P. v. Rodriguez

Filed 8/22/07 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from judgments of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed and remanded with directions.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Angel Rodriguez.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Christian Omar Hernandez.

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Mauricio Montes.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Angel Rodriguez, Christian Omar Hernandez and Mauricio Montes appeal from the judgments entered following their convictions by a jury on one count of murder with special circumstances (lying in wait and discharging a firearm from a motor vehicle) and one count of conspiracy to commit murder. On appeal they primarily contend the trial court erred by excluding evidence Juan Chavez, the man who actually shot the murder victim, was acting with a purpose not known to Rodriguez, Hernandez or Montes and improperly instructing the jury conspiracy to commit murder did not require proof that each defendant individually intended to kill the victim. We remand the matter for the trial court to clarify and correct its restitution order but otherwise affirm the judgment in full.

FACTUAL AND PROCEDURAL BACKGROUND

In separate statements to police detectives following their arrests,[1]Rodriguez, Hernandez and Montes admitted they were riding together with Chavez in Rodriguezs green Jeep Cherokee, seeking to avenge the stabbing of their friend and fellow Down With Pacoima (DWP) crew member Edgar Estrada two days earlier in front of Polytechnic High School in Sun Valley, Vineland Boys street gang territory, when Chavez shot and killed Santiago Polanco, a member of the Vineland Boys gang. Chavez used the .38 caliber revolver Hernandez had brought into the Cherokee, a weapon fired moments earlier by Montes at a white Honda driven by an individual also thought to be a member of the Vineland Boys gang. The defense argued Chavez had unexpectedly shot Polanco because he had been a victim of an earlier shooting by a member of the Vineland Boys gang, not in planned retaliation for the attack on Estrada ‑‑ a theory necessarily rejected by the jurys verdicts finding Rodriguez, Hernandez and Montes guilty of first degree murder with special circumstances.

1. The Stabbing of Estrada

The evidence at trial established that Estrada was stabbed after being chased by four boys near Polytechnic High School on the afternoon of December 11, 2001. A teacher at the school, who had witnessed the incident, subsequently saw Estrada sitting in a green Jeep Cherokee at a gas station with three or four other Hispanic males.

According to their statements to police investigators, Hernandez was called the day after the stabbing and told his friend Estrada was in the hospital; on that same day ‑‑ the day before Polancos murder ‑‑ Rodriguez, Montes and Chavez visited Estrada in the hospital. In his statement to the police, Montes indicated people on the street were identifying one of three groups ‑‑ the Vineland Boys gang, the Diablo tagging crew or a group known as Evil Kings or EK ‑‑ as being responsible for the assault on Estrada although Rodriguez, Hernandez and Montes blamed EK. Montes described EKs as wannabes who looked up to Vineland Boys. Rodriguez said Chavez told Estrada while they were visiting him in the hospital, Were going to find EKs. In his written statement for detectives Rodriguez explained, We talked about what happened to him [Estrada] and he told us. We told him that we would get EK back for what happened.

2. The Search for Payback

On the morning of December 13, 2001 Rodriguez, driving his green Jeep Cherokee with Chavez in the front passenger seat, picked up Montes, who rode in the rear seat behind Rodriguez, and then Hernandez, who sat in the rear seat behind Chavez. The four men drove to the area of Polytechnic High School, according to Rodriguez, to get some EKers, I guess, you know, rumble as payback for the stabbing of Estrada.[2] Hernandez admitted he brought the murder weapon, which the police subsequently seized from his home; Rodriguez and Montes acknowledged they were aware Hernandez had a loaded gun. According to Montes, Hernandez also brought extra ammunition. Montes thought to himself something bads going to happen, as soon as he learned about the gun.

3. The Gang Challenge to Rafael Caseras

At approximately 11:20 a.m. on December 13, 2001, as he was on his way to class at Polytechnic High School, ninth grade student Rafael Caseras was hailed by the front passenger in a green Jeep Cherokee, who shouted DWP. Down with Pacoima, and asked, Where are you from? Caseras, who had a shaved head and dressed in gang attire, but who was not yet a member of Vineland Boys, the dominant gang around Polytechnic High School, did not respond and walked away. Caseras testified he understood the question, where are you from? to mean what gang do you belong to? The Cherokee, which carried three passengers in addition to the driver, drove down the street, made a U-turn and returned to the area. At trial, Caseras, then an active member of Vineland Boys, testified in 2001 EK was friendly with Vineland Boys, while DWP and Vineland Boys were rivals.

4. The Attack on the White Honda

A few minutes after Caseras encountered Rodriguezs green Jeep Cherokee, Robert Montez saw the Jeep and a white Honda at the intersection of Sharp Avenue and Sheldon Street in Sun Valley, three blocks from Polytechnic High School. The Honda was driven by a young Hispanic male with a shaved head or very short hair. Montez saw an arm holding a gun reach out from the rear window on the drivers side of the Jeep, pointed at the white Honda. Two or more shots were fired. The driver of the Honda made a U-turn and left the intersection; the Jeep Cherokee also made a U-turn and followed the Honda.

Montes admitted to the police he had fired two shots at the driver of the white Honda. Montes explained the driver of the Honda had apparently noticed the P hats (standing for Pacoima) worn by several of the Jeeps occupants and began following them. As the two cars got close to each other, someone in the Jeep passed the gun to Montes, and he was told he would have to handle it because its on your side. Montes claimed the driver of the Honda displayed a gun; Montes fired two shots at the Honda; the Hondas driver did not fire his weapon. At some point after this shooting, Hernandezs revolver was passed from Montes to Chavez.

5. The Murder of Polanco

The factual circumstances of Santiago Polancos murder are essentially undisputed. Polanco, who was known as Little Boy, and Martin Sotelo left Polytechnic High School during the morning of December 13, 2001 to smoke marijuana in an alley across the street from the school. As they crossed the street (Peoria Street) to get to the alley, a green Jeep Cherokee passed in front of them. Once in the alley, Polanco and Sotelo were joined by two girls from the school.

As the four students smoked marijuana, Sotelo noticed the green Cherokee was now parked in the alley close to Sharp Avenue, a cross street that bisected the alley, and observed the four occupants of the vehicle looking at them. After five or 10 minutes, the Cherokee left the alley and drove away (up Sharp Avenue). After they finished smoking, Polanco, Sotelo and the two girls walked down the alley toward Sharp Avenue. Sotelo lagged behind the three, rolling another joint. He heard a car coming, looked up and saw the Cherokee return. The front passenger in the Cherokee, a Hispanic male with a shaved head, fired a shot at Polanco using a black revolver. Sotelo took cover behind a cement wall and heard two additional shots. The Cherokee drove past Sotelo toward Peoria Street. Sotelo ran to Polanco, who was lying on the ground at the end of the alley and looked as if he could not breathe. Paramedics arrived sometime thereafter. Polanco died from multiple gunshot wounds; two bullets were recovered from his body.

According to Montess statement to the police, he and the others in Rodriguezs Cherokee were cruising around, like, around the block, Poly and all that. And then we had ‑‑ then we saw a Vineland Boy going down the street off ‑‑ of the alley, so then we went around. We saw him there. And we waited until that ‑‑ until he walked towards, like our way. And as soon as he did that, we got up close to him. And then he was on the ‑‑ he was on the right side on ‑‑ on the passengers window. And that was where [Chavez] was ‑‑ was at. And then they just looked at each other. And, I guess, that guy [Polanco] said ‑‑ he said, Vineland, low pro [in a low voice]. In response to further questioning, Montes explained the Cherokee was initially parked in the back of the alley, across the street; then circled around the block; and finally stopped right there at the front . . . that was when the guy was coming towards us. Chavez then shot Polanco once as he was trying to back away from the Cherokee and two more times after Polanco fell to the ground.

In his written statement, Rodriguez said, We drove around in the jeep looking for EK-ers but all we found was a Vineland Boy and [Chavez] just told us where to go. So we ended up going to alley, and [Chavez] shot the Vineland boy. After that we left . . . .

6. The Police Investigation and Interviews

Executing search warrants issued in the investigation of Polancos murder, police officers on December 21, 2001 recovered indicia of membership in DWP at the homes of Estrada, Rodriguez, Hernandez and Montes. (Chavezs home was not searched at this time. A subsequent search of his parents home, conducted with their consent, disclosed a magazine with DWP and other writings on it.) The murder weapon was recovered from Hernandezs home.[3] A green Jeep Cherokee was parked in Rodriguezs driveway; the vehicle was photographed and impounded by the police.

On the same day 15 individuals, including Rodriguez, Hernandez and Montes were interviewed by detectives from the Los Angeles Police Department. As discussed, notwithstanding initial denials of involvement or direct knowledge of the Polanco shooting, Rodriguez, Hernandez and Montes all ultimately identified Chavez as the shooter and admitted they were in Rodriguezs Jeep Cherokee when Polanco was murdered. All three claimed shooting Polanco was not part of their plan to avenge Estradas stabbing and asserted Chavezs actions were the result of a personal dispute he had with the Vineland Boys gang.

In his initial statements, while insisting he had not been present at the shooting and had simply been told about it afterward by Chavez, Montes said Chavez told him he shot Polanco because Chavez had previously been shot by someone from the Vineland Boys gang. After admitting his involvement in the incident, Montes continued to assert he did not know what Chavez was going to do when Polanco approached the Cherokee: [A]ll I could tell is the other guy [Chavez] had shot him because he had gotten shot by them. And you know, I was ‑‑ knew he was out there looking for revenge, but I didnt know he was going to do it while we were there, you know. He just did it. After the shooting Chavez told Montes that Montes would not see him for a long time.

In his statement Hernandez, who refused to identify Chavez as the front seat passenger, also said that individual had a personal grudge against someone in the Vineland Boys gang or against the gang generally. Hernandez said he did not know the basis for the grudge. In similar fashion Rodriguez, while still claiming he did not even know the shooter (referred to at this point as Alex, rather than Chavez) had a gun, said the shooting was unplanned, explaining that the shooter apparently knew the victim: He recognized him. He knew him from somewhere else. . . . I guess he took advantage.

On the day Rodriguez, Hernandez and Montes were interviewed, police officers attempted to locate Chavez at the address Montes had provided during his statement. Although the police confirmed Chavezs parents lived at the address, Chavez could not be found. The residence was searched several weeks later. At the time of trial Chavez had not been arrested.

7. The Charges and Repeated Mistrials

Rodriguez, Hernandez and Montes were charged in a two-count information with one count of murder (Pen. Code, 187, subd. (a))[4]with special circumstances allegations the murder was committed by discharging a firearm from a motor vehicle at a person outside the vehicle ( 190.2, subd. (a)(15)) and by means of lying in wait ( 190.2, subd. (a)(21)) and one count of conspiracy to commit murder ( 182, subd. (a)(1)). It was specially alleged as to both counts that the crimes were committed for the benefit of, at the direction of and in association with a criminal street gang ( 186.22, subd. (b)(1)), that a principal had used a firearm in committing the offenses ( 12022, subd. (a)(1)) and that a principal had personally and intentionally discharged a firearm during the commission of the offenses causing death or great bodily injury ( 12022.53, subds. (b), (c), (d) & (e)).

An initial jury trial terminated in a mistrial before the presentation of evidence had been completed. A second trial ended during jury selection when the People and the defense agreed they were unable to proceed. (See 1387.2.) A third trial ended when the court declared a mistrial after the jury announced it was deadlocked. The fourth trial, which resulted in the verdicts and judgments now on appeal, began on January 9, 2006.

8. Gang Testimony

In addition to defendants statements to police detectives and testimony concerning the events described above, the People presented expert testimony from Los Angeles Police Officer Daniel Fournier concerning gang culture. Fournier testified when a gang member is assaulted or otherwise challenged (disrespected), other members of the gang are expected not only to retaliate but also to escalate the nature of the retaliation. Fournier also testified there is no such thing as a personal beef in gang culture: If you have a beef against a member of a gang, you have a beef against the whole gang. That is how the gang manifests its power is that an attack on one is an attack on all, basically. In addition, in Fourniers opinion, if a loaded gun is brought along during a retaliation mission by gang members the members would expect to use it.

Officer Fournier testified when a crew or gang cliques up[5]or aligns itself with another gang, the two groups agree to have common enemies. Their enemies become common. That is the whole reason for cliqueing up. Fournier first became familiar with DWP after the murder of Polanco in December 2001. Fournier explained Pacoima is an area just north of Polytechnic High School. Pacoima Knock Knock Boys (PKKB) was a larger gang in Pacoima, whose main enemy in December 2001 was Vineland Boys. Fournier believed that DWP and PKKB were cliqued up together and that EK was cliqued with Vineland Boys in December 2001. He testified Vineland Boys and EK claimed the area that included Polytechnic High School and both gangs were regarded by DWP as its enemy.

Based on his own research and the records collected by the Los Angeles Police Department gang task force, Officer Fournier expressed the opinion Chavez was a DWP member with the gang name M-Borg: Chavezs gang name appeared on several roll call sheets found in the homes of DWP members and DWP-related paraphernalia was found in his home when it was searched. Fournier explained that at the earlier trial in 2005 he had testified Chavez was a member of PKKB, as well as DWP, based on information from untested informants. The presence of DWP graffiti in Chavezs house corroborates his membership in DWP; there was no similar corroboration of his membership in PKKB. In Fourniers opinion Estrada, Rodriguez, Hernandez and Montes were also DWP members.

Officer Fournier testified, in his opinion, DWP had started as a tagging crew but had evolved into a criminal street gang. He also opined, based on the facts of this case, the murder of Polanco was committed to benefit DWP.[6]

In a joint presentation on behalf of all defendants, Detective Andres Alegria, the supervising detective of the homicide gang unit in the Los Angeles Police Departments northeast division in 2001, testified, although he was familiar with Vineland Boys and came to know of the Pacoima Knock Knock Boys in 2001, he was not familiar with either a gang or tagging crew named Down With Pacoima or DWP prior to December 13, 2001. Alegria said his testimony at the earlier trial that Chavez was a member of PKKB was based on information from an untested informant. His opinion at the time of the current trial was that Chavez was a member or associate of DWP in 2001 and might also have been a member of PKKB at that time. On cross-examination by the People, Alegria testified, because DWP was a clique of PKKB, the two were essentially the same gang.

9. The Jurys Verdict and Sentencing

The jury found Rodriguez, Hernandez and Montes guilty of first degree murder and conspiracy to commit murder and found true the special circumstances allegations. The jury also found true all the firearm enhancements alleged, but found not true the gang enhancement allegations.

The trial court sentenced each of the three defendants to life imprisonment without the possibility of parole for murder (count 1). The court imposed a 25-years-to-life sentence for conspiracy to commit murder, which it stayed pursuant to section 654. Because the gang enhancement allegations had been found not true by the jury, the court vacated the true findings as to the firearm-use enhancements under section 12022.53, subdivision (e). Pursuant to section 1385 the court struck the remaining firearm enhancement.

CONTENTIONS

Rodriguez, Hernandez and Montes contend the trial court committed prejudicial error by excluding evidence supporting the defense claim Chavez spontaneously shot Polanco for personal reasons not known to them, rather than in retaliation for the stabbing of Estrada, and by incorrectly instructing the jury with a portion of CAJLIC No. 8.69 that states the jury must find at least two of the persons to the agreement harbored . . . a specific intent to kill, thereby suggesting the jury could convict each defendant of conspiracy to commit murder even if that defendant had not formed the specific intent to kill.[7] Hernandez argues the trial courts decision to use the CALJIC pattern jury instructions, rather than the then-newly approved Judicial Council of California Criminal Jury Instructions (CALCRIM), constitutes additional instructional error. Montes also contends the trial court improperly excluded evidence he had no prior criminal record and erred in failing sua sponte to give a limiting instruction concerning the jurys consideration of his uncharged prior act of shooting at the white Honda. Finally, Rodriguez contends the abstract of judgment does not correctly record the victim restitution award ordered by the court.

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in Excluding Evidence Purportedly Relevant to Chavezs Personal Motivation for Shooting Polanco

Challenging several of the trial courts rulings excluding evidence offered in support of the defense theory Chavez spontaneously shot Polanco as a result of a prior conflict between the two men that had not been disclosed to the other occupants of Rodriguezs Jeep Cherokee, Rodriguez, Hernandez and Montes argue the courts erroneous exclusion of evidence violated their federal constitutional rights to present a defense. As we discuss, the trial court did not abuse its discretion or otherwise commit error under state law in its evidentiary rulings. Accordingly, because they were able to present their personal beef defense to the jury, albeit without all of the purportedly supporting evidence they wished, there was no violation of Rodriguez, Hernandez and Montess due process rights: As a general proposition, the ordinary rules of evidence do not infringe on a defendants right to present a defense. [Citation.] Trial courts possess the traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citation.] The trial courts rulings in this regard will not be overturned on appeal unless it can be shown that the trial court abused its discretion. (People v. Frye (1998) 18 Cal.4th 894, 945; see People v. Robinson (2005) 37 Cal.4th 592, 626-627 [[t]here was no error under state law, and we have long observed that, [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense]; People v. Prince (2007) 40 Cal.4th 1179, 1243.)[8]

In their statements to police detectives investigating the murder of Polanco, Rodriguez, Hernandez and Montes all asserted in one fashion or another that Chavez had shot Polanco suddenly, for personal reasons that were not part of any preexisting plan to avenge the attack on fellow-DWP-member Estrada. For example, Montess statement to Detective Morales included his assertion the other guy [Chavez] had shot him [Polanco] because he had gotten shot by them, as well as Chavezs purported comment to Montes following the shooting that he did not care about killing Polanco because they did that to me. Audio recordings of those statements were played for the jury; the transcripts were provided to the jury and portions were read by various witnesses; and defense counsel emphasized this evidence in opening statements and closing arguments.

To bolster the personal beef defense articulated in their police statements, Rodriguez, Hernandez and Montes sought to introduce evidence that Chavez had been shot several months prior to the Polanco murder, either by Polanco himself or by another member of Polancos Vineland Boys gang. However, rather than proffer direct evidence a shooting had occurred through the testimony of a percipient witness or provide competent medical evidence of Chavezs gunshot wounds, defense counsel attempted to establish these facts indirectly though hearsay statements, apparently including a police report of the incident (see People v. Baeske (1976) 58 Cal.App.3d 775, 780-781 [witness statements contained in police report inadmissible hearsay]), and marginally relevant (at best) evidence of Chavezs post-murder actions. On appeal Rodriguez, Hernandez and Montes challenge the trial courts evidentiary rulings rejecting several of those attempts.

a. Evidence of Chavezs flight and fugitive status

The defense sought to introduce evidence of Chavezs apparent flight to Mexico and his fugitive status at the time of trial by way of cross-examination of Detective Morales. Rodriguez, Hernandez and Montes assert the evidence was highly probative because Chavezs flight, when contrasted with their own continued presence in Los Angeles, demonstrated his greater consciousness of guilt and, therefore, supported their contention they did not know Chavez was going to shoot Polanco before the murder took place. (The jury did learn from Montess statement to the police that Chavez purportedly told Montes after the shooting that Montes would not see him for a long time; the jury was also informed Chavez had not been located when the police initially went to his parents home some time after the murder.) The trial court precluded any use of that evidence, finding it would be inconsistent with instructing the jury under CALJIC No. 2.11.5 that it was not to speculate why another person involved in the crime was not on trial and its probative value was substantially outweighed by the consumption of time required to address the issue. (Evid. Code, 352.)[9]

The trial court properly exercised its discretion to exclude the proffered evidence in this case. No one disputed Chavez was the shooter or that his culpability was greater than that (if any) of Rodriguez, Hernandez and Montes. Chavezs consciousness of his own guilt, therefore, is not in any way probative of the defense contention the shooting was spontaneous and not part of the planned retaliation for the stabbing of Estrada. (See Evid. Code, 210 [[r]elevant evidence means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action]; see People v. Ochoa (2001) 26 Cal.4th 398, 437-438 [[t]he exercise of discretion is not grounds for reversal unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice].)

b. Evidence Chavez was charged with Polancos murder

The defense also sought to introduce evidence (by request for judicial notice) Chavez had been charged by criminal complaint with Polancos murder. On appeal Montes explains the charging decision, together with the fact Chavez had not been apprehended, constitute a form of enhanced flight evidence. As with the other proffered evidence regarding Chavezs flight and fugitive status, the trial court did not abuse its discretion in denying the request as irrelevant or, alternatively, under Evidence Code section 352.

c. Evidence a medical bill was found at Chavezs home

In addition to writings linking him to DWP, when searching the home of Chavezs parents, the police found an August 2001 medical bill (or bills) in Chavezs name. The defenses offer of proof asserted the bill would establish Chavez had been shot prior to the murder of Polanco, thus corroborating the defense theory Chavez had a personal motive to shoot Polanco. Although the trial court indicated evidence could be introduced that bills in Chavezs name had been found at this parents home in order to establish he lived in the home, it ruled any reference to a document as a medical bill or other reference to the contents of the bill was impermissible hearsay and was also excludable under Evidence Code section 352 as requiring an undue consumption of time that outweighed the evidences probative value.

The trial courts hearsay ruling was correct. (See People v. Maki (1985) 39 Cal.3d 707, 711-713 [contents of documents constitute hearsay; documents not properly admitted into evidence at criminal trial absent applicable exception to hearsay rule]; see also People v. Williams (1992) 3 Cal.App.4th 1535, 1542-1543 [Like a utility bill, the fishing license and two checks at issue here are more likely to be found in the residence of the person named on those documents than in the residence of any other person. Accordingly, regardless of the truth of any express or implied statement contained in those documents, they are circumstantial evidence that a person with the same name as the defendant resided in the apartment from which they were seized. Therefore, when introduced for the purpose of showing that residency, they are admissible nonhearsay evidence].)

Similarly, we find no basis in this record to conclude the trial courts decision to preclude any identification of the document as a medical bill under Evidence Code section 352 constituted an abuse of discretion. Without more information concerning the nature or timing of the injury or illness involved, such a descriptive reference to a document found in Chavezs home would have only minimal probative value, while likely either producing confusion as to its meaning or requiring an undue consumption of time in attempting to prove details regarding the nature and timing of Chavezs injuries in a nonhearsay manner (something Rodriguez, Hernandez and Montes made no effort to do).

d. Restrictions on cross-examination of Officer Fournier regarding the shooting of Chavez

As discussed, Officer Fournier, the Peoples gang expert, testified in his opinion there was no such thing as a personal beef in gang culture. Because the contention Chavez had an undisclosed personal motive for shooting Polanco was central to the defense case, Fourniers no-personal-beefs opinion was the subject of extensive questioning on both direct and cross-examination (as well as re-direct and re-cross). Nonetheless, Rodriguez, Hernandez and Montes argue the trial court unfairly restricted their cross-examination of Fournier by improperly limiting their use of hearsay information regarding the shooting of Chavez to test Fourniers opinion. (See, e.g., People v. Montiel (1993) 5 Cal.4th 877, 924 [[i]t is common practice to challenge an expert by inquiring in good faith about relevant information, including hearsay, which he may have overlooked or ignored].)

The record simply does not support the contention the trial court restricted defense counsels efforts to induce Officer Fournier to concede a gang member could, under specific circumstances, hold a personal grudge that did not involve other members of his gang. For example, counsel for Montes had Fournier read from the portion of the transcript of Montess statement to Detective Morales in which Montes said Chavez shot Polanco because Chavez had gotten shot by them and, you know, I was ‑‑ knew he was out there looking for revenge, but I didnt know he was going to do it while we were there, and then asked, Given that statement by [Montes], does that change your opinion that there cant be personal beefs? Fournier responded in the negative. Similarly, counsel for Hernandez challenged Fourniers opinion by asking whether an affront or dispute involving only a single member of a gang must be communicated to other members of the gang before it implicates the whole gang. Fournier responded, Not always.

What the trial court did not permit were questions that attempted to use cross-examination of Officer Fournier as means of placing before the jury otherwise inadmissible hearsay evidence. In fact, notwithstanding their sweeping general descriptions of the limitations imposed by the trial court, Montes identifies only two specific rulings he claims impermissibly restricted the defense cross-examination of Fournier (neither Rodriguez nor Hernandez raises additional rulings involving Fournier): First, because Fournier based his opinion Chavez was a member of DWP in part on items recovered during the search of Chavezs home, counsel for Rodriguez requested permission to ask Fournier about the medical bill, which had also been discovered at Chavezs residence. The trial court once again stated the bill was inadmissible hearsay to prove Chavezs involvement in an earlier shooting with someone from the Vineland Boys gang, There are ways to investigate and discuss this issue of personal beef, but not through the source you have indicated. So it does call for inadmissible hearsay. It is way over the top. As discussed, the trial courts ruling on the admissibility of the contents of the medical bill as substantive evidence (that is, to prove Chavez was injured) was correct. Counsel did not suggest any other relevance for questioning Fournier about the bill. The trial courts ruling was not error.

Second, counsel for Rodriguez, continuing with questioning about Chavezs purported personal motivation for shooting Polanco on recross-examination, asked Officer Fournier, It has been brought out by both the prosecution and the defense, Mr. Rodriguez indicates in several portions of the interview that the shooter had a personal beef, right? Fournier responded, Correct. Then counsel asked, As an expert, are you aware of any fact to substantiate that Juan Chavez had a personal beef with Santiago Polanco or the group of Vineland Boys as a gang? The prosecutor objected; and the court sustained the objection, explaining that counsel was once again seeking to place before the jury inadmissible hearsay evidence concerning the alleged prior shooting incident involving Chavez. [The prosecutor] has been very careful to ask questions in this vein based upon statements in this case or the underlying facts of this case as testified to and are in evidence. You are seeking to go beyond that, Mr. Nardoni [Rodriguezs counsel], into completely different territory, and it is the exact same territory we discussed earlier. Plainly, the question to which the People objected was not directed to undermining Fourniers expert opinion testimony concerning gang culture and the implausibility of the defense theory of a personal grudge motivating an unplanned murder of a gang member by a member of a rival gang, but to eliciting specific, hearsay information as independent proof concerning Chavez that the defense had not otherwise been able to present to the jury. The trial court did not abuse its discretion in sustaining the Peoples objection to this question. (See People v. Gardeley (1996) 14 Cal.4th 605, 619 [trial court has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay]; People v. McFarland (2000) 78 Cal.App.4th 489, 495 [[a]lthough an expert may base an opinion on reliable hearsay, such evidence is not independently admissible]; see also McGarity v. Department of Transportation (1992) 8 Cal.App.4th 677, 684 [a party may ask an opposing expert whether he or she is aware of material relevant to the subject matter of the experts opinion but may not introduce evidence of the content of the material, unless the expert referred to, considered, or relied upon the material].)

2. The Trial Court Did Not Commit Reversible Error in Instructing the Jury Regarding the Elements of a Conspiracy To Commit Murder

a. The specific intent requirement for conspiracy to commit murder

A conviction for conspiracy to commit murder requires a finding the defendant specifically intended to kill ‑‑ that is, express malice. (People v. Swain (1996) 12 Cal.4th 593, 607 [a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice].) Conspiracy is a specific intent crime. . . . The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense. [Citation.] (Id. at p. 600; see People v. Petznick (2003) 114 Cal.App.4th 663, 680-681 (Petznick) [for defendant to be guilty of the crime of conspiracy to commit murder, he had to have been one of the participants who harbored the specific intent to kill].)

b. The courts instructions

The trial court instructed the jury on the charge of conspiracy to commit murder using CALJIC No. 8.69. As given in this case, CALJIC No. 8.69 provides: Each defendant is accused in Count 2 of having committed the crime of conspiracy to commit murder in violation of Penal Code section 182(a)(1)/187(a) of the Penal Code. [] Every person who conspires with any other person or persons to commit the crime of murder is guilty of a violation of Penal Code section 182(a)(1)/187(a), a crime. [] Murder is the unlawful killing of a human being with malice aforethought. [] A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being.  [] In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the Information to be an overt act and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that defendant personally committed an overt act, if he was one of the conspirators when the overt act was committed. [] The term overt act means any step taken or act committed by one [or more] of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.  [] To be an overt act, the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act.  [] In order to prove this crime, each of the following elements must be proved:  [] 1. Two or more persons entered into an agreement to kill unlawfully another human being; [] 2. At least two of the persons specifically intended to enter into an agreement with one or more other persons for that purpose; [] 3. At least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and [] 4. An overt act was committed in this state by one or more of the persons who agreed and intended to commit murder.

The court also instructed the jury, in accordance with CALJIC No. 6.22, that it must separately consider whether each of the three defendants was guilty of the alleged conspiracy to commit murder: Each defendant in this case is individually entitled to, and must receive, your determination whether he was a member of the alleged conspiracy. As to each defendant, you must determine whether he was a conspirator by deciding whether he willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy. [] Before you may return a guilty verdict as to any defendant of the crime of conspiracy, you must agree unanimously and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime of murder and (2) a defendant willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy. . . .

c. The courts instructions did not erroneously permit the jury to find Rodriguez, Hernandez or Montes guilty of conspiracy to commit murder without regard to whether he personally intended to kill

Focusing on the trial courts instruction that, to prove conspiracy to commit murder, the People must establish [a]t least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being,[10]Rodriguez, Hernandez and Montes argue the jury may have understood it could convict all three defendants on the conspiracy charge even if only two of the four occupants of Rodriguezs Jeep Cherokee (Chavez and one of the three defendants) specifically intended that one of the members of the conspiracy would kill.[11] We do not agree there is a reasonable likelihood the jury understood the courts conspiracy instructions, viewed in their entirety, in this manner. (See People v. Harrison (2005) 35 Cal.4th 208, 252 [defendants argument that jury was confused by courts instruction rejected when there was no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction]; People v. Osband (1996) 13 Cal.4th 622, 679 [appellate court reviews claim of ambiguity in instruction by determining whether, in light of all the instructions given, there is a reasonable likelihood that the jury construed or applied the challenged instruction[s] in an objectionable fashion]; People v. Cain (1995) 10 Cal.4th 1, 36 [jury instructions reviewed as whole to determine if there is reasonable likelihood jury understood the instructions to permit conviction on improper basis].)

The trial court correctly defined a conspiracy to commit murder as an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act, and properly elaborated on that definition by instructing that a conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being and that to find a defendant guilty of such a conspiracy there must be proof of the unlawful agreement and specific intent. The court additionally instructed the jury it must consider the conspiracy charge separately as to each defendant and that, as to each of them, it must find beyond a reasonable doubt there was a conspiracy to commit the crime of murder and that particular defendant willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy. When viewed in context, the at least two language challenged by Rodriguez, Hernandez and Montes simply told the jury it need not find all three defendants guilty of conspiracy to commit murder in order to find any of them guilty of that offense. Put differently, if only Rodriguez (who brought along the loaded gun) and Chavez had agreed to commit a murder, Hernandezs and Montess participation with Rodriguez and Chavez in a conspiracy to commit assault in retaliation for the stabbing of Estrada would not exonerate Rodriguez from the conspiracy to murder charge because at least two persons to the agreement harbored express malice aforethought; but the instructions cannot reasonably be construed to allow a conviction of Hernandez and Montes for conspiracy to commit murder under that hypothetical factual scenario.

The implausibility of any jury confusion as to the required specific intent is confirmed by its additional true findings as to each defendant of the special circumstances allegations that the murder of Polanco was committed by means of lying in wait and by intentionally discharging a firearm from a motor vehicle at a person outside the vehicle. Although a guilty verdict on the first degree murder charge itself could have been based on a jury finding the murder of Polanco was the natural and probable consequence of the commission of one of three named target offenses (assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), assault with a firearm ( 245, subd. (a)(2)) or shooting at another person from a motor vehicle ( 12034, subd. (c)) that Rodriguez, Hernandez or Montes had aided and abetted, the special circumstances findings required the jury to conclude as to each defendant that he, and not simply the shooter, specifically intended to inflict death. (See CALJIC Nos. 8.80.1, 8.81.15.1, & 8.81.21.) The jury thus concluded that Rodriguez, Hernandez and Montes each had a state of mind equivalent to premeditation and deliberation.

Petznick, supra, 114 Cal.App.4th 663, upon which Rodriguez, Hernandez and Montes rely, does not compel a different result. In Petznick a single defendant was tried and convicted on charges of murder, burglary and robbery in concert, as well as conspiracy to commit murder, burglary and robbery; his three alleged coconspirators were tried separately. (Id. at p. 668.) The evidence at trial overwhelmingly established, and the jury found, the defendant and his confederates had conspired to commit robbery and burglary. (Id. at p. 682.) The robbery/burglary victim was killed during the crime. (Id. at p. 669.) As relevant to the case at bar, the issue on appeal in Petznick concerned the element of specific intent to kill for the charge of conspiracy to commit murder. The trial court initially instructed the jury, as did the trial court here, that to prove that crime, the People had to establish at least two of the persons to the agreement harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. (Id. at p. 678.) After an unreported sidebar conference with counsel, the court informed the jury the at least two wording was incorrect and reinstructed the jury that it needed to find each of the persons to the agreement harbored express malice aforethought . . . . (Id. at p. 679.) The trial court also instructed the jury in accordance with CALJIC No. 6.11 (conspiracy ‑‑ joint responsibility), A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a coconspirator to further the object of the conspiracy, even though that crime or act was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of the crime or act. (Petznick, at p. 679.)

During the third day of jury deliberations in Petznick, the jury sent the court a note asking if it was required for the crime of conspiracy to commit murder that all four conspirators harbored express malice aforethought, explaining that the question had been prompted by the language in CALJIC No. 6.11 that indicates that members of a conspiracy are liable for the natural and probable consequences of the act without all 4 participants having expressed malice aforethought. (Petznick, supra, 114 Cal.App.4th at p. 679.) The court wrote back, Does not require all four, and withdrew CALJIC No. 8.69 from the packet of jury instructions that been sent into the jury room and resubmitted the instruction with the at least two phrase the court had originally used. (Id. at pp. 679-680.) The jury returned its verdicts of guilty on all counts later that same day. (Petznick, at p. 680.)

The Court of Appeal held the courts response to the jurys question was incomplete, at best. (Petznick, supra, 114 Cal.App.4th at p. 680.) Since the jury was aware that there were four participants, the instruction erroneously permitted the jury to find defendant guilty of conspiracy to commit murder without regard to whether or not he personally intended to kill so long as they found that at least two of the other participants harbored that intent. [] . . . [T]he jury expressed confusion after they had heard argument and after they had been given all the instructions. The trial courts attempt to clarify the confusion misdirected the jury and there was no subsequent instruction that cured that misdirection. (Id. at p. 681.)

No similar misdirection occurred here. Unlike the jury in Petznick, the jury in this case was not instructed with that portion of CALJIC No. 6.11 regarding liability for the natural and probable consequences of crimes to further the object of the conspiracy[12]and did not specifically ask the court whether it was necessary for each member of a conspiracy to commit murder to have the specific intent to kill. In Petznick the trial courts answer to the jurys inquiry and its immediate re-substitution of the at least two instruction for the each of the persons instruction unquestionably communicated to the jury the erroneous legal standard a defendant (and there was only one defendant then on trial) who conspired to commit robbery was also liable for conspiracy to commit murder if the murder was the natural and probable consequence of the robbery even if he did not specifically intend to kill, provided at least two of his confederates did. In contrast, the at least two instruction in this case, viewed in context with the other conspiracy instructions given, did not convey an incorrect statement of the law. The jury was clearly and properly instructed it must consider the conspiracy charge separately as to each defendant and that for any defendant to be liable that defendant must have willfully, intentionally, and knowingly entered into an agreement with at least one other person with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act.

3. Continued Use of CALJIC Form Instructions Is Not Reversible Error

Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC pattern instructions for criminal trials and instead approved the new CALCRIM instructions as the official instructions for use in the state of California (Cal. Rules of Court, former rule 855(a), now rule 2.1050(a)), whose use was strongly encouraged. (Cal. Rules of Court, former rule 855(e), now rule 2.1050(e) [Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors. . . .]; see People v. Thomas (2007) 150 Cal.App.4th 461, 465.)

On January 12, 2006, at the outset of the retrial of this case, counsel for Hernandez requested the court use the new CALCRIM instructions. Correcting counsels assertion that use of the CALCRIM instructions was now required, the trial court denied the request to instruct the jury with CALCRIM, There is absolutely no requirement. There is a policy that encourages judges to give them. There is no mandate that they be given, and there is no mandate that CALJIC, all of a sudden, disappear from radar. [] The CALJIC instructions have withstood decades of interpretation by the state and federal courts, and they havent just disappeared from radar. CALCRIM is a remarkable body of work. I have indicated to counsel that those instructions are enlightening, but Im more comfortable in using CALJIC. Im not only more comfortable, but I have serious problem with CALCRIM instructions on aiding and abetting, and natural and probable consequences, and conspiracy, as they are phrased currently. [] So Ive indicated that I am prepared to give CALJIC, and certainly any judges obligation is to give a correct statement of the law to the jury, to instruct the jury appropriately, and legally and properly. CALJIC has not been found to be inappropriate, or illegal, or improper.

Citing several examples of what he contends are CALCRIMs superiority to CALJIC, without citing to any specific error in the CALJIC instructions actually given (other than the issue discussed in section 2, above), Hernandez argues the trial court erred in refusing his request to instruct the jury with the CALCRIM instructions. This argument, which is plainly at odds with the precatory language of former rule 855(e), was recently considered and rejected by our colleagues in Division Eight of this court in People v. Thomas, supra, 150 Cal.App.4th at pages 465 to 466, a decision with which we agree: The Judicial Councils adoption of the CALCRIM instructions did not render any of the CALJIC instructions invalid or outdated, as appellant claims. CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Councils adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. No statute, Rule of Court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions. [] Appellants attempts to show the superiority of two CALCRIM instructions to their CALJIC counterparts does not demonstrate that the CALJIC instructions the trial court used incorrectly stated the law, were hopelessly confusing to the jury, or were otherwise erroneous or inadequate. (Ibid.)

4. No Sua Sponte Limiting Instructions Regarding the Shooting at the White Honda Were Required

Labeling the testimony regarding his earlier shooting at the white Honda as evidence of a potential uncharged offense, Montes argues the trial court should have instructed the jury sua sponte in accordance with CALJIC No. 2.50 that evidence of uncharged crimes cannot be considered as evidence of bad character. As Montes concedes, the trial court is not obligated to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Milner (1988) 45 Cal.3d 227, 251-252; People v. Collie (1981) 30 Cal.3d 43, 63 (Collie); see People v. Carter (2003) 30 Cal.4th 1166, 1198.) Nonetheless, observing that the Supreme Court in Collie recognized a sua sponte limiting instruction may be required in an occasional extraordinary case if defense counsels silence jeopardizes a fair trial, Montes argues this is such a case. (Collie, at p. 64.)

Montess reliance on the narrow exception recognized in Collie is misplaced. The Collie Court emphasized the truly exceptional circumstances that must be present before such a sua sponte obligation could arise: Neither precedent nor policy favors a rule that would saddle the trial court with the duty either to interrupt the testimony sua sponte to admonish the jury whenever a witness implicates the defendant in another offense, or to review the entire record at trials end in search of such testimony. There may be an occasional extraordinary case in which unprotected evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsels inadvertence. But we hold in this case, and in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (Collie, supra, 30 Cal.3d at p. 64.) In stark contrast to the hypothetical extraordinary situation discussed in Collie, in the case at bar the incident with the white Honda, although in no way a dominant part of the evidence, was highly relevant to the issues of criminal knowledge and intent that were central to the case and, while highly probative, was not unduly prejudicial. The straightforward use of this circumstantial evidence presented none of the extreme risks of improper use of predisposition evidence that would warrant a departure from the general rule recognized in Collie. (See People v. Griggs (2003) 110 Cal.App.4th 1137, 1140 [no sua sponte limiting instruction required; evidence of prior felony convictions did not dominate the Peoples case and was substantially relevant to charges being tried].)

Montes also contends, without citation to authority, the trial court should have taken upon itself to instruct the jury regarding principles of self defense in connection with the Honda incident since his statement to the police suggested he fired at the vehicle only after its driver displayed a weapon. Although Montes might have been entitled to self defense instructions if he had been charged with assault (a proposition that, on this record, is by no means free from doubt),[13]there is no requirement the trial court instruct the jury regarding self defense as a prerequisite to its consideration of the uncharged assault as evidence of Montess knowledge and intent as it related to the Polanco murder. Indeed, there is no reason to believe the jury was not fully able to evaluate Montess apparent assertion the shooting was somehow justified when it considered the evidence before it.

5. The Trial Court Properly Excluded Evidence Montes Had No Prior Criminal Record

Montes also argues he was denied a fair trial by the trial courts exclusion of evidence he had not previously been convicted of a criminal offense, which purportedly demonstrated a character trait inconsistent with criminality from which the jury may have developed a reasonable doubt as to his guilt. Montes is correct a defendant may introduce opinion or reputation evidence o