not apply where the killing occurs in the commission of a misdemeanor.

The foregoing rules have no application when applying the natural and probable consequences test to determine whether a defendant may be held liable as an aider and abettor. (Cf. People v. Nieto Benitez (1992) 4 Cal.4th 91, 107.) As stated above, whether the act committed was the natural and probable consequence of the act encouraged is a question of fact for the jury. (Peoplev.Croy, supra, 41 Cal.3d at p. 12, fn. 5; People v. Godinez (1992) 2 Cal.App.4th 492, 499.) The jury makes its determination based on the particular facts of the case. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

In order [t]o trigger application of the natural and probable consequences doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed. (People v. Prettyman (1996) 14 Cal.4th 248, 269.) For this reason, murder will not be considered the natural and probable consequence of a relatively trivial crime. (Ibid.)

Brandishing a firearm is not a relatively trivial crime in this context, however. The courts have upheld convictions for murder as the natural and probable consequence of brandishing a firearm. (See, e.g., People v. Lucas (1997) 55 Cal.App.4th 721, 731-733; People v. Solis (1993) 20 Cal.App.4th 264, 272, disapproved on another ground in People v. Prettyman, supra, 14 Cal.4th at p. 268, fn. 7.)

As noted in People v. Nieto Benitez, supra, 4 Cal.4th at pages 107-108, The natural consequences [citation] of a persons act in brandishing a firearm necessarily relate to the context in which the act was committed: for example, the brandishing (and subsequent discharge) of a firearm during a heated dispute justifiably could lead a jury to reach a verdict different from one which might be reached in a case involving an accidental shooting during a friendly hunt for wild game. When rival gangs clash today, verbal taunting [or brandishing a weapon] 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. Given the great potential for escalating violence (People v. Montes (1999) 74 Cal.App.4th 1050, 1056), murder clearly is a natural and probable consequence of a gang-related confrontation involving the brandishing of a weapon.

Hernandez relies on People v. Butts (1965) 236 Cal.App.2d 817, in which defendant participated in a barroom brawl, during which one of his codefendants used a knife to kill another participant. The court reversed defendants manslaughter conviction, holding that defendant had no way of knowing the brawl would escalate to a knife fight and therefore could not be held liable for the killing as an aider and abettor. (Id. at pp. 836-837.)

As noted in People v. Montes, supra, 74 Cal.App.4th at page 1056, Butts is . . . 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. If a gun is brandished during a gang confrontation, it is likely that it will be used. Consequently, CALCRIM No. 403 as given to the jury was not erroneous.

D. Sufficiency of the Evidence to Support the Criminal Street Gang Enhancement

Hernandez asserts that the testimony of the States gang expert, Robert Morales, was so insubstantial, uninformed, unbelievable and specious that no reasonable juror could have concluded either defendant was a member of the Avenues gang as alleged by the prosecutor. Specifically for [Hernandez], [Officer] Morales concluded he was a member of the Avenues gang essentially based on a single factor[, that] he lived in Avenues territory. . . . Under those circumstances, [Officer] Morales conclusion was meaningless and cannot in conscious [sic] support a true finding on the gang allegation.

Assuming arguendo that Officer Morales testimony rested on a shaky foundation and was contradicted in key aspects, this does not allow us to reject it if it was believed by the jury. Not even testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Evjev.City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) The court may reject evidence only if it is so inherently improbable and impossible of belief as in effect to constitute no evidence at all (Peoplev.Maxwell (1979) 94 Cal.App.3d 562, 577; see also Peoplev.Scott (1978) 21 Cal.3d 284, 296), i.e., if it is unbelievable perse, physically impossible or wholly unacceptable to reasonable minds (Evje, supra, at p. 492). Officer Morales testimony did not meet this standard.

There was substantial evidence that defendants were gang members and they committed this crime for the benefit of the gang. Officer Morales testimony provided the context for this evidence. For example, Officer Morales explained how the items found in Aguirres bedroom identified him as a gang member. He explained how Hernandezs comments and actions at the park that day indicated that he too was a gang member. The officer also explained how Gutierrezs presence in the park wearing a hat with an LA logo on it provided motivation for the crime. Additionally, Carlos heard someone say, Cypress Avenues 43 between the two gunshots. Finally, Officer Morales testified as to how the shooting benefitted the Avenues Gang by protecting its territory from perceived rival gang members.

Moreover, contrary to Hernandezs contention, Officer Morales opinion that Hernandez was an Avenues Gang member was not based solely on the fact that Hernandez lived in Avenues Gang territory. It was also based on the presence of Hernandezs photograph in Aguirres bedroom, Hernandezs statement while in Avenues Gang territory that he was looking for men with tattoos in order to shoot them, and his glaring at Gutierrez when Gutierrez was in the park wearing an LA cap.

In summary, there is substantial evidence supporting the criminal street gang enhancement. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another ground in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)

E. Prosecutorial Misconduct

Defendants contend the prosecutor committed misconduct during argument by making arguments not based on the evidence, which were designed solely to inflame the passion and prejudice of the jury. They also claim the prosecutor misstated the law, improperly vouched for the credibility of the witnesses and stated a personal belief as to defendants guilt.

Preliminarily, we address the Peoples claim that defendants contention is waived due to their failure to object and request a curative admonition below. It is well established that the issue of prosecutorial misconduct may not be raised on appeal absent a timely objection and request for admonition below, unless the nature of the misconduct was such that an objection and admonition would have been futile to obviate its prejudicial effect. (People v. Panah (2005) 35 Cal.4th 395, 462.)

Hernandez acknowledges that he failed to object to the comments he now claims constituted misconduct, but he argues that it is clear from subsequent events any objection proffered would have been denied by the trial court. He bases this argument on the fact that the trial court subsequently denied Aguirres new trial motion, which was based in part on prosecutorial misconduct, and in doing so stated that one of the challenged comments by the prosecutor was proper.[10] That the trial court found one of the prosecutors comments proper does not establish that any objection to any of the many claimed instances of misconduct would have been futile. People v. Welch (1993) 5 Cal.4th 228, cited by Hernandez, does not support his argument. Welch holds that a party may be excused from failing to object where an objection would have been futile or wholly unsupported by substantive law then in existence. (Id. at p. 237, italics added.) This case does not involve a situation in which objection to the claimed misconduct would have been futile under then-existent law but is now meritorious due to a change in the law.

Hernandez also suggests that the prosecutors comments were so inflammatory that objection and admonition would not have cured them. (People v. Panah, supra, 35 Cal.4th at p. 462.) We examine the challenged comments to determine whether they constituted misconduct and whether a timely objection and admonition would have been insufficient to cure any harm.

At the beginning of her argument, the prosecutor stated: Were here for a couple of reasons, to try to determine the defendants culpability and accountability for the murder of Efren Gutierrez. [] The community has a stake in this case. Efren Gutierrez is gone. Hes another statistic of crime violence. Obviously, your verdict is not going to bring him back but what you saw in this courtroom in terms of the testimony of the witnesses in this case and the long presentation of what they have to say there is a good reason for that and the reason is . . . that this is a gang crime and by its nature it is the type of crime where you will find that the witnesses because of the nature of the crime and because of who the killers are are not your typical witnesses. They are not people who are going to come to court freely and enthusiastically to testify about this horrendous crime.

The reality is . . . that anybody who is called to court to testify about a crime like this is by virtue of that fact placed in great personal jeopardy. [] And thats what you saw here in this courtroom. [] So the question is how did you evaluate that testimony, what do you think of that testimony, keeping in mind that these witnesses are afraid and reluctant, did not want to be in court, did not want to make a statement in this case.

It is prosecutorial misconduct to use deceptive or reprehensible methods to persuade the jury. (Peoplev.Haskett (1982) 30 Cal.3d 841, 866; Peoplev. Sassounian (1986) 182 Cal.App.3d 361, 390.) Such methods include appeals to the passion and prejudice of the jurors during argument (People v. Mayfield (1997) 14 Cal.4th 668, 803) or appeals for sympathy for the victim (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on another ground in Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293]).

The brief reference to the communitys stake in the outcome of the trial, though potentially an appeal to the passion and prejudice of the jury, was not so inflammatory as to constitute prejudicial misconduct (see People v. Wash (1993) 6 Cal.4th 215, 262; People v. Adanandus (2007) 157 Cal.App.4th 496, 513, 515) and was certainly not so inflammatory as to be irremediable by objection and admonition. The same is true of the prosecutors statement that the jurys verdict could not bring Gutierrez back. (See People v. Stansbury, supra, 4 Cal.4th at p. 1057.)

The references to this being a gang crime, the effect of such crime on the willingness of witnesses to testify and the nature of the testimony were proper argument based on reasonable inferences drawn from the evidence. (People v. Sandoval (1992) 4 Cal.4th 155, 180; People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) As explained in part A. of the Discussion, it is reasonably inferable from the evidence that certain witnesses were afraid to testify against defendants due to fear and threats.[11]

Near the end of her closing argument, the prosecutor stated: I dont have to . . . prove the allegation that this crime was committed for the benefit of the gang. I dont have to prove that either one of these individuals was a gang member. This could have been the beginning of a career as a gang member for either one of these guys. You could find that theyre both associates and you do not find that theyre gang members. You can say I believe that Richard Hernandez is an associate.

It is prosecutorial misconduct to misstate the applicable law. (People v. Gray (2005) 37 Cal.4th 168, 217.) Clearly, the prosecutor misstated the applicable law concerning her burden of proof as to the gang allegation. (CALCRIM No. 1401.) Contrary to Hernandezs claim, it is not clear that she did this in an attempt to lessen her burden of proof rather than simply making a misstatement in her attempt to argue that she did not need to prove defendants were actual gang members rather than associates. In any event, the trial court properly instructed the jury on the prosecutors burden of proof. It also instructed the jury pursuant to CALCRIM No. 200: You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions. Absent any contrary indication, we presume the jury followed this instruction. (Gray, supra, at p. 217.) The misstatement of the law did not constitute prejudicial misconduct and certainly could have been remedied by objection and admonition.

Finally, Aguirre asserts that the prosecutor committed reversible misconduct in her opening statement, when she stated that Carlos will testify that he observed the murder, that he observed Efren Gutierrez actually being shot by Mr. Aguirre, and Ivonne will testify that she did not actually see the shooting but that after the shooting she came out from some bushes that she was hiding in when she heard the shooting and . . . somebody ran into her and that person is a person that she knew by the name of Manuel.

Aguirre argues that it is misconduct to refer to facts in an opening statement without a reasonable and good faith belief that there will be evidence introduced to prove those facts. In Aguirres view, since neither Carlos nor Ivonne could positively identify him, the prosecutors statement that they would identify him constituted misconduct.

Eyewitness identification evidence need not be positive to support a conviction. (People v. Cooks (1983) 141 Cal.App.3d 224, 278.) Aguirres assertion of misconduct thus is without merit. Moreover, the court correctly admonished the jury that opening statements and closing arguments were not evidence, and [w]e presume that the jury heeded the admonition and any error was cured. (People v. Smith (2005) 135 Cal.App.4th 914, 925; accord, People v. Cook (2006) 39 Cal.4th 566, 607.)

In summary, none of the claimed instances of prosecutorial misconduct, if misconduct at all, was so prejudicial that any harm could not have been cured by an appropriate objection and admonition. Therefore, defendants have waived their claims of prosecutorial misconduct by failing to object to the prosecutors challenged comments or to request curative admonitions. (People v. Panah, supra, 35 Cal.4th at p. 462.)

F. Instructional Error

Defendants first contend CALCRIM No. 300 improperly suggests that the defense has an obligation to produce evidence.[12] As Hernandez acknowledges, the courts have previously rejected this contention. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190, review den. Jan. 30, 2008; People v. Anderson (2007) 152 Cal.App.4th 919, 937-938, review den. Oct. 10, 2007.) We agree that it is not reasonably probable the jury would interpret CALCRIM No. 300 as placing a burden of producing evidence on defendants in light of the other instructions given on the prosecutions burden of proof beyond a reasonable doubt. We presume that jurors are able to correlate, follow, and understand the courts instructions. (Ibarra, supra, at p. 1190.)

Defendants further contend that CALCRIM No. 315 improperly suggests that the only factors the jury can consider in evaluating identification testimony are those listed in the instruction.[13] This contention has been rejected by Division Four of this court in People v. Felix (2008) 160 Cal.App.4th 849, 858-859, review denied June 11, 2008.

As in Felix, [a]side from CALCRIM No. 315, the jury also received CALCRIM No. 226, which states in pertinent part: In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. (Italics added.) Because CALCRIM No. 315 advised the jury to evaluate an eyewitness as it would any other witness, CALCRIM No. 315 did not oblige the jury to disregard factors not listed in the instruction. Reasonably viewed, CALCRIM No. 315 directed the jurors attention to the listed factors, but permitted them to consider other factors. There was no instructional error. (People v. Felix, supra, 160 Cal.App.4th at pp. 858-859.)

Defendants argue that CALCRIM No. 318 unfairly and improperly lessened the Peoples burden of proof, in that it created an improper presumption that a witnesss unsworn out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury.[14] We disagree.

CALCRIM No. 318 instructs the jury that it may use the out of court statements in assessing the credibility of a witnesss in-court testimony, and it may use the statements as evidence of the truth of those statements. No presumption is created.

Additionally, the jury was instructed pursuant to CALCRIM No. 220 that in deciding whether the People proved their case beyond a reasonable doubt, the jury must impartially compare and consider all the evidence that was received throughout the entire trial. The jury was further instructed pursuant to CALCRIM No. 226 that among the factors the jury could consider in evaluating a witnesss credibility was, Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? Again, we presume that the jurors were able to correlate, follow, and understand the courts instructions. (People v. Ibarra, supra, 156 Cal.App.4th at p. 1190.)

Finally, defendants assert that CALCRIM No. 400 improperly lessened the prosecutions burden of proof by implying that one of the defendantsthe principalhas actually committed the charged crime.[15] Again, we disagree.

Defendants contend that by referring to a perpetrator who committed a crime, CALCRIM No. 400 implies that the crime was actually committed by that person, when in fact the determination of whether or not the alleged perpetrator committed the offense is a factual issue for the jury to determine. We do not believe a reasonable jury would interpret the instruction in this manner.

First, the instruction addresses the ways i