P. v. Barajas

 

 

 

 

 

 

 

 

Filed 9/12/13  P. v. Barajas CA6

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,   v.   ULISIS BARAJAS,   Defendant and Appellant.

H037371      (Santa Clara County       Super. Ct. No. C1069517)

            A jury
convicted defendant Ulisis Barajas of second
degree murder and found true allegations that he (1) personally discharged
a firearm causing death (Pen. Code, § 12022.53, subd. (d)--consecutive
25-year-to-life sentence enhancement),href="#_ftn1" name="_ftnref1" title="">[1]
and (2) committed the murder for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)--consecutive
10-year sentence enhancement).  The trial
court sentenced defendant to 50 years to life (15 years to life for the murder
conviction plus the 25-year and 10-year enhancements).  On appeal, defendant contends that the trial
court (1) erred by overruling his objections to gang expert testimony, (2)
erroneously instructed the jury in the language of CALCRIM No. 3471
(sudden-escalation exception to self-defense), (3) erred by imposing the
10-year enhancement, and (4) erred by imposing href="http://www.fearnotlaw.com/">cruel and unusual punishment.  The People concede the enhancement issue and
we agree that the concession is appropriate. 
We otherwise reject defendant’s contentions.  We therefore modify and affirm the judgment.

background

            Defendant
was 16 years old and a Norteno gang member. 
While watching television with and at the home of Sarah Benevides, a
neighborhood friend and San Jose Grande gang member, he asked Benevides whether
there were any Sureno gang members at a party that was in progress in a home
across the street.  Benevides opined that
the partygoers were nongang affiliated. 
Later, Javier Tienda left the party to smoke a cigarette and drink a
beer outside on the driveway.  Defendant
then left Benevides’s home, crossed the street, and asked Tienda in gang slang
whether Tienda was related to a gang. 
Tienda replied negatively. 
Defendant then walked back across the street to Benevides’s home.  There, he encountered Eduardo Alvarez who
lived in Benevides’s home.  Alvarez asked
defendant about purchasing marijuana, and defendant affirmed that they could
purchase some at the corner.  The two
then proceeded to walk to the corner. 
Defendant, however, crossed the street and walked back to Tienda who had
been joined by his cousin Robert Betancourt. 
He asked Tienda whether Tienda was still looking at him.  Tienda replied that he was just smoking a
cigarette and not related to a gang. 
When defendant continued approaching, Betancourt remarked, “I guess we
are going to fight.  That’s what they
want.”  He told Tienda to take the “tall
guy” while he would take the “short guy.” 
By this time, Benevides was yelling “gang related stuff” from across the
street.  Defendant then came towards Tienda
and said “Norte” and something like “this is my neighborhood.”  Betancourt began arguing with defendant, and
Tienda began arguing with Alvarez. 
Defendant put his hand into his pocket and said, “I got something for
you,” and Betancourt put his hands in his pocket and said, “I got something for
you.”  The two got into fighting stances
while standing two to four feet apart. 
Tienda and Alvarez made clear to each other that they did not want to
fight.  Defendant then pulled out a gun
and shot Betancourt at least five times--twice in the chest, once in the back,
and twice in the buttocks.  Three shots
were potentially fatal.  Betancourt
collapsed and died.  Defendant fled.  The police found a closed Swiss Army knife in
Betancourt’s pants pocket.

            Defendant
relied on self-defense.  He argued to the
jury that he reasonably believed that he was in imminent danger of being killed
or suffering great bodily injury and “used no more force than was reasonably
necessary to defend against the danger.” 
He also urged that the crime was no more than voluntary manslaughter
because he (1) was provoked and acted in the heat of passion, or (2) acted in
imperfect self-defense.  As to imperfect
self-defense, defendant urged the following: 
“The other possibility is you get to voluntary manslaughter by what is
called imperfect self-defense.  The
killing of a person is reduced to voluntary manslaughter if the defendant
killed a person because he acted in imperfect self-defense.  If the defendant acted in complete
self-defense, his action was lawful and you must find him not guilty of any
crime.  But there’s a difference between
complete and imperfect, and here’s the difference. [¶] The defendant acted in
perfect self-defense if the defendant actually believed he was in imminent danger
of being killed or suffering great bodily based on eleven.  The defendant actually believed that the
immediate use of deadly force was necessary to defend against the danger, but
at least one of those beliefs was unreasonable. 
In evaluating the defendant’s beliefs consider all the circumstances
that were known and appeared to the defendant. [¶] Like I said, maybe in a
different part of town, maybe if it was one of us someplace in our
neighborhood, we would consider it unreasonable when somebody said they got
something in their pocket for you, and we wouldn’t take that as a threat of
imminent harm.  In that neighborhood at
that time of night with that situation I think that’s perfectly reasonable.  But one could argue you it wasn’t; that he
overreacted.  It was unreasonable for him
to believe that even though he did. 
That’s how one would get to voluntary manslaughter from perfect
self-defense. [¶] Now, the district attorney I’m sure is going to talk about
this.  A person who engages in mutual
combat who is the initial aggressor has a right to self-defense only if he
actually and in good faith tries to stop the fighting and indicates by word or
conduct to his opponent in a way that a reasonable person would understand that
he wants to stop fighting or that he has stopped fighting, and he gives the
opponent a chance to stop fighting.  I
will tell you that did not happen here. 
I will agree that did not happen. [¶] There’s more to that
instruction.  If you decide that the
defendant started the fight using non-deadly force, another fist fight, and the
opponent responded with such sudden and deadly force that the defendant could
not withdraw from the fight, then the defendant had the right to defend himself
with deadly force and is not required to stop fighting.  That threat to him was real.  That I’m going to my pocket and I got
something for you, he knew what that meant. 
He wasn’t going to wait around is it a gun, is it a knife, is it a
machete?  At that point he decided to
defend himself.  So whether he was in
mutual combat or whether he was the aggressor, he doesn’t have to stand there
and get shot or stabbed before he can do something.  That’s what that instruction tells you. [¶]
I’m sure the district attorney will also tell you that a person does not have
the right to self-defense if he or she provokes a fight or quarrel with the
intent to create an excuse to use force. 
What that really means you can’t intend to go out and kill someone.  You can’t intend to go out and shoot and stab
someone and pretend like you are not. 
You know, engage in a little fight, cause him to get mad at you.  Oh, he got mad at me.  I have to shoot him.  Again, that’s not what happened here.  The fact that he engaged Tienda and nothing
happened there.  It wasn’t until Mr.
Bettancourt [sic] decided to mutually
escalate this, that force came into play. [¶] The right to use force in
self-defense continues only as long as the danger exists or reasonably appears
to exist.  When the attacker withdraws
and no longer appears capable of inflicting an injury, then the right to use
force ends.  So, again, if this wasn’t
self-defense, if this was premeditated, he meant to do it or an intent to hurt
him, then he wouldn’t have withdrew.  He
withdrew as he was firing the gun and he ran down the street.  If that not [sic] what he meant, he would have walked over and pumped the rest
of the gun into him.  Clear as day.  If you really intended to do a murder, you
are going to do a murder.” 

            The
prosecutor replied that self-defense did not apply because defendant was the
aggressor and faced no immediate danger from Betancourt.  He added that there was no mutual combat
because no witness testified that Betancourt displayed a knife or advanced
toward defendant.

gang expert testimony

            During in
limine proceedings, defendant objected to a packet of material for a PowerPointhref="#_ftn2" name="_ftnref2" title="">[2]
presentation by the People’s gang expert for the purpose of proving the
street-gang allegation.  According to
defendant, (1) “much of the material that’s in this presentation is irrelevant.  Some of it is conclusionary”; (2) “And also
there’s hearsay and confrontation problems with this”; and (3) “Most of this
would be in many ways a well orchestrated propaganda piece to unduly influence
the minds of the jurors and to put them in a state of agitation where they
won’t be able to see clearly.”  Defendant
also urged that information in the PowerPoint about Benevides was unnecessary
because Benevides was no longer a defendant in the case and other evidence
would prove that she was a gang member and a relative of defendant.  The trial court took defendant’s request
under submission while it reviewed the PowerPoint presentation.

When the trial court revisited the
issue, defendant elaborated on his objection.

Defendant first argued that the
evidence “shouldn’t be coming in at all” because it violated his Sixth
Amendment right of confrontation as articulated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).  “Because we are
not going to have an officer who gets up here and brings in the gang members
who told him the information he’s showing to us.  He’s not going to get people involved in the
predicate crimes or the crimes he read about or the police reports he read
about to have their opinions and their statements tested under the crucible of
cross-examination.  He’s coming in with
some vague, I’ve talked to a lot gangs members, went through crime reports,
I’ve talked to a lot of police officers, I’ve been through a lot of training,
and based on that I can give you my opinion on this, this, and that.  Well, those items he’s basing it on, the
predicate offenses, the statements of other gangs [sic] members are all statement [sic]
made for the truth of the matter stated as evidence against my client and under
Crawford they should not be permitted
before the Court unless I’ve had the opportunity to confront them.”

The trial court overruled
defendant’s objection:  “[E]xpert
testimony may encompass the following, and is proper as it relates to gang
sociology and psychology and the expectations of gang members when confronted
with certain situations.  The necessity
to establish the existence, composition, culture, habits and activities of
street gangs, the defendant’s membership, gang rivalries[,] the motivation for
criminal behavior, retaliation, intimidation, and whether or not the defendant
committed the crime for the benefit of or to promote the gang.  The statements of the basis of the opinion of
the expert will not [be] received for the truth. [¶] . . .  [T]he Court will allow this testimony of the expert
regarding gang membership, validation, and the way crimes are committed and
whether this one was committed for the benefit for or to promote the gang.  Therefore, the request to exclude that
testimony is denied.”

Defendant next urged that “a lot of
material that the gang expert is going to present seems to be irrelevant.  It seems to be gilding the lily as they
say.  Both the slide show and the packet
of stuff he gave me has a litany of very serious offenses and sort of, what’s
the word I’m looking for, sort of heightened fearful images of gangsters and
gangs and what they do and how dangerous they are, and it talks about them in
generalities like they are all just one group. 
If you are a gangster, if you are a sub group, you all act this way and
they all do that and they all do this. [¶] And a lot of what is in this
presentation is irrelevant to [defendant]. 
There’s no evidence that he was involved in any of those acts that they
are going to bring in.  Drugs, running
women, running violent car jacks, violent robberies, and assaults of
people.  They are going to go on and on
and on and fill the jury’s mind these are also gang members and they are all
one group.  Like taking one race, one
religion or one ethic [sic] origin
and say these people are all like that. [¶] . . . [¶] . . . There are very few
slides except the slides around Page 20 that aren’t general Nortenos are a big
group, and they are all bad.  It isn’t
until 20 or 25 slide in that they actually talk about Sanders Street and East
San Jose and the gangs in that area and what the relevance is to this case, to
[defendant], and to this crime.  The
first 10 or 15 slides are all about the badness of this Norteno umbrella group.  And I think it is over the top.  I think there are gangsters who range all the
way from tagging crews to sophisticated extortionists and car jackers and
violent robbers.  But it runs the gamut.
[¶] And what this particular presentation does, it doesn’t give it any
credence, just says gangs are this violent, ugly group and they are all the
same.  There’s a picture in one of the
slides of an alleged gangster pointing his gun right at the person who is
looking at the picture.  It’s almost as
if he’s pointing the gun at you.  The
presentation is made to have a visceral effect on the jury, to get them scared
and not to give them information, but almost to overwhelm their intellectual,
academic thinking process and put them in an emotional fearful process. [¶] . .
. I think the gang expert could come in, talk about [defendant], talk about the
local street gangs in that area, talk about the association with those members
and get the same effect without this highly prejudicial emotional response to
the jury, oh, look at that gangster, they’re all bad gangs.  He’s a gang member. . . .  It’s not geared to inform.  It’s geared to influence our emotions, and I
would ask he be limited to what he can use and say and much of it--it’s a
PowerPoint presentation--be stricken, and I have individual slides I want to go
into.” 

Defendant then made specific
objections to most of the PowerPoint slides. 
After the People agreed to remove or redact certain slides and the trial
court ordered removal of certain slides, the trial court overruled defendant’s
objection.  It explained as follows:  “And according to case law, as I said
earlier, the expert can say all the things that are on the slides.  It’s just in this particular case the People
have added photographs to go with it, and they have photographs because [p]eople
are taking photographs of themselves with their gangs and using them.  Since the police can say all of this and I
don’t find that the pictures are prejudicial, they are just showing actual
people with the things they do, and in the poses that they take, and showing
off their tattoos.  They’re related to
Nortenos, which is the umbrella group to the gang that the defendant was
accused of being in, and that the opposing group, the Surenos, which I don’t
know if the victim was a member of Surenos, but the issue was surrounding
whether or not he was in the other group. 
So the photographs are relevant to the expert’s testimony, and will be
allowed, the ones that I have said can be used. 
I find that any prejudice issues is not outweighed by the probative
value.” 

San Jose Police Detective Michael
Wittingham testified as a criminal street
gang expert.  He opined that the
homicide and firearm allegation were committed for the benefit of and in
association with the criminal street gang known as Norteno with the intent to
further promote and assist the conduct by criminal street gang members.  He added that the basis of this opinion was
“when somebody yells norte they are going for the notoriety, they want the
respect.  So yelling norte prior to the
assault or going up to someone and saying do you bang, that is for the benefit
of the street gang.  By going up and
saying your gang’s name, I’m doing this for so and so, and it let’s everybody
know Norteno committed the assault, this was done for the benefit of
Nortenos.  The fact that we have a long
documented history for Sarah Benevides and we also have a documented history,
although not as long, for [defendant], the two of them together walk up to
together where [defendant]--  [Defense
objection.]  [¶] . . . [¶] In association
with, as I’ve gone over, if you have two people, using the hypothetical two
people, who go up to a victim together, say the words do you bang, norte, are
you a scrap, any of those challenging phrases, that is in association with the
gang.”  He further testified that a
criminal street gang was defined by section 186.22, subdivision (f), and is a
formal or informal group of “three or more people who have a common name, sign,
or symbol whose members have engaged in a pattern of criminal activity . . .
enumerated in the 186.22 section.”  He
described Benevides’s gang affiliation, moniker, tattoos, and associates as
well as her police encounters and those of her associates.  He opined about the general role of females
in gangs as being drug carriers, information conduits, and alibi
providers.  He related the history of the
Mexican Mafia and Nuestra Familia prison gangs and the characteristics of the
Sureno gang.  And he used the PowerPoint
presentation to illustrate his testimony.

During the testimony, defendant
repeated his objections from the in limine proceedings as follows:  “Now that we’ve actually seen part of the
presentation of the expert witness from the San Jose Police Department, I want
to just renew my objections.  I feel this
has gone far afield of what the expert has relied upon to make opinions and
become a lecture, almost a class for the jury. 
I feel this is over the top, prejudice from the mentioning of existing
cases that have nothing to do with my client, prior instances that we have no
documentation of that have nothing to do with my client.  Much more prejudicial than probative and
overbroad and is not designed to help the jury elicit information they are not
familiar with to make their decision.  I
think it’s more to influence the jury.” 

Confrontation
Objection

Defendant contends that admission
of Detective Wittingham’s opinion testimony--to the extent that it was based on
information obtained from (1) unnamed police officers who spoke with unnamed
gang members, and (2) lists of supposed gang members who supposedly associated
with defendant--violated his Sixth Amendment right to confrontation as defined
by the United States Supreme Court in Crawford.  We disagree.

Under Crawford, and the later decision of Davis
v. Washington (2006) 547 U.S. 813, the admission of testimonial
out-of-court statements is barred by the confrontation clause of the Sixth
Amendment unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.

            There is
nothing in Crawford or Davis that prohibits a gang expert from
relying on hearsay as a basis for his or her opinions.  (See, e.g., People v. Ramirez (2007)
153 Cal.App.4th 1422 (Ramirez); People v. Fulcher (2006) 136
Cal.App.4th 41, 56-57; People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).)  “The rule is long established in California
that experts may testify as to their opinions on relevant matters and, if
questioned, may relate the information and sources on which they relied in
forming those opinions.  Such sources may
include hearsay.”  (Thomas, supra, at p. 1209, citing People
v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd.
(b).)  Crawford does not undermine
this established rule.  (Thomas, supra, at p. 1210.)  Since a gang expert “is subject to
cross-examination about his or her opinions,” and “the materials on which the
expert bases his or her opinion are not elicited for the truth of their
contents” but rather “are examined to assess the weight of the expert’s
opinion,” this evidence does not offend the Sixth Amendment.  (Ibid.)  “Hearsay in support of expert opinion is
simply not the sort of testimonial hearsay the use of which Crawford
condemned.”  (Ramirez, supra, at p. 1427, citing Thomas, supra, at p. 1210.)  The confrontation clause “ ‘does not bar the
use of testimonial statements for purposes other than establishing the truth of
the matter asserted.’ ”  (Thomas, supra, at p. 1210, quoting Crawford, supra, 541 U.S. at p. 59.)

“Because an expert’s need to
consider extrajudicial matters, and a jury’s need for information sufficient to
evaluate an expert opinion, may conflict with an accused’s interest in avoiding
substantive use of unreliable hearsay, disputes in this area must generally be
left to the trial court’s sound judgment.” 
(People v. Montiel (1993) 5 Cal.4th 877, 919.)  The trial court may exclude from an expert’s
opinion testimony any hearsay matter if its probative value is outweighed by
its irrelevance, unreliability, or potential prejudice.  (People v. Catlin (2001) 26 Cal.4th
81, 137.)

We believe Ramirez and Thomas
are decided correctly.  There is no Sixth
Amendment violation.

Defendant asserts that the hearsay
on which Detective Wittingham relied were in fact offered for the truth of the
matters asserted.  Not so.

The trial court instructed the jury
that anything Detective Wittingham “is relaying to you that was told to him by
others is being received just to show the information that the officer has and
what he relied on in forming his opinions, but they are not to be accepted by
you for the truth of what was stated.” 
On another occasion during the testimony, the trial court admonished,
“Members of the jury, this is not being offered for the truth. . . .  It is only offered to show why the officer is
forming the opinion that he has and it’s the basis of the statements given to
you, but it is not for the truth of what was said to him.”  And the trial court also formally instructed
the jury in the language of CALCRIM No. 360 as follows:  “Experts testified that in reaching their
conclusions as an expert witness they considered statements made by
others.  You may consider those
statements only to evaluate the expert’s opinion.  Do not consider those statements as proof
that the information contained in the statement is true.”  These instructions adequately informed the
jury of the evidentiary limitations of the challenged testimony.href="#_ftn3" name="_ftnref3" title="">[3]

Objections
To Testimony

Defendant next contends that the
trial court erred by allowing Detective Wittingham to opine on defendant’s
specific intent (for the benefit of and in association with the criminal street
gang with the intent to further promote and assist) rather than give an opinion
in the form of a hypothetical question.

We agree with the People that
defendant has forfeited the issue by failing to make objection below on the
specific ground he states here.  (Evid.
Code, § 353; People v. Hood (1997) 53
Cal.App.4th 965, 970 [the defendant “asserted none of these [objections] below,
and, therefore, [forfeited] them”].)

It is true, as defendant urges,
that he voiced objections to Detective Wittingham’s testimony during the in
limine proceedings.  But it is also true
that he did not make then--or at the time of the testimony--objection on the
ground that Detective Wittingham was opining on an ultimate issue rather than
opining hypothetically.  Evidence Code
section 353 does not require any particular form of objection
or motion--only that the presentation contain a specific request to exclude
specific evidence on the specific legal ground urged on appeal.  (People v. Morris (1991) 53 Cal.3d
152, 188 (Morris).)  A motion in limine satisfies the requirements
of Evidence Code section 353 when it states the same specific legal ground
later raised on appeal, the motion is directed to a particular, identifiable
body of evidence and “the motion is made at a time before or during trial when
the trial judge can determine the evidentiary question in
its appropriate context.”  (Morris, supra,
at p. 190.)  If each of these
requirements is not satisfied, a contemporaneous objection
must be made to preserve the evidentiary issue for appeal.  (Ibid.)

Defendant next argues that the
trial court erred by allowing Detective Wittingham to give a hypothetical
opinion without an evidentiary basis.  He
refers to the testimony where Detective Wittingham began to infer that
defendant and Benevides walked up together and yelled “norte” before the
murder.

We again agree that defendant has
forfeited the point.  Defendant objected
to the trial testimony on the ground that Detective Wittingham was “in essence
summarizing conflicting testimony about what happened.”  But he made no objection on the ground that
the proffered opinion had no evidentiary basis. 
In any event, he fails to demonstrate any prejudice.  (People
v. Watson (1956) 46 Cal.2d 818, 836.) 
Defendant made his objection before Detective Wittingham finished his
answer.  In response to the objection,
the trial court admonished the jury that the facts forming the basis for the
opinion were not offered for the truth. 
Thereafter, as recounted above, Detective Wittingham finished his answer
in the form of a hypothetical without reference to Benevides.

Defendant also contends that
Detective Wittingham improperly opined on the definition of a criminal street
gang.  Again, defendant failed to object
to this testimony on the ground stated here. 
In any event, defendant fails to demonstrate prejudice because Detective
Wittingham made clear that the Penal Code defined the concept.  And the trial court later instructed the jury
on section 186.22 in the language of CALCRIM No. 1401.

Defendant next contends that the
trial court erred by overruling his objection on Evidence Code section 352
grounds to the evidence about Benevides and female gang members.href="#_ftn4" name="_ftnref4" title="">[4]

Under Evidence Code section 352,
“[t]he court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”

The admission of gang-affiliation
evidence over an Evidence Code section 352 objection is a matter within the
trial court’s sound discretion, and this decision will not be disturbed on
appeal unless the admission of the evidence exceeded the bounds of reason.  (People
v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)  “A decision will not be reversed merely
because reasonable people might disagree. 
‘An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’  [Citations.] 
In the absence of a clear showing that its decision was arbitrary or
irrational, a trial court should be presumed to have acted to achieve
legitimate objectives and, accordingly, its discretionary determinations ought
not be set aside on review.”  (>People v. Preyer (1985) 164 Cal.App.3d
568, 573-574.)  This rule requires that
the reviewing court engage in all intendments and presumptions in support of
the decision and consider the evidence in a light most favorable to the
prevailing party.  (People v. Condley (1977) 69 Cal.App.3d 999, 1015.)  It also requires that the party claiming
abuse of discretion affirmatively establish the point.  (Smith
v. Smith (1969) 1 Cal.App.3d 952, 958.)

There is no bright-line rule for
the admissibility of gang affiliation evidence; the question is usually
fact-specific and, as such, peculiarly one for the trial court’s
discretion.  Our task is simply to
determine whether the trial court could have rationally concluded that the
probative value of the evidence outweighed the prejudicial effect.

According to defendant, the
Benevides and female-gang evidence was irrelevant or had limited probative
value because (1) “Wittingham did not need to explain the basis of his opinion
that Benevides was a gang member by relating information about gang members
known to Benevides [because] Benevides’s gang affiliation was not in dispute,”
and (2) evidence about the general role of females in gangs “was not useful,”
had no tendency in reason to prove that Benevides was a gang member or
defendant committed the crime in association with Benevides, and was cumulative
to the evidence establishing that Benevides was a gang member.  Defendant urges that the evidence was more
prejudicial than probative because the evidence about gang members unrelated to
defendant or the charged offense would confuse the jury about the narrow role
the evidence should play in the trial and mislead the jury to use it for
broader, improper purposes.  He adds that
it was inflammatory because it portrayed the individuals as uniquely vulgar and
violent without evidence that defendant or Benevides engaged in the type of
behavior portrayed.

As is apparent, defendant
manifestly fails to carry his appellate burden. 
He merely reargues his position rather than focuses on the factors
supporting the trial court’s decision and explains why it was irrational to
rely on those factors.

In any event, it was not irrational
for the trial court to conclude that the Benevides and female-gang evidence had
substantial probative value.  Defendant
himself concedes that “Evidence that Benevides was a gang member was relevant
because it had a tendency to prove that, based on their friendship, [defendant]
was also gang affiliated.”  A prosecutor
is generally entitled to tell his or her story with the most persuasive and
forceful evidence.  (People v. Scheid (1997) 16 Cal.4th 1, 16-17.)  “ ‘Evidence that is identical in subject
matter to other evidence should not be excluded as “cumulative” when it has
greater evidentiary weight or probative value.’ ”  (People
v. McKinnon (2011) 52 Cal.4th 610, 669.)

Here, the trial court could have
rationally concluded that the evidence about Benevides’s gang associates had
greater evidentiary weight than the evidence highlighted by defendant, such as
Benevides’s undisputed gang affiliation, gang moniker, gang tattoos, and the
like.  It could also have rationally
concluded that the general female-gang evidence had probative value as expert
testimony about the “ ‘culture and habits’ ” of criminal street name="SR;5851">gangs.  (People v.
Killebrew (2002) 103 Cal.App.4th 644, 657, disapproved on another point in People
v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5.)href="#_ftn5" name="_ftnref5" title="">[5]

As to the prejudice prong, “ ‘The
prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.’  [Citations.] 
‘Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors.’ ”  (People
v. Zapien (1993) 4 Cal.4th 929, 958.) 
In other words, “Evidence Code section 352 is designed for situations in
which evidence of little evidentiary impact evokes an emotional
[prejudice].”  (People v. Olguin, supra,
31 Cal.App.4th at p. 1369.)

But whether evidence is so
outrageous so as to shock the emotions of a jury into using the evidence
improperly is a highly subjective determination.  In the ordinary case such as this one, the
question provokes a difference of opinion rather than exposes
irrationality.  Here, the trial court
could have rationally concluded that the Benevides and female-gang evidence had
enough probative value as to outweigh any emotional prejudice or that any
emotional prejudice from the evidence was negligible in light of the limiting
instructions given in the case.href="#_ftn6"
name="_ftnref6" title="">[6]

Defendant also complains about
Detective Wittingham’s testimony relating the history of the Mexican Mafia and
Nuestra Familia prison gangs and the characteristics of the Sureno gang.  We address the point in the context of
defendant’s specific objections to PowerPoint slides.

Objections
to PowerPoint Slides

Defendant complains on appeal about
the admission of the following PowerPoint slides over his Evidence Code section
352 objections.

Slide 1:  This slide superimposes on a San Jose Police
Department seal the date of the killing, the word “Homicide,” and “187
PC.”  Defendant urged that the slide
presented improper opinion evidence to the jury:  that the homicide was a murder as opposed to
manslaughter or justifiable homicide by reason of self defense.

Slide 3:  Defendant made no cognizable objection to
this slide (“I have no objection to 3 where they impart real
information”). 

Slide 4:  This slide is entitled “Criminal Activity”
and lists several criminal offenses such as “187 PC-Homicide,” “215
PC-Carjacking,” and “245 PC-ADW,” and has a photograph of firearms, drugs, and
money.  Defendant argued that he was not
involved in what the slide depicted and the intention of the evidence was to
scare the jury. 

Slide 5:  Defendant made no objection to this
slide. 

Slides 6-9:  Slide 6 is entitled “Violence” and lists
underneath the words “NECESSARY,” “Glamorized in gang life,”
“Acceptable/expected behavior in GANGS,” “Controls members/community,”
“Enhances a gangs reputation or ‘street credibility’ among gangsters, even
rivals,” and “Sense of fear among neighbors/community.”  Slide 7 is entitled “Weapons” and lists
underneath the words “NECESSARY,” “Protection from enemies or rival gang
members (Don’t want to be caught ‘slippin’),” “Enhances a gangs reputation,”
“Retaliation Missions,” and “ ‘Work’ (Crime) Missions.”  Defendant claimed that “this is not geared
towards imparting real information.  It’s
geared towards affecting their emotions.” 
Defendant made no objections to slides 8 and 9.

Slide 13:  This slide is entitled “Females in Gangs” and
lists underneath--along with four photographs of female gang members--the words
“Vital Role to the Gang,” “Drug ‘Mules,’ ” “Hold firearms,” “Communication
Network (Prison, County),” “Provide housing (Section 8),” “Provide Alibis,” and
“Frustrate Law Enforcement.”  Defendant
objected on the ground that there was no evidence that Benevides gave defendant
a gun and the evidence would allow the prosecutor to “make a back door
argument” that Benevides gave defendant a gun.

Slide 15:  This slide shows photographs of women, drugs,
weapons, money, and a man with a red bandanna and a Norte hat pointing a gun at
the viewer.  Defendant urged that
“There’s no way to connect him to any of these type of crimes unless you say
all gangsters do all these things all the time.” 

Slides 16-22 and 25:  Slides 16 through 22 depict images of Sureno
gang members, symbols, slogans, drawings, clothing, and photographs of tattooed
Sureno gang members using drugs and flashing gang signs.  One slide is entitled “Mexican Mafia” and
describes the group as “Predominant Prison Gang in California.”  Slide 25 is entitled “Nuestra Familia” and describes
how the gang “was originally formed for protection purposes from the Mexican
Mafia,” the hatred between the groups, and the struggle for power that evolved
in Nuestra Familia’s “participation in criminal activities in an effort to
control the introduction of contraband into the facilities.”  According to defendant, the trial court
should have sanitized and limited these slides because they “created a
narrative designed to incite the passions of the jury.”

Slide 24:  Defendant made no objection to this
slide. 

Slide 34:  This slide is entitled “Gang Members
Affiliating Photographs w/Handsigns” and is a photograph of Norteno gang
members, several of whom are displaying a middle finger that, defendant urged,
was not a gang sign. 

Slides 37-43, 44-58, 60-66,
68-77:  These slides depict what
defendant characterizes as “mug shot photographs” of him, Benevides, seven of
his gang associates, and 10 of Benevides’s gang associates.  They also show police identification
cards.  The “mug shot” and identification-card
slides have various case numbers displayed. 
One card records that defendant admitted being a Norteno gang
member.  One slide shows a contact report
and states that defendant was “arrested while affiliating with other Gang
members and displaying Gang Tattoos.” 
Another slide shows a “mug shot” of a gang member, denotes that he was
murdered, and shows a photograph of gang members at the gravesite.  Defendant argued that the slides not only
implied that he had a criminal record but also suggested that he had committed
serious offenses such as those listed in the earlier slides.  He also urged that the information about
Benevides and his and her associates was unnecessary and “leaves a false
impression . . . with the jurors” about “whether they are associates or not.”

On appeal, defendant also contends
that he received ineffective assistance of counsel because his trial counsel
failed to object to “well over 30” of the PowerPoint photographs for lack of
authentication. 

As noted in People v. Ruiz
(1998) 62 Cal.App.4th 234 (Ruiz),
“California courts have long recognized the potential prejudicial effect of
gang membership evidence.”  (Id.
at p. 239.)  “Due to its potential
prejudicial impact on a jury, our Supreme Court has condemned the introduction
of ‘evidence of gang membership if only tangentially relevant, given its highly
inflammatory impact.’ ”  (Id. at
p. 240, quoting from People v. Cox (1991) 53 Cal.3d 618, 660,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)  It should not be admitted if its only purpose
is to prove defendant’s criminal disposition or bad character in order to
create an inference defendant committed the charged offenses.  (Ruiz, supra, at p. 240; accord, Evid. Code, § 1101, subd.
(a).)

When gang evidence meets the test
of relevancy, however, it is admissible unless its prejudicial effect clearly
outweighs its probative value.  (People
v. Carter (2003) 30 Cal.4th 1166, 1194.)

The trial court properly admits
evidence pertaining to gangs and gang membership when the evidence is relevant
to a material issue at trial, such as “when the very reason for the crime is
gang related.”  (Ruiz, supra, 62 Cal.App.4th at p.
239.)

Defendant recognizes, as he must,
that gang evidence was admissible in this case to prove the gang enhancement.

We, nevertheless, are troubled by
the excessive volume of the gang evidence and its potential for prejudice.  Some of the gang evidence presented was
irrelevant, cumulative, and risked undue prejudice, as the trial court ruled in
some instances.  It
bears emphasizing the obvious that trial courts must be careful to use their
powers under Evidence
Code section 352 to limit gang evidence to its proper
purpose, for example, establishing the existence of a criminal street name="SR;19545">gang, and not to permit an overzealous prosecutor, through
the guise of establishing that fact, to seek to improperly imply to the jury
that, since the gang is violent, the defendant is
violent and therefore likely guilty of the charged crimes.

Might there have been gang evidence
admitted in the PowerPoint presentation which should have been excluded under
Evidence Code section 352 as lacking significant probative value, or as
redundant, or as unduly time consuming, or as more prejudicial than probative.  There might have been.  However, the erroneous admission of such
evidence in this instance does not require reversal of the judgment unless it
was reasonably probable that the defendant would have obtained a more favorable
result had there been no error.  (People
v. Earp (1999) 20 Cal.4th 826, 878.) 
Considering the overwhelming circumstances in this case, we are
confident that the PowerPoint slides, shown to the jury,
did not constitute prejudicial error. 
The potential prejudice of overzealous prosecution tactics actually was
rendered moot here by the strong evidence against defendant in the record.

The evidence of defendant’s guilt,
of his gang membership, and of the gang relatedness of the crimes was
overwhelming.  Defendant shot Betancourt
five times.  No one testified that
Betancourt displayed a knife.  Alvarez
testified that he saw Betancourt put his hands in his pockets and then take his
hands out of his pockets with nothing in his hands.  The police found Betancourt’s knife closed in
his pocket.  No reasonable jury would
believe that Betancourt provoked defendant so as to reduce the homicide from
murder to manslaughter or justify the homicide as committed in
self-defense.  Moreover, there was no
dispute that defendant and Benevides were gang members.  And Benevides testified that defendant asked
her whether any Southern California gang members were at the party across the
street.  Also, Tienda testified that (1)
Benevides was yelling “gang related stuff” when defendant came towards him and
Betancourt, and (2) defendant said “Norte” and “this is my neighborhood” when
defendant came towards him and Betancourt. 
More specifically, Alvarez testified that defendant challenged
Betancourt by saying, “This is Norte gang, mother fucker.”  Alvarez also testified that, after defendant
shot Betancourt, Benevides joined defendant at the scene and exclaimed, “That’s
what you get.”  There is no reasonable
probability that the jury would have returned a more favorable verdict as to
the gang enhancement had the trial court sustained defendant’s objections to name="SR;19084">the PowerPoint evidence. 
The same holds true had trial counsel made a successful objection to
PowerPoint evidence on the ground of lack of authentication.  (Strickland v. Washington (1984) 466
U.S. 668, 697; In re Jackson (1992) 3 Cal.4th 578, 604 [when an
ineffective assistance claim can be resolved solely on the absence of prejudice
there is no need to determine whether counsel’s alleged failings constituted
deficient performance].)

Nonetheless, defendant claims that
the admission of the gang evidence transgressed his due process href="http://www.mcmillanlaw.com/">right to a fair trial.  We disagree.

“The right to a fair trial is a
fundamental liberty secured by the Fourteenth Amendment.”  (Estelle v. Williams (1976) 425 U.S.
501, 503 (Estelle).)  The
presumption that a defendant is innocent until proven guilty “is a basic
component of a fair trial under our system of criminal justice.”  (Ibid.)  To assure the presumption of innocence
applies, “courts must be alert to factors that may undermine the fairness of
the factfinding process [and] must carefully guard against dilution of the
principle that guilt is to be established by probative evidence and beyond a
reasonable doubt.”  (Ibid.)

We realize there are courtroom
practices that are so detrimental to the presumption of innocence that they
violate a defendant’s due process rights. 
For example, compelling a defendant to appear at a jury trial in prison
clothing is improper.  (Estelle, supra, 425 U.S. at pp. 504-505.)  Unwarranted shackling or gagging of a
defendant during trial also is impermissible. 
(Illinois v. Allen (1970) 397 U.S. 337, 345.)  Use of an excessive number of security
personnel in a courtroom also can damage the presumption of innocence.  (Holbrook v. Flynn (1986) 475 U.S.
560, 567-568; Estelle, >supra, at p. 505.)

Although “certain courtroom
practices are so inherently prejudicial that they deprive the defendant of a
fair trial” (Carey v. Musladin (2006) 549 U.S. 70, 72), what happened in
defendant’s trial--either singularly or cumulatively--did not come close to
such a description.  Defendant was not
required to wear jail clothing, nor was he shackled or gagged during the trial.  The presumption of innocence was not
undercut.

Considered singularly or together,
we find that the gang evidence was not unduly suggestive of guilt.  Defendant’s claim to the contrary is based on
conjecture and underestimates the capability of jurors to follow the trial
court’s instructions.  Defendant’s trial
was not unfair.  The evidentiary rulings
he challenges concerned relevant evidence, unlike the situations in Illinois
v. Allen, supra, 397
U.S. 337; Estelle, supra,
425 U.S. 50l; and Coy v. Iowa (1988) 487 U.S. 1012.  “Lengthy criminal trials are rarely perfect .
. . .”  (People v. Hill (1998) 17
Cal.4th 800, 844.)

Defendant relies on >People v. Albarran (2007) 149
Cal.App.4th 214, but that case
is distinguishable.  There, the court
found it prejudicial error to admit extensive gang evidence in a murder
case.  It explained that the case
presented “one of those rare and unusual occasions where the admission of
evidence has violated federal due process and rendered the defendant’s trial
fundamentally unfair.”  (>Id. at p. 232.)  The unusual posture arose because the trial court
had granted defendant’s motion for a new trial as to a gang allegation for
insufficient evidence but denied the motion as to the substantive charge.  Under the circumstances, the court held that,
rather than showing motive and intent, the gang evidence served only to inflame
the jury and show defendant’s dangerous and criminal disposition.  (Id. at p. 230.)

Here the gang evidence was relevant
to establishing the gang enhancements. 
The evidence in support of the homicide and enhancements was ample, and
defendant does not challenge the sufficiency on appeal.href="#_ftn7" name="_ftnref7" title="">[7]

calcrim no. 3471

            The trial
court instructed the jury in the language of CALCRIM No. 3471 as follows:  “A person who engages in mutual combat or who
is the initial aggressor has a right to self-defense only if, one, he actually
and in good faith tries to stop fighting; and indicates by word or conduct to
his opponent in a way that a reasonable person would understand that he wants
to stop fighting and he has stopped fighting. 
And, three, he gives his opponent a chance to stop fighting.  If a person meets these requirements, he then
has a right to self-defense if the opponent continues to fight. [¶] A fight is
mutual combat when it began or continued by mutual consent or agreement.  That agreement may be expressly stated or
implied, and must occur before the claim to self-defense arose. [¶] >If you decide that the defendant started
fighting using non-deadly force and the opponent responded with such sudden and
deadly force that the defendant could not withdraw from the fight,> then the defendant had the right to defend
himself with deadly force and was not required to try to stop fighting.”  (Italics added.)

            Defendant
contends that the given instruction was erroneous because the italicized
language (the “sudden escalation exception”) “omitted the principle that mutual
combatants may avail themselves of the ‘sudden escalation exception’ to the
doctrine conditionally barring self-defense.” 
He notes that the current version of CALCRIM No. 3471 encompasses both
mutual combatants and initial aggressors for purposes of the “sudden escalation
exception.”href="#_ftn8" name="_ftnref8"
title="">[8]  According to defendant, “it was the defense
theory that [defendant] acted in self-defense only after Bettencourt [>sic] escalated the non lethal fist fight
to a deadly encounter through the threatened use of the knife in his
pocket.”  Defendant urges that, under the
given instruction, the jury would not have considered the “sudden escalation
exception” if it found that there was a mutual-combat scenario.

We disagree with defendant’s
analysis.

“We determine whether a jury instruction correctly states the law under
the independent or de novo standard of review. 
[Citation.]  Review of the
adequacy of instruction is based on whether the trial court ‘fully and fairly
instructed on the applicable law.’ 
[Citation.] . . . ‘Instructions should be interpreted, if possible, so
as to support the judgment rather than defeat it if they are reasonably
susceptible to such interpretation.’ ”  (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

In deciding whether instructional error occurred, we “assume that
jurors are intelligent persons and capable of understanding and correlating all
jury instructions which are given.”  (People
v. Mills (1991) 1 Cal.App.4th 898, 918.) 
In that context, we then “determine whether it is reasonably
likely the jurors understood the instruction[s] as [defendant] suggests.  [Citation.] 
In making that determination, we must consider several factors including
the language of the instruction[s] in question [citation], the record of the
trial [citation], and the arguments of counsel.”  (People
v. Nem (2003) 114 Cal.App.4th 160, 165.) 
Even if we conclude that “ ‘a jury instruction is ambiguous, we inquire
whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.’ ”  (>People v. Hernandez (2003) 111
Cal.App.4th 582, 589.)  Even if we
conclude that a jury instruction is erroneous, the error “requires reversal
only when it appears that the error was likely to have misled the jury.”  (People v. Owens (1994) 27 Cal.App.4th
1155, 1159.)

Here, the trial record, the
language of the instructions, and the closing arguments in this case show that
it is not reasonably likely that the jurors (1) understood CALCRIM No. 3471 in
the way defendant urges, or (2) were misled by an erroneous CALCRIM No. 3471.

            First, the
“sudden escalation exception” part of CALCRIM No. 3471 is, at worst,
ambiguous.  It states:  “If you decide that the defendant started
fighting using non deadly force . . . .” 
The phrase could refer to either (1) defendant’s level of force when a
reciprocal exchange of blows began (a mutual-combat scenario), (2) defendant’s
role as the one who started the fight (an initial-aggressor scenario), or (3)
both.

            Second, the
conditional self-defense bar about which CALCRIM No. 3471 instructs applies to
both mutual combatants and initial aggressors. 
The instruction begins:  “A person
who engages in mutual combat or who is the initial aggressor.”  Since the instruction as a whole applies to
both, it would be anomalous to understand the ambiguous “sudden escalation
exception” within the instruction as applying to initial aggressors only.

Third, defense counsel argued the
case as if the “sudden escalation exception” applied to both mutual combatants
and initial aggressors:  “So whether he
was in mutual combat or whether he was the aggressor, he doesn’t have to stand
there and get shot or stabbed before he can do something.”

            And fourth,
the jury likely never had occasion to understand the “sudden escalation
exception” in the way defendant urges. 
Defendant’s premise is based on the supposition that the jury could have
found a mutual-combat scenario.  But we
disagree that this is possible. 
Defendant sought out and engaged Betancourt.  No witness saw Betancourt make any
threatening move toward defendant or display any weapon.  At most, the two verbally threatened each
other (I’ve got something for you) while poised to fight (fighting
stances).  No reasonable juror would
conclude that this scenario is mutual combat. 
(People v. Ross (2007) 155 Cal.App.4th 1033 (Ross).)

In Ross, the defendant had been invited by a
friend to move into a trailer already occupied by the friend, his girlfriend,
her four young children, and her mother. 
The girlfriend was unhappy with the arrangement.  Her visiting friend, the victim, got into a
shouting match with the defendant and told him, “ ‘ “Fuck you.” ’ ”  (Ross, supra, 155 Cal.App.4th at p. 1037.)  The defendant told her to watch her language
around the children, and a heated exchange ensued, which lasted for several
minutes.  Ultimately, the defendant told
the victim, “ ‘ “You sound like an old whore” ’ ” or “ ‘a fucking whore.’ ”  (Id. at p. 1038.)  She slapped him and then hit him again.  He struck back, although the witnesses gave
different accounts of how hard and how many times the defendant struck the
victim.

On these facts, the court had
occasion to examine what mutual combat
means, particularly because the trial court refused the jury’s request for a
definition of the phrase.  We agree with
the court that “[l]ike many legal phrases, ‘mutual name="SR;3892">combat’ has a dangerously vivid quality.  The danger lies in the power of vivid
language to mask ambiguity and even inaccuracy. 
[Fn. omitted.]  Here the jury was
told that participation in ‘mutual combat’
conditionally bars the participants from pleading self-defense if either is
prosecuted for assaulting the other. 
[Fn. omitted.]  The ‘combat’
element of this rule is clear enough, at least for present purposes.  It suggests two (or more) persons fighting,
whether by fencing with swords, having a go at fisticuffs, slashing at one
another with switchblades, or facing off with six-guns on the dusty streets of
fabled Dodge City.  The trouble arises
from ‘mutual.’  When, for these purposes,
is combat ‘mutual’?  What distinguishes ‘name="SR;4015">mutual’ combat from combat in which
one of the participants retains an unconditional right of self-defense?”  (Ross, supra, 155 Cal.App.4th at pp. 1043-1044.)

            Culled from
a distinguished line of cases, the court held that “ ‘mutual
combat’ means not merely a reciprocal exchange of blows
but one pursuant to mutual intention, consent, or agreement preceding the initiation of
hostilities.”  (Ross, supra, 155 Cal.App.4th at p.
1045.)  One who voluntarily engages in name="SR;4093">mutual combat must attempt to withdraw
from it before he is justified in killing an adversary to save himself.  “Mutual name="SR;4114">combat,” as it relates to self-defense, is a fight “ ‘begun
or continued by mutual consent or agreement, express or implied.’ ” 
(Ibid.)

            name="citeas((Cite_as:_2013_WL_285580,_*7_(Cal">The court concluded, “We do
not believe any reasonable juror faced with this evidence could conclude beyond
a reasonable doubt that defendant and [the victim] at any time mutually agreed,
consented, arranged, or intended to fight one another.  Instead the evidence strongly suggests that
the parties exchanged contemptuous remarks until [the victim] lost her temper
and slapped defendant, whereupon he punched her back.  [Fn. omitted.]  This is not ‘mutual name="SR;4390">combat’ as that term has been explicated in California
precedents.  This does not mean that
defendant was legally entitled to punch [the victim].  That was and remains a legitimate question
for the jury.  But the answer must hinge
on whether defendant responded with reasonable force to avert a threat of
violence against his person.  There is no
adequate basis here for a finding that defendant was at any time engaged in name="SR;4465">mutual combat with [the victim].”  (Ross, supra, 155 Cal.App.4th at p. 1054.)

            The same
logic is more compelling in this case because there was no reciprocal exchange
of blows and, thus, no combat.

            Defendant
also contends that the given instruction was erroneous because the prefatory
language in the “sudden escalation exception” (“If you decide that the
defendant started fighting using non-deadly force”) “failed to convey to the
jury that the ‘sudden escalation exception’ applies to initial aggressors who
do not employ force before the need to defend arises.”  He argues that “a person need not use force
for the initial aggressor doctrine to apply.” 
He cites People v. Hecker
(1895) 109 Cal. 451, 463, for the proposition that a person can be an initial
aggressor simply by creating an appearance justifying another’s counterattack.

            We again
disagree with defendant’s analysis.

            An
aggressor is someone “who, through his own wrongful conduct (e.g., the
initiation of a physical assault or the commission of a felony), has created
circumstances under which his adversary’s attack or pursuit is legally
justified.”  (In re Christian S. (1994)
7 Cal.4th 768, 773, fn. 1.)  Thus, an
“aggressor” necessarily uses some form of force even in the “appearance”
scenario.  (§ 240 [“An assault
is an unlawful attempt, name="citeas((Cite_as:_80_Cal.Rptr._710,_*716)">coupled with a present
ability, to commit a violent injury on the person of another.”]; >People v. Bradbury (1907) 151 Cal. 675,
676-677 [“ ‘The “violent injury” here mentioned is not synonymous with “bodily
harm,” but includes any wrongful act committed by means of physical force
against the person of another, even although only the feelings of such person
are injured by the act.  The term
“violence” as used here is synonymous with “physical force,” and in relation to
assaults the two terms are used interchangeably. . . .  “The kind of physical force is immaterial.” ’
”]; People v. Flummerfelt (1957)
153  Cal.App.2d 104, 106 [“The terms
‘violence’ and ‘force’ are synonymous when used in relation to assault.”]; People
v. Lipscomb (1993) 17 Cal.App.4th 564, 570 [a person who creates an
appearance justifying a counterattack commits an assault]; see >People v. Ausbie (2004) 123 Cal.App.4th
855, 860, fn. 2 [“The degree of force necessary for a simple assault is
identical to that needed for a simple battery.”], disapproved on other grounds
in People v. Reed (2006) 38 Cal.4th 1224, 1228 and in >People v. Santana (2013) 56 Cal.4th 999,
1011.)  In short, defendant’s concept of
a nonforcible aggressor is anomalous.

The instruction was not erroneous.

TEN-year sentence enhancement

As we have stated, the trial court
sentenced defendant to 15 years to life for the murder conviction, enhanced by
25 years to life for the firearm allegation finding and 10 years for the gang
allegation finding.

            Defendant
contends that the 10-year gang enhancement was imposed in error and must be
stricken.  The People properly concede
the error.

Section 186.22, subdivision (b),
establishes alternative methods for punishing felons whose crimes were
committed for the benefit of a criminal street gang.  Section 186.22, subdivision (b)(1)(C) imposes
a 10-year enhancement when the felony is a violent felony, as defined by
section 667.5, subdivision (c).  That
provision imposing a 10-year enhancement, however, does not apply where the
violent felony is “punishable by imprisonment in the state prison for
life.”  (§ 186.22, subd. (b)(5).)  In that situation, section 186.22,
subdivision (b)(5), applies and imposes a minimum term of 15 years before the
defendant may be considered for parole.

            name="sp_999_9">name="citeas((Cite_as:_2012_WL_6101904,_*9_(Ca">In People
v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the
defendant was convicted of first degree murder, and the jury found true both
gang and personal use of firearm allegations. 
The trial court sentenced defendant to 25 years to life for murder, 25
years to life for the firearm allegation, and 10 years for the gang
allegation.  (Id.
at p. 1005.)  On appeal, the defendant
contended that the 10-year enhancement must be stricken because of section
186.22, subdivision (b)(5); he argued that under the plain language of the
statute the sentence for first degree