P. v. Botello

















Filed 3/5/13 P. v. Botello CA1/2

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOSEPH BOTELLO, JR., Defendant and Appellant.

A128822 (Contra Costa County Super. Ct. No. 05-0807883)

Patrick
Joseph Botello, Jr. appeals from his conviction, following a jury trial, for href="http://www.fearnotlaw.com/">second degree murder, attempted murder,
discharging a firearm at an inhabited dwelling, and active participation in a
criminal street gang—including true findings on various sentencing
allegations for gang involvement and firearm use and discharge.

Botello
challenges his convictions, alleging various instructional errors; abuse of the
trial court’s discretion in allowing a gang expert to briefly describe a prior
“bad act”; insufficiency of the evidence in support of the gang involvement
allegations; insufficiency of the evidence in support of one of the firearm use
and discharge allegations; and ineffective assistance of counsel.

Botello
also challenges his sentence, contending that a 10-year consecutive term for the
gang involvement allegation was invalid; that the fines imposed for restitution
and parole revocation restitution exceeded the statutory maximum allowed; and
that the trial court failed, as required by statute, to determine his ability
to pay before imposing a probation report fee.

We
conclude that Botello’s assertions of error during trial are without merit,
except for two instructional errors which were not prejudicial. Accordingly, we affirm Botello’s convictions
and the true findings on the sentencing allegations.

All
of Botello’s challenges to his sentence have merit and, with the exception of
the challenge to the probation report fee, are unopposed by the People. We reverse Botello’s sentence and remand to
the trial court for a resentencing hearing.

>BACKGROUND

I. Procedural Background

On
July 1, 2008, the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Contra Costa
County Grand Jury returned an indictment accusing Botello and Robert Miles
of crimes arising from three separate incidents. With respect to an incident on August 1,
2007, the grand jury accused Botello and Miles of the murder of Dominic Porter,
in violation of Penal Codehref="#_ftn1"
name="_ftnref1" title="">[1] section 187
(count 1); of the deliberate and premeditated attempted murder of Marquez
Pierce, in violation of sections 187, subdivision (a), and 664,
subdivision (a) (count 2); of discharging a firearm at an inhabited dwelling,
in violation of section 246 (count 3); and of active participation in a
criminal street gang, in violation of section 186.22, subdivision (a)
(count 4). Counts 1 through 3 were
accompanied by gang allegations (§ 186.22, subd. (b)(1)) and various
firearm use and discharge allegations (§ 12022.53, subds. (b)-(d), (e)(1)). In addition, Miles alone was charged with possession of ammunition by a convicted person, a
violation of section 12316, subdivision (b)(1) (count 11).

Botello
and Miles pled not guilty to the charges and denied the sentencing
allegations. Before trial, the court
severed the charges according to the separate incidents and ordered that the
trial on the charges arising from the August 1 incident take place first. For the trial, count 11 was renumbered count
5.

The
case came to trial before a jury on February
3, 2010. The jury began
deliberation on March 16, 2010,
in the afternoon, deliberating the rest of that day and on March 18, 19, 22, 23
and 24, returning verdicts late in the morning of the 24th. Botello was convicted on all four counts,
with the jury finding true all sentencing allegations, except for the
allegation that the attempted murder was deliberate and premeditated. Miles was convicted on count 5, for
possession of ammunition, but was acquitted on all other counts.

On
June 4, 2010, the court
sentenced Botello to a total term of 50 years to life as follows: (1) 15 years to life for the murder; (2) a
consecutive sentence of 25 years for personally using a firearm and causing
death (§ 12022.53, subd. (d)); and (3) a consecutive sentence of 10 years
for the street gang allegation (§ 186.22, subd. (b)(1)). The court imposed
concurrent sentences for the attempted murder and sentencing enhancements: (1) 9 years for the attempted murder; (2) 25
years for personally using a firearm and causing great bodily injury; and (3)
10 years for the street gang allegation.
Sentences for the other three sentencing allegations related to the
murder and attempted murder convictions were stayed. Sentences for shooting at an inhabited
dwelling and active participation in a criminal street gang (counts 3 and 4)
were imposed, but were stayed under section 654.

Among
other fines and fees, the court imposed a restitution fine of $100,000 and
suspended a parole revocation restitution fine in the same amount.

Botello
filed a timely notice of appeal.

II. Gang Background

The
People’s gang expert, Sergeant Jeff Palmieri of the San Pablo Police
Department, testified that the Norteño gang is associated with “Nuestra
Familia”—an organized crime syndicate within the prison system. Norteños frequently wear red colored
clothing, including San Francisco
49er football jerseys. Norteños also
employ the number 14 as an identifier, because “N” is the 14th letter of the
alphabet. The primary activities of the
Norteños include the sale of narcotics, possession of firearms, and assaults
with firearms.

The
Norteños are at war with the Sureños, a rival gang, whose color is blue. Norteños refer to Sureños as “scraps” and,
when writing, often strike through the letter “s” as a sign of disrespect to
Sureños.

>III.
The Events at the Zoe Court Party

A birthday party for Michael
Polries and a going-away party for Ross Batchelder (Ross), who was being
deployed in the military, was held at the residence of Lamar James (Lamar) and
his father, at 274 Zoe Court in Pinole, California, on the night of July 31,
2007, and the early morning of August 1.
Zoe Court, a
dead-end street, runs on a downhill slope to Orleans
Drive, the only street with which it
intersects. The house at 274
Zoe Court is approximately in the middle of the block. The number of people attending was variously
estimated by attendees as more than 20 and approximately 32.

Several
people from Vacaville attended the
party, including Lamar’s brother, Ladarian James (Ladarian); Terrie
Cofield; Cofield’s cousin, Dominic
Porter, the victim of the murder count; and Marquez Pierce, the victim of the
attempted murder count. Also attending
were people from other towns and cities, including Polries’s cousins Joey
Bonnett (Bonnett) and Raymond Villarreal; Villareal’s friend, Andrew Apodaca;
and Ross’s sister, Olivia Batchelder (Olivia).


Kenneth
Salguera drove to the party, bringing Miles, Harold Arrolinga, and two other
people.

Jessie
Mae Armas testified that she dropped Olivia off at the party before proceeding
to a park. She had four people with her
in the car: Analee Cooper, Thomas Burk,
Botello, and Juan Carlos de los Santos
(Santos). At trial, Burk denied being at the
party.

Armas
testified that Botello called Olivia and asked if he and the others with Armas
could go to the party. Armas believed
that Olivia did not want them to come.
However, Botello said it was okay to go and Armas drove them all to the
party.

Polries
testified at trial to having little memory of the party because he was drunk,
but in an interview with police that was played for the jury, Polries said that
a fat guy with long hair showed up at the party. After saying that he didn’t know the person’s
name and could be killed for saying it, Polries said he was “J.B.” and
identified the person as Botello in a photo lineup. He knew Botello was Norteño because Botello
didn’t hide it and commonly wore red.
When Olivia told Polries that Botello was on the phone and wanted to
come, Polries said he didn’t want him there.
Olivia said okay, but five minutes later Botello was at the party.

A. What Botello Wore

Cofield
said that Botello was wearing a red football jersey. On cross examination, she said it had some
red in it, but she wasn’t sure how much of it was red. She believed he also wore a red hat, but was
not sure.

Villarreal
said Botello wore a white baseball jersey.
Bonnett, Salguera, and Cooper could not remember what Botello wore.

Pierce
testified that he saw no one wearing red, but in a prior statement to police
had described a person, who seemed to be reaching for a gun, as wearing a white
jersey with red lettering and numbering.


B. Botello’s Argument in the Backyard

Botello
had an argument with an African-American male at the party. Salguera described the argument in greatest
detail. A slim, young African-American
man walked between Salguera and Botello, bumping both of them, while they were
in the backyard. The man put his hand on
Salguera to give himself extra room, a gesture that did not strike Salguera as
rude, but Botello told the man to mind his manners. The man “took it like, what—what the hell you
talking about.” He and Botello stared at
each other and Botello wanted an apology, challenging the man to a fight when
one was not offered. The man did not
want to fight Botello and said, “People don’t fight with hands no more. We fight with guns.” Botello replied, “I don’t need a gun to beat
your ass.” Salguera said that at this
point, a small African-American girl became involved, arguing with another
girl. The African-American girl told
everybody, “You guys need to leave, get out of my house.”

Cofield
identified the man with whom Botello argued as her friend Ladarian, but she did
not see the argument’s beginning. She
said that Botello and Ladarian were arguing about somebody bumping into
somebody and not saying excuse me.
Cofield told Botello to leave.

Cooper
testified that she was in the bathroom with Olivia when the argument began and
that both of them were drunk. She said
that, when she came out, Botello was arguing with African-Americans, possibly
including a female, whom she did not know.
Cooper was not sure what was said, but thought that somebody had bumped
into someone else.

Armas
said that the argument occurred after Botello and “some black guy” bumped into
each other. Botello said that he could
fight the man one-on-one and one of the African-Americans mentioned guns.

Pierce
did not testify to the argument between African-Americans and Botello, but had
told a police officer that he saw an argument outside about 20 minutes before
the shooting. He said that a group of
Hispanics was arguing with someone at the party, but he did not know who, and
that this argument broke up without violence.


In
an interview with police that was played to the jury, Apodaca told of a quarrel
between “two black guys and a Mexican guy.”
After first saying that he didn’t know the man’s name, Apodaca
identified him as Botello, whom he described as five-five or five-six and about
200 pounds. Botello and the African-American
males were about to fight and one of the African-American males “was like oh,
people don’t fight no more. . . .” They were talking about going to get guns. Botello “was like all right, bring your
things. He was like I got something for
you too. He was like I’ll be
here. . . .”

In
his interview with police, Polries said that Botello was arguing with an
African-American male at the back door.
Botello was cursing and screaming because an African-American male had
touched shoulders with him. The
African-American male was apologizing; Polries and several others were telling
Botello to leave. Botello said okay, he
didn’t have a gun, and he just wanted to talk to the other person.

C. African-American Men Leave and the Argument Continues

According
to Salguera, the African-American left with other African-American men and said
he would be back. Two females, one of
whom was the African-American who had told everyone to leave, were arguing in
front of the house, the argument having moved there.

Cofield
said that Porter and Ladarian left the party, but she did not see how and was
not paying attention to cars coming and going.
She was not sure if Pierce left with them. A girl, who looked Hispanic and had been
standing next to Botello, began arguing with her. The argument moved to the area in front of
the house as the people inside went outside toward the front.

Cooper
said that the African-American men with whom Botello had been arguing left in a
car, though on cross-examination she indicated that she did not see them get
into a car. She went to the front yard
and a number of people were there, including Botello, Olivia, Bonnett, Apodaca,
and Salguera. She saw Armas arguing with
a group of females, some of whom were African-American.

Armas
testified that she argued with “a young black girl” for a few minutes in the
driveway in front of the house. She
claimed not to remember what the argument was about and did not know where
Botello was at the time.

Bonnett
became aware of an argument involving Botello, African-Americans, Olivia, and
other girls when he was in the backyard.
Olivia was arguing with an African-American girl who was “telling us we
had to go.” Olivia was trying to tell
her “it was all good.” Bonnett told
Olivia, Apodaca, and Villarreal that they should leave. When he went to the front yard, there was no
physical argument, but African-American girls were yelling for everyone to
leave, and everyone seemed to be leaving.


Villarreal
remembered an argument during which an African-American girl was yelling. As she was telling Botello to leave,
Villarreal decided he should leave as well.
Villarreal woke up Apodaca, who had passed out in the backyard, and
walked with him into the front yard, where there was no physical fighting, only
yelling and arguing. Apodaca testified
similarly.

In
his interview with police, Polries said that somehow the argument got to the
front yard after Polries thought “they” had gone. As Polries was in the backyard, someone told
him of an argument in the middle of the street.
Polries walked out to look and saw people against the garage and people
in front of the house arguing with Botello.
Nearly the entire party was there.
Botello was standing in the street near the driveway and/or on the
sidewalk in front of the house. The
girls with Botello were cursing at other girls.
Botello and a “fat friend” were cursing, trying to take on the whole
party.

D. The African-American Men Return and One Threatens Botello with a Gun

Salguera
testified that the African-American males returned in a car while he, Miles,
and two others were walking towards Salguera’s truck. Salguera saw the car pulling up, but did not
pay attention to the people who got out.
He did not see Botello involved in a conflict in front of the
house.

Cofield
said that Ladarian and Porter walked back into the house when they returned to
the party. Then they went outside, and
Porter was standing with Cofield as she continued to argue. She saw no one holding a gun and heard no one
threaten Botello.

Cooper
said that as she was standing in front of the house, a big, older, four-door
car stopped in the middle of the street and three or four African-American men
jumped out. The car then drove to the
end of the street and turned around. One
of the men who jumped out ran up to Botello, put a gun to his head, and told
him to “get the F out of here.” Botello
was just standing there. Olivia ran up
the street to the gunman, shoved him in the chest, and screamed at him. Cooper tried to restrain Olivia. People were running all over the yard. Olivia chased after the gunman as he went
toward the house and Ross grabbed her.
Cooper did not know what the gunman did with the gun and she didn’t pay
attention after he ran away.

Armas
said that an Oldsmobile rolled up, and the doors opened. Although Armas saw no guns, the men in the
car, whom she did not know, implied that they were armed by holding their hands
at their waists, saying “What you gonna do?”
Armas agreed with defense counsel’s suggestions that the
African-American males were “going up to” Botello, that they “actually got in
Joey’s face,” as they previously had done inside the house, and that they had
“their hands under their shirt.”

Bonnett
testified that an old four-door car like a Chrysler or Oldsmobile drove up and
stopped in the middle of the street as Bonnett was on the sidewalk in front of
the house. African-American males in
their early twenties jumped out of the car.
One approached Botello and pointed a gun at him from no more than five
feet away. Botello, who was across the
street from the house and on the other side of the car, held up his hands and
backed away. Words were exchanged, but
Bonnett did not know what was said.
However, Bonnett had told the grand jury that the African-Americans
screamed something like, “What now?” when they put a gun to Botello’s head After the exchange of words, the gun pointed
at Botello was lowered. Bonnett tried to
round up his friends and leave. He
testified that he did not remember anyone approaching the gunman, but he had
told the grand jury that Olivia was in the street, trying to break up the fight
and calm things down. He also told the
grand jury that the African-American males started to walk toward the house
after the confrontation with Botello.
They were walking away from Botello before Bonnett heard gunshots.

Villarreal
said that an older, box-like car pulled up, and two or three African-American
males jumped out. One or two of them
waved a gun or guns and said, “You guys got to get up out of here.” Botello was in the front yard.

Apodaca
stated that an older car drove up and stopped in the middle of the street. Four or five people were in the car and
African-American guys jumped out.
Apodaca saw at least one gun and the men approached Botello with the gun
as he was walking away, across the street from the house. Apodaca started to leave when he saw the gun,
walking past the African-American men.

In
his interview with police, Polries said that Botello lifted his shirt and said
multiple times that he didn’t have a gun when the gun was pointed at him.

E. Gunfire

Pierce
denied leaving the party or seeing the Oldsmobile belonging to one of his
friends do so. The car was parked a
couple of houses away where the court began to turn around and Pierce went to
stand next to it. Cofield was sitting on
the front lawn and he did not see her talking to anyone. A group of people were there and another
group was down the street, toward the cross street. Pierce and Cofield started going back into
the house and he was shot at the doorstep.
He did not see a firearm and did not know who shot him. No one yelled anything and he heard no angry
words. Pierce said that he wouldn’t say
who shot him even if he knew. He told
the police he was shot by mistake and that it didn’t have anything to do with
him.

In
contrast to his testimony at trial, Pierce’s earlier statement to the police
was more detailed. He said that the same
group of male Hispanics who had argued with someone earlier was coming up the
street from Orleans Drive. One looked as if he was reaching for a gun
near his waist. He was about five feet,
seven inches tall, weighed 200 pounds, had a heavy build and black slicked-back
hair, and was wearing a white Joe Montana jersey, number 16,href="#_ftn2" name="_ftnref2" title="">[2] with the number
and lettering in red. A second man, who
might also have been reaching for a gun at his waist, was five feet, six inches
tall, weighed 200 pounds, had shorter slicked back black hair, and was wearing
a white T-shirt.href="#_ftn3" name="_ftnref3"
title="">[3] Pierce said he did not see a gun and was in
the doorway of the house when he was shot.


Cofield
testified that as she and Porter were about to walk back to the house, Botello
and the people in the middle of the street began walking down the hill towards
Orleans Drive. Turning toward the
street, Cofield saw Botello reaching into the waist area of his pants. Botello was near the driveway, in the street
behind a truck. His shirt came up, but
she did not see a gun. Cofield was in
the driveway near the walkway to the front door. She had already started to
move away from there when many shots were fired, and everybody ran. She ran inside through the front door and
went to a back part of the house. After
someone told her that Porter had been shot, she went to the living room and saw
him lying motionless on the floor, shot in the back of the head. She ran to the side of the house and found a
gun on the ground next to the house and near the side gate. She did not know where the gun came from or
who owned it. She threw it into a blue
trash container next to the house.

Cooper
was standing about five feet from Botello after the gunman had threatened
him. Olivia had chased the gunman toward
the house and Ross had grabbed Olivia
Cooper turned and saw a man coming up the sidewalk from Orleans Drive to
the corner of the yard. The man was
wearing a black hoodie, and “crouching, creeping up.” Although she told the police he was white,
she testified that she could not tell what race he was. The man was facing the house and Cooper saw
one flash or something from the area where the man was coming up the
street. It was hard for her to tell if a
gunshot corresponded to the flash. She
was unsure what Botello did because her back was to him. Before the flash, he was near her, on the
sidewalk behind her, and not near the driveway when shots were fired. She did not see him shoot and never saw him
with a gun. She did not know Miles and
did not see him that night. Cooper heard
a few more shots, ran, and hid behind a car across the street from the
house. Santos was behind the same car as
she. She did not see anyone get shot and
did not think the African-American who had threatened Botello shot at him,
though she could not be sure. After the
gunfire stopped, she ran to Armas’s car and jumped into the back seat. Santos got in the car as well and Botello
came running to the car and got in the front seat. Armas, with her passengers, left
immediately.

Armas
testified that she was standing at the left rear bumper of her car when she saw
a flash and heard multiple gunshots.
Botello and Cooper were in front of her car, across the street from the
house. After testifying that the flash
came from where Botello was standing, Armas agreed with defense counsel’s
suggestion that she was not sure from which direction the flash came. It sounded as if guns were fired from two
different places—one from up the hill toward the end of the court and one from
down the hill. The gunfire from the
court was from where the Oldsmobile was parked, up the street. It seemed as if the gunfire was from people
shooting at each other. Armas ducked
where she was standing, behind her car.
She did not see Botello with a gun.
After the shots were fired, Armas was the first to get into her
car. All four passengers who had come
with her to the party—Botello, Burk, Cooper, and Santos—also got in. It took less than three or four minutes and
she drove away fast. Armas was impeached
with a statement she gave to the police on August 23. In the statement, she mentioned a gray or
silver car coming to the scene shortly before the shooting but didn’t say
anything about gunshots coming from the car.


Bonnett
heard five or six gunshots, or more, about five seconds after he started to
walk away toward the cross street. He
was in front of the group he was with—Olivia, Ross, Apodaca, and
Villarreal. All of them ran when shots
were fired. The gunshots came from
behind Bonnett, and he did not turn to see.
He heard two different sounds, but did not know where the shots came
from. He did not see Botello with a gun
that night.

Villarreal
estimated that 30 seconds to one minute passed from the time the car pulled up
in front of the house to the time that he heard a couple of gunshots. They came from behind him as he was walking
away from the house toward his vehicle with Apodaca. Villarreal was across the street just getting
ready to go down the hill to his truck when he heard the gunshots. Villarreal started to run when he heard the
gunshots and, drunk, he tripped and fell.
He lay on the ground briefly, then rose and kept running after the
gunfire stopped. He got in the driver’s
side while Apodaca and Olivia got in the other side.

Apodaca
heard five or six gunshots coming from behind him as he walked down the street
and was just about at Villarreal’s truck on the corner. Apodaca ran to the truck and Villarreal was
behind him. He did not see who fired. Apodaca testified that he did not see Botello
with a gun, even though he had told the police that Botello had a gun. After testifying that he did not remember
telling the police that Botello had a gun, he said it was because the police
harassed him.

In
his interview with police, Apodaca said that after the African-American men
returned, the “Mexican guy,” whom he identified later in the interview as
Botello, was holding a gun that was “like a nine or 45.” He said that both the African-American man
and the Hispanic guy had guns. Earlier
in his statement, Apodaca said the “dude” pulled out a gun and said, “that’s
disrespectful ass shit” after the African-American men jumped out of the
car. Apparently continuing to refer to
the “dude” who pulled out a gun, Apodaca next said: “And then . . . he . . .
ran to . . . the car, was it a car or around . . . the
corner? I don’t know. This one dude ran and . . . he had
come back and then he was just talking to him and then I was like man, they’re
about to start fighting.” Apodaca also
said that the Hispanic man holding the gun “came from . . . nowhere.”


In
the interview, Apodaca said Botello was standing in the street by himself. Botello was holding a gun in his right hand,
pointed down. The African-American males
were near the house, about 20 feet from Botello. Apodaca did not see Botello point the gun at
the house, nor did he see him shoot.
After the interview, Apodaca identified Botello from a six-person photo
lineup.

Olivia
testified that she did not see a gun that night and did not see anyone point a
gun at Botello. Her testimony was
impeached with the videotape of an interview with the police conducted the
morning of August 1. In the interview,
Olivia said a chunky guy, whom she knew as JB, had a gun. He pointed the gun at the house, but she did
not know if he fired it. After her interview,
Olivia was shown a six-person photo lineup and she identified Botello as the
person she saw standing in the street holding a gun pointed at 274 Zoe
Court.

Salguera
testified that he had parked his pickup truck on the corner of Orleans Drive. He heard about eight gunshots when he was at
the corner, walking back to his truck with Miles, who was five feet from
him. Salguera and Miles got in the truck
when the shooting started and left.
Salguera did not see the shooting and Miles did not go to the truck
before the shooting. Salguera did not
see Miles talking to Botello immediately before the gunshots. He did not see Miles walk back toward the
house or see him with a gun. He did not
see where Botello was at the time of the shooting. Botello did not come to Salguera’s truck and
Salguera did not see Botello running anywhere.


Salguera
was impeached with his grand jury testimony.
Before the grand jury, Salguera said that Botello came down the hill,
short of Salguera’s vehicle, and started speaking to Miles. Botello and Miles then went back up the hill
towards the house. Salguera also told
the grand jury that Miles ran down the hill, apparently holding a gun, and got
into Salguera’s truck, though he did not see where Miles was when the shots were
fired.

Salguera
was also impeached with his interview with the police that was played to the
jury. In that interview, Salguera said
that he was getting into his truck as Botello ran down the hill, called to
Miles, and spoke with him. Salguera said
that Botello and Miles grew up together, agreeing with the interviewer that
they were pretty “tight.” Botello and
Miles then started walking up the hill.
Less than five seconds later, when they were about two car lengths from
him, Salguera heard a lot of gunshots, sounding like two different guns. Salguera thought they were shooting in the
air; he saw no one get hit. Miles came
running down the hill, carrying a gun, while Botello ran up the hill. Salguera did not see Botello with a gun. Salguera knew Miles was shooting, but did not
think Botello was one of the shooters because Botello was close to Miles and
the other gun sounded like an echo.
Salguera drove Miles home and did not ask him about the shooting.

In
his interview with police, Polries said he was at the corner of the garage when
he turned to look, at which point he heard many gunshots. Polries ran to the side yard, into the
backyard, and into the house. He heard
bullets whizzing past him as he ran.
Polries said he never saw a gun, and didn’t see Botello shoot at the
house. He also said that Botello was the
only person facing the house and all the bullets went toward it. Polries didn’t know if another person had a
gun, but it sounded as if two guns were firing.


F. Miles and Botello Meet at Miles’s House after the Shooting

Armas
testified that, following Botello’s directions, she drove from the shooting to
Miles’s house in Hercules. Armas and
Cooper stayed by the car, but everyone else got out and walked toward the
house. She thought that Botello and Burk
went inside. Armas thought she saw Miles
at the party, but did not remember seeing him at the house in Hercules. Later in her testimony, Armas said Miles was
already there when she arrived and that he, Botello, Burk, and Santos went
inside. Botello and Burk came out of the
house and Armas said that “we” got in the car and left. She drove to Cooper’s home and dropped
everyone off there.

Cooper
did not remember where Armas drove from the party, but she drove “really crazy”
and dropped off Cooper at Cooper’s house without making any stops.

Salguera
testified that he drove from the shooting to Miles’s house, where he dropped
off Miles and then left. Botello was
already there, on the sidewalk and several people, whom Salguera did not know,
were with him.

G. Injuries

Porter
was shot once, with a single bullet that went through him. It was not possible to determine what kind of
bullet it was. The bullet entered one
inch behind the right ear and exited on the upper forehead, just to the left of
the mid-line. Accordingly, the bullet
traveled from the back of the head toward the front and from right to left in
an upward path. The absence of stippling
showed that Porter was at least several feet away from the muzzle of the gun when
it fired.

Pierce
testified that he was shot in the leg.
The bullet went all the way through.
It took him about a week to recover.


H. Evidence from the Crime Scene

The
police found two groups of shell casings.
One group of four .45 caliber casings was in the street near the
driveway of 274 Zoe Court. A group of
nine 9-millimeter casings was found on the street toward Orleans Drive. No latent fingerprints were recovered from
any of the casings.

From
a recycling bin at the side of the house, the police recovered a revolver. The gun had a five-shot cylinder. Four of the cylinders were loaded with live
rounds and the fifth was empty. No
latent fingerprints were recovered from the gun.

The
police found an expended bullet in the backyard a few inches behind a fence on
the side of the house that divided the front yard from the backyard. A drainpipe on the side of the house was
freshly marked with an indentation near where the bullet was found. The garage door had two bullet holes in
it. The front window of the house had a
bullet hole in the lower left portion.
There were blood stains on the front steps.

I. Other Statements

Armas
testified about two conversations with Cooper.
The first was with Cooper and Olivia one or two days after the
shooting. The second was with Cooper
alone, before Armas spoke to the police.
In the second conversation, according to Armas, Cooper told her that she
had spoken to the police and that she was going back to tell the police what
she saw, to protect Botello because she saw the shooting, didn’t think the
situation was fair, and believed Botello was acting in self-defense. Cooper wanted Armas to go with her, but Armas
decided not to.

Armas
said that Cooper told her: (1) Botello
had a gun; (2) someone passed him the gun; (3) Botello started shooting after
he got the gun; (4) Botello started shooting in unison with other people; and
(5) Botello passed the gun back to somebody.
It is unclear from the record which of these alleged statements came in
which of the two conversations.

Armas
did not know where Cooper got the information that Botello passed the gun. She didn’t see anyone pass anything to him or
Botello pass anything back. Cooper
testified that she never saw Botello with a gun, didn’t think she told Armas
that he had one, and didn’t think she told Armas that someone passed a gun to
him.

Armas
also testified that she talked with Burk about the shooting in person and, soon
afterward, on the phone. Before she
spoke to Burk, Cooper had passed along the information described above, so it
was in her mind that Botello was a shooter.


The
phone call occurred when Armas called Burk’s cell phone. Burk said he thought it was the other person,
a second shooter, who shot the man who died.
At this point, Burk put on the phone a person who said to her, “Don’t
put my name in anything; I was never there; you don’t know me, and I just want
to make that clear.” Armas said she
believed the person speaking to her was Miles because Burk told her so.

Pistello
testified that Armas gave essentially the same account to him when he
interviewed her. Although Armas did not
remember Burk telling her on the phone who any shooter was, she believed from
her conversations with him that Botello was the first shooter and Miles was the
second. She also said that she didn’t
know if Burk meant that Botello or anyone else was shooting and she didn’t
remember the conversation.

J. Searches

Both
Botello’s and Miles’s homes were searched by the police. Only the evidence obtained at Botello’s home
is relevant to this appeal.

Pistello
testified that he served a search warrant at Botello’s home on August 2,
2007 Botello was not there, but members
of his family were. The police recovered
a red football jersey, from a back bedroom, with the number “16” painted in
gold and outlined in white. They also
recovered a red shirt with the number “1” painted on the back in white, and a
red article of clothing with a white paisley print.

From
the basement, the police recovered a large piece of cardboard displaying a
white cross with red and black borders.
Asked if this item was consistent with gang activity, the gang expert
said, “it can go either way.”

In
the dust on a window of one of the vehicles parked in front of the residence,
someone had written something like “J-Boy’s whip” and “No scrap.” The “s” in “scrap” was crossed out. A “whip” is a car. No evidence was presented that the car
belonged to Botello or that he had ever been known as, or referred to himself
as, “J-Boy.”

A
police officer also looked at Cooper’s cell phone. A photo on it showed Botello making a gang
sign: a “1” with one hand and a “4” with
the other.

K. MySpace Pages

Pistello
copied a number of messages from Botello’s MySpace page. Most of these messages carried the
caption: “My hood loves me, the cops
hate me.”

On
August 16, in response to a message asking him how he was doing, Botello
wrote: “Okay, but I’m out of state. They lookin’ for me on some stupid shit, but
I’m turning myself in in September.”
Later that day, he wrote: “I got
to stay low. You might have heard what
happened, but they’re looking for me for some shit that happened, so I’m
staying low.” Messages late that
afternoon and evening read: “It’s
hearsay, but they think I did it because I got into it with somebody at the
party, but they ain’t got shit on me”; “Yeah, nigga, they trying to stick me
for two 187”; and “Yeah, we do, cuz I might be gone for a long time.” “187” is the number of the murder statute in
the Penal Code.

On
August 17, Botello wrote: “I don’t know
if you heard but, boy, I’m in Dodge City cuz these punk police are on my
ass.” Later, in response to a message
about “187 charges” against him, he wrote:
“One and the other attempted, but they ain’t got shit on me, dis I’m
trying to get this shit over with.”

On
August 21, he wrote: “I know you know
where the functions are, but if there’s scraps, I can’t fuck with it, so let me
know what’s up?” On August 31 a message
had the caption: “I’m dodging these muthafuckas
like Barry Sanders.”

A
photo from Botello’s MySpace pagehref="#_ftn4"
name="_ftnref4" title="">[4] showed Botello
with his arm around Villarreal. Bonnett
was in the photo, making a “1” and a “4” sign with his hands and wearing a red
Chicago Bulls jersey.

L. Palmieri’s Testimony about Gang Association

Palmieri
testified, as a gang expert, to his opinion that Miles was a member or
affiliate of a Norteño street gang, as evidenced by various tattoos and items
displayed on the door of Miles’s bedroom.


Palmieri
described an incident in April 2007 in which a Norteño and a Sureño were
fighting and Botello intervened, attacking the Sureño who was involved. He believed that Botello acted with the
intent to benefit the gang and assist another gang member in criminal
activity.

A
photo from Botello’s MySpace page showed Botello wearing a baseball hat and
football jersey and making the “dub sign,” a hand sign associated with the
“Squad Boys,” a gang affiliated with the Norteños. The hand sign, however, is also a sign that
the person displaying it wants to buy marijuana and Palmieri did not regard it
as particularly associated with a Norteño gang.
Another photo showed Botello with his arm around a person who was making
a “1” as Botello was making a “4,” and others were also making gang signs.

Also
found on Botello’s MySpace page was a cartoon character, wearing a red baseball
cap with the letter “N” on it, urinating on the word “scraps.” Such a display was consistent with being a
Norteño member or affiliate.

Palmieri
expressed his opinion that Botello was a Norteño gang member or affiliate. He based this opinion on “the totality of the
evidence and circumstances, and police reports that [he had] read, and [his]
training and experience.”

After
testifying about the importance in gang culture of showing strength, Palmieri
said, in answer to a hypothetical question, that it would look weak for a gang
member to get bumped into at a party without asking for an apology and without
doing anything if the other person “escalates it.” In answer to another hypothetical, Palmieri
said it was consistent with gang activity for a gang member to get a gun from
another gang member and open fire after having been threatened with a gun. He said it was indicative of gang activity to
“immediately respond back with the proper amount of force, to gain your respect
back . . . .” Brandishing
a gun at a gang member would be “a huge disrespect of” him and would need to be
answered, or the gang member would be considered weak, particularly if another
gang member were present.

Palmieri
testified that, in jail, Botello was housed with Norteños, separate from
Sureños, but during cross examination, Palmieri admitted that he did not know
Botello’s current housing situation in jail.

>DISCUSSION

>I. >The Meaning of Miles Acquittal

Before
dealing with Botello’s specific assertions of error, we address a fundamental
mistake that Botello makes at different points.
We will address the specifics as they arise, but briefly, Botello would
have us factor the jury’s acquittal of Miles into our evaluation of the
sufficiency of the evidence, or conclusions about valid routes by which the
jury could reach its determinations.
These arguments amount to the proposition that we must adopt a rule of
consistency—that our determinations concerning Botello must be consistent with
Miles’s acquittal.

In
People v. Palmer (2001) 24 Cal.4th
856, 860 (Palmer), defendant Price
argued “that, because it takes at least two to conspire, the verdict finding
Palmer, his only alleged coconspirator, not guilty of conspiracy is
inconsistent with his conviction for the same conspiracy.” The court recognized that the conspiracy
verdicts were indeed inconsistent, but held that both could be given effect,
observing: “The law generally accepts
inconsistent verdicts as an occasionally inevitable, if not entirely
satisfying, consequence of a criminal justice system that gives defendants the
benefit of a reasonable doubt as to guilt, and juries the power to acquit
whatever the evidence.” (>Ibid.)
The Palmer court recognized
the general rule “ ‘that acquittal of one codefendant normally will not require
acquittal of another’ ” (id. at p.
861) and held that “Price’s verdict must stand or fall on its own merit, not in
comparison to Palmer’s.” (>Id. at p. 865.) The court concluded: “Price does not claim that any of his jury’s
verdicts, including the conspiracy conviction, lacks evidentiary support. Accordingly, the Court of Appeal correctly
affirmed the conspiracy conviction even though it is logically inconsistent
with Palmer’s acquittal of that conspiracy.”
(Id. at p. 866.)

The
Palmer court noted that “[t]he United
States Supreme Court has embraced this general rule [giving effect to
inconsistent verdicts]. ‘Inconsistency
in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency
between verdicts on separate charges against one defendant, [citation], and
also with respect to verdicts that treat codefendants in a joint trial
inconsistently, [citation].’ ” (>Palmer, supra, 24 Cal.4th at pp. 860, 961, quoting Harris v. Rivera (1981) 454 U.S. 339, 345, fns. omitted.)

Given
clear guidance at both the state and federal level, we cannot accept Botello’s
arguments that a rule of consistency must apply. Botello’s verdict must stand or fall on its
own merit, not in comparison to Miles’s.

I. Instructional Error

Botello claims that the trial
court prejudicially erred in instructing the jury by: (1) including an instruction on the right of
occupants of a residence to use reasonable force to eject a trespasser (CALJIC
No. 5.40); (2) providing misleading and incomplete instructions on self-defense
and imperfect self-defense, even if CALJIC No. 5.40 was properly included; (3)
failing to instruct the jury concerning mutual combat and the circumstances
under which the original aggressor may claim self-defense; and (4) failing to
instruct the jury on proximate causation.

A. Standard of Review and Applicable Law

Article VI, section 13, of the California Constitution provides that a
judgment cannot be set aside “unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” We review the legal adequacy of an
instruction independently. (>People v. Cole (2004) 33 Cal.4th 1158,
1210.)

“[T]he
trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts
and that are necessary for the jury’s understanding of the case.” (People
v. Carter (2003) 30 Cal.4th 1166, 1219.)
However, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the case.” (People
v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Nonetheless, giving an irrelevant or
inapplicable instruction is generally “ ‘ “only a technical error which
does not constitute ground for reversal.” ’ ” (People
v. Cross (2008) 45 Cal.4th 58, 67.)

If
we find that instructional error occurred, we may not reverse the judgment
unless we also find that the defendant was prejudiced by the error. (See, e.g., People v. Lee (1987) 43 Cal.3d 666, 671.) If the error rises to constitutional
dimension, amounting to a denial of the defendant’s due process rights, we
determine prejudice using the Chapman test: prejudice arises unless the error was
harmless beyond a reasonable doubt. (>Chapman v. California (1967) 386 U.S.
18, 24.) Otherwise, we determine
prejudice using the Watson test: prejudice arises if it is “reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (>People v. Watson (1956) 46 Cal.2d 818,
836.)

“With
regard to criminal trials, ‘not every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a href="http://www.fearnotlaw.com/">due process violation. The question is “ ‘whether the ailing
instruction . . . so infected the entire trial that the resulting
conviction violates due process.’ ” ’ ” (People
v. Huggins (2006) 38 Cal.4th 175, 192.)
“In reviewing a claim of error in jury instructions in a criminal case,
this court must first consider the jury instructions as a whole to determine
whether error has been committed.
[Citations.] We may not judge a
single jury instruction in artificial isolation, but must view it in the
context of the charge and the entire trial record.” (People
v. Moore (1996) 44 Cal.App.4th 1323, 1330–1331; see also >Guiton, supra, 4 Cal.4th at p. 1130 [in examining the question of prejudice
from instructional error, an appellate court should look to the entire record,
including the evidence and arguments of counsel].)

B. CALJIC No. 5.40

Botello
first contends that the trial court erred by instructing the jury with CALJIC
No. 5.40, over defense objection, because there was no factual basis for
it. This instruction, as recited to the
jury, provides: “The lawful owner or
occupants of a residence or habitation on real property has the right to
request that a trespasser leave the premises.
If the trespasser does not do so within a reasonable time, the
owner/occupants may use reasonable force to eject the trespasser. [¶]
The amount of force that may be used to eject the trespasser is limited
by what would appear to a reasonable person, under the existing circumstances,
to be necessary to prevent damage to the property or physical injury or death
to the homeowner, or occupant or guests.”


“The
principles set forth in CALCRIM No. 3475 [the CALCRIM analogue to CALJIC No.
5.40] . . . apply primarily to cases in which the >owner or occupant of property is charged
with using excessive force to remove a trespasser.” (People
v. Johnson (2009) 180 Cal.App.4th 702, 709.) These principles “might also apply when there
is an issue of whether a trespasser had any right to defend himself against the
use of force by the owner/occupant of the property. In general, if an owner/occupant lawfully
uses force to defend himself against aggression by a trespasser, then the
trespasser has no right of
self-defense against the owner/occupant’s use of force.” (Id.
at pp. 709-710.) This case presents a
use of the instruction for the second noted application—if Botello were a
trespasser then he would have no right of self-defense in response to
reasonable attempts by an owner/occupant to eject him from the property.

1. The Prosecutor’s Arguments

In
rebuttal to defense counsel’s closing argument for self-defense, the prosecutor
told the jury: “But Botello was told to
get out. Get out of the party. Initially he was told, Don’t come to the
party. And once he got there things went
downhill and he was told to get out. Did
he get out? No. [¶]
The judge read an instruction that says the owner or occupant of a
property has a right to use force to put somebody out. What’s reasonable? It doesn’t seem to work to say, Joey, it
looks like you’re a little hot under the collar today. Maybe you ought to go home and get some sleep
and tomorrow will be a brighter day.
That kind of logic does not seem to work with Joey Botello. When Joey Botello sees a fight, he’s
in. . . . [¶] So, what do you do to throw Joey out? Sure, the obvious thing is you call the
police and say, We’re having a party, we’re underage, we’re drinking, and we
have a guy here who’s causing problems.
Can you come and throw him out so we can get on with our drinking? That didn’t happen. [¶]
Yeah, they got guns. That was a
mistake. That was wrong. Morally.
None of us would advise that at all.
Legally, yes, you can show Botello a gun, and they can show him and
point it at him, and say, What now? What
now? How tough are you now? Now get out.
[¶] There is no evidence that a
gun was fired, but the judge gave you an instruction that they can do
that. They can use force. There’s no evidence that anybody touched
Joey. It was just, Get out, please. What does it take?”

The
prosecutor then went on to argue against “heat of passion” mitigation to
manslaughter because the time period between the confrontation of the
African-Americans with Botello in the street and the shooting, which occurred
when the African-Americans had reached the door of the house, provided
sufficient time to cool off. The prosecutor
also argued against a finding of self-defense, asserting that Botello acted
from a motive of disrespect and not from fear and also that Botello was not in
imminent danger at the time of the shooting because the African-Americans were
no longer confronting him in the street but had reached the front porch of the
house. He argued that the jury could not
find self-defense because Botello had reached a place of safety by going after
Miles to Salguera’s truck and then came back with a gun. Similar considerations supported the
prosecutor’s arguments that the jury could not find imperfect self-defense,
mitigating murder to manslaughter.

Following
this, the prosecutor again called CALJIC No. 5.40 to his assistance: “[Botello] created the situation when he
tried to start the fight and refused to leave the party. [¶] He
was obligated to leave when asked. The
judge read you an instruction that that is what the law is. They were entitled to throw Botello out of
their party. It was their house, and
when they wanted him out, he was trespassing.
And they were entitled to use force after Botello threatened violence to
stay there. That’s what the law is. Botello has to leave when they tell him
to. Botello can’t say I’m going to kick
your ass and stay. That’s illegal.” Finally, the prosecutor told the jury: “Now, the facts proven are there was a
conflict at the party and Botello threatened violence. Botello was ejected from the party in a
disrespectful but legal manner. Botello
was offended and he sought out Miles.
Miles and Botello returned with firearms, they both opened fire, killing
Porter and wounding Pierce.”

2. Lack of Evidence Supporting the Use of CALJIC No. 5.40

Botello
asserts that the instruction was given in error “because there was no evidence
at the time of the confrontation between the African-Americans and Botello in
front of the house Botello was on the property of 274 Zoe Court or that he
attempted to forcibly enter the property.
To the contrary, the evidence indicated that Botello was on a public
street—Zoe Court at the time of that confrontation.” “Furthermore, there was no evidence that at
the time the African-Americans assaulted Botello with a firearm, Botello posed
any threat to the property or the occupants of the property or their
guests. Indeed, the people at the party,
including Botello and his companions, were in the process of leaving the party
when the confrontation in the street occurred.”


The
People make no effort to argue that the court’s instruction of the jury with
CALJIC No. 5.40 was supported by the facts of the case, choosing instead to
focus on the question of prejudice.
Their only words bearing on factual support are: “We do not concede the premise of appellant’s
argument—that the instruction was inapplicable because appellant had already left
the premises when the men ‘ejected’ him.
That point was subject to debate.”
Although Villarreal placed Botello in the driveway of 274 Zoe Court when
the African-Americans confronted him with a gun, the clear weight of the
evidence was that Botello was either in the street or on the sidewalk across
the street, and was no longer on the property at 274 Zoe Court.

Whether
or not one can debate Botello’s proposed reasons why the instruction was
unsupported by fact, we find a more fundamental reason. CALJIC No. 5.40 concerns the right of the
“lawful owner or occupants of a residence.”
The sole evidence we find in the record concerning the occupants of 274
Zoe Court is that it was the residence of Lamar and his father. We find no indication in the record that
Lamar or his father attended the party, much less that they were involved in
any action that could be interpreted as an expulsion of Botello for
trespassing. Ladarian, Lamar’s brother,
was present at the party and may have been the person who pointed a gun at
Botello, but Ladarian lived in Vacaville, not at 274 Zoe Court. Nothing in the record supports the inference
that Ladarian, or anyone else, was acting as an agent for Lamar or his father.

Because
the record does not support a conclusion that the lawful owner or occupants of
274 Zoe Court were involved in an attempt to expel Botello, it was error for
the trial court to instruct the jury with CALJIC No. 5.40.

3. Prejudice

Botello
argues that based on CALJIC No. 5.40 and the prosecutor’s arguments, the jury
might have assumed that the African-Americans who confronted Botello in the
street and pointed a firearm at him were acting lawfully and that Botello had
no right to defend himself or claim mitigation to manslaughter because he acted
in the heat of passion. Botello claims
that the error violated the due process guarantee that requires the prosecution
to bear the burden of proving the absence of self-defense beyond a reasonable
doubt. (See People v. Martinez (2003) 31 Cal.4th 673, 707.) He also claims that the error violated the
due process guarantee that requires the prosecution in a murder or attempted
murder prosecution to prove the absence of imperfect self-defense and heat of
passion beyond a reasonable doubt. (See >Mullaney v. Wilbur (1975) 421 U.S. 684,
703-704; People v. Rios (2000) 23
Cal.4th 450, 460, 462.)

Here
the jury was instructed with two alternative routes by which they could find
that the homicide was not justified: (1)
by finding that the People had proven the absence, beyond a reasonable doubt,
of one of the elements of self-defense or (2) by finding that Botello had no href="http://www.mcmillanlaw.com/">right of self-defense because he reacted
to lawful measures taken to expel him from property.href="#_ftn5" name="_ftnref5" title="">>[5] The first route was supported by substantial
evidence (Botello does not argue otherwise) and the second route was not. This is the type of situation addressed by
the California Supreme Court in Guiton.

The
defendant in Guiton had been charged
and convicted of selling or transporting cocaine. (Guiton,
supra, 4 Cal.4th at p. 1120.) The Court of Appeal observed that the jury
was instructed that it could convict the defendant on either of two
grounds—that he sold or transported
the cocaine—and there was insufficient evidence to support a finding that he
sold cocaine. (Ibid.) Because it could not
determine from the record whether the jury verdict rested on the valid ground
of transporting cocaine or the invalid ground of selling cocaine, the Court of
Appeal reversed. (Ibid.)

The
Guiton court examined and discussed >Griffin v. United States (1991) 502 U.S.
46 (Griffin). (Guiton,
supra, 4 Cal.4th at pp.
1123-1126.) In Griffin, the defendant had been charged with a conspiracy having
two objects, with sufficient evidence to connect the defendant to one, but not
to the other. (Guiton, at p. 1123.) The
jury was instructed that it could return a guilty verdict if it found the
defendant to have participated in either one of the two objects. (Ibid.) “The Griffin
court . . . drew a distinction between a mistake about the law, which
is subject to the rule generally requiring reversal, and a mistake concerning
the weight or the factual import of the evidence, which does not require
reversal when another valid basis for conviction exists.” (Id.
at p. 1125.) The Guiton court noted Griffin’s
reasoning: “ ‘Jurors are not
generally equipped to determine whether a particular theory of conviction
submitted to them is contrary to law—whether, for example, the action in
question is protected by the Constitution, is time barred, or fails to come
within the statutory definition of the crime.
When, therefore, jurors have been left the option of relying upon a
legally inadequate theory, there is no reason to think that their own
intelligence and expertise will save them from that error. Quite the opposite is true, however, when
they have been left the option of relying upon a factually inadequate theory,
since jurors are well equipped to
analyze the evidence [citation].’ ”
(Guiton, at p. 1125, quoting Griffin,
at p. 59.) The Guiton court agreed with this reasoning (Id. at p. 1126) and observed:
“In analyzing the prejudicial effect of error, . . . an
appellate court does not assume an
unreasonable jury. Such an assumption
would make it virtually impossible to ever find error harmless. An appellate court necessarily operates on
the assumption that the jury has acted reasonably, unless the record indicates
otherwise.” (Id. at p. 1127.)

In
considering the standard of review when the jury has been presented with a
factually inadequate theory, the Guiton
court noted that Griffin, though
stating that ‘ “it would generally be preferable’ to remove an unsupported
theory from the jury’s consideration, [did] not suggest that the failure to do
so would violate the federal Constitution.”
(Guiton, supra, 4 Cal.4th at pp. 1129-1130, quoting Griffin, supra, 502 U.S.
at p. 60.) “The error is therefore one
of state law subject to the traditional Watson
test . . . .” (>Guiton, at p. 1130.)

>Guiton imposed the following test for
cases in which a jury had been presented with a factually inadequate theory of
conviction: “the appellate court should
affirm the judgment unless a review of the entire record affirmatively
demonstrates a reasonable probability that the jury in fact found the defendant
guilty solely on the unsupported theory.”
(Guiton, supra, 4 Cal.4th at p. 1130.) Guiton
did not find that reversal is never appropriate and hypothesized that in “a
case in which the district attorney stressed only the inva