P. v. Mendoza

Filed 4/8/08 P. v. Mendoza CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Following an exchange of verbal taunts and the throwing of gang signs, a fight took place between two rival gangs. In the aftermath, one gang member lay seriously wounded in a pool of blood. An information charged defendant Miguel Mendoza with attempted murder (Pen. Code, 187, 664 -- count I),^[1]three counts of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1) -- counts II, III, IV), and with actively participating in a criminal street gang ( 186.22, subd. (a) -- count V). As to counts I, II, III, and IV, the information alleged the crimes were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).)

A jury found defendant guilty of attempted voluntary manslaughter, one count of assault by means of force likely to produce great bodily injury, and of actively participating in a criminal street gang. The jury acquitted defendant of the other two counts of assault.

Sentenced to five years in prison, defendant appeals, contending: (1) the court failed to instruct on the crimes that qualify as primary activities of a criminal street gang, (2) insufficient evidence supports the primary activities element of participation in a gang, (3) the court improperly instructed on the natural and probable consequences doctrine, (4) the court erred in admitting a codefendants statement, (5) prosecutorial misconduct, (6) the court erred in permitting expert testimony regarding the origins of the fight, (7) there was insufficient evidence to prove defendant participated in the fight with criminal intent, and (8) the court failed to instruct on the interrelation of aiding and abetting and self-defense.^[2] We shall reverse defendants convictions on two counts and remand for a partial retrial.

FACTUAL AND PROCEDURAL BACKGROUND

Members of two rival Hispanic gangs clashed on a summer evening, leaving one man seriously wounded. Defendant and three other alleged members of the Norteo gang, Ignacio Mendoza, Johnny Hernandez, and Juan Arteaga, were charged with various gang offenses.^[3]An information charged defendant with attempted murder (count I), three counts of assault by means of force likely to produce great bodily injury (counts II, III, IV), and with actively participating in a criminal street gang (count V). It was further alleged as to counts I, II, III, and IV that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang. ( 186.22, subd. (b)(1).) As to counts I, II, III, and IV, it was also alleged defendant personally inflicted great bodily injury. ( 12022.7, subd. (a).)

A jury trial for all four defendants followed.

Prelude to an Altercation

One summer evening in 2005, Ramon Ruelas, Rafael Castrejon, and Zeferino Valdez sat drinking together at Castrejons home. Ruelas admitted to having been a member of the Sureo gang but stated he had left the gang about two years before the incident. Valdez admitted membership in the Sureos and stated Ruelas and Castrejon were also members of that gang.

As a black pickup truck passed the house, its driver threw up gang signs. However, Ruelas paid no attention to the drivers gestures. Later that night the trio walked to a store. As they walked, the same black pickup passed them.

Valdez testified that as they walked, he decided to go to Hernandezs house to fight him. According to Valdez, once when he and his wife were looking at an apartment to rent, Hernandez came out of his house and mess[ed] with and disrespect[ed] Valdez in front of his wife and children. A few weeks previously, Hernandez had approached Valdez with a crowbar.

The night of the incident, Valdez intended to approach Hernandez and ask him if he wanted to fight me one on one, that was it. Ruelas accompanied Valdez to cover . . . Valdezs back.

The Altercation

When they reached Hernandezs house, the trio met a group of five or six men. Valdez testified that one or two beer bottles were suddenly hurled at him. Valdez was knocked out and remembered nothing until he awoke in the hospital days later. During the fight, Valdez lost a shoe.

Ruelas testified that shortly after the black pickup passed by, five men emerged from the darkness and rushed him, Castrejon, and Valdez. The attackers were armed with baseball bats and tools; one swung a metal pipe.

Ruelas began fighting with a light skinned, tall, thin man with a bald head. Another man, armed with the metal pipe, hit Ruelas in the head and arm. Ruelas emerged from the fight with a broken hand and arm.

When the fighting died down, Ruelas and Castrejon started to leave but returned to retrieve Valdez, who lay on the ground in a large puddle of blood. Ruelas and Castrejon picked up Valdez and carried him to a nearby store. The duo then drove Valdez to the hospital.

What the Neighbors Saw

Hernandezs neighbors also caught glimpses of the altercation. Fifteen-year-old Kimberly C. was outside when she saw a lot of people, like, walking towards each other . . . . One group walked down the street; the other group stood at the end of the alley. Kimberly saw someone from the group that was walking throw a bottle at a dog coming toward them. Kimberly went into her gated yard, and although she did not see what took place, she heard the sound of punches being thrown.

Kimberlys mother, Susan C., heard some voices outside, loud voices. A moment later, Kimberly entered the house and told her there was a fight outside. Susan went outside and looked out the gate. She saw a body lying on the sidewalk and called 911.

Susan returned to the gate, but the body on the sidewalk had vanished. She looked down the street and saw two figures supporting a third figure, slumped between them, walking away. A group of teenage boys stood down the street near the Hernandez house. After the fight, Susan saw three or four people get into a black pickup truck, which looked like one often parked outside Hernandezs house.

Brett C., Susans husband, testified that he walked into his kitchen and his wifes brothers girlfriend said there was a fight outside. Brett told her to call 911 and went to investigate. Hernandez and a group of young men approached him. Brett told them he had called 911 and the police were on the way. Hernandez said he was looking for somebody, and Brett pointed toward another group of people a block and a half away and said: Well, that must be who you are looking for. Hernandez and the others got into a black pickup and drove quickly away.

The Investigation

City of Corning Police Officer Timothy Osborn arrived on the scene in the aftermath of the fight. Freshly broken beer bottles littered the street, along with two unmatched tennis shoes. Osborn also found two puddles of blood on the sidewalk. Osborn was dispatched to a nearby business, where an injured man had sought help. The man was gone, but Osborn found blood spatters on the sidewalk outside the business.

Corning Police Detective Mel Allison interviewed Ruelas and Castrejon, who had been detained by another officer. Ruelas told Allison that Hernandez had driven by Castrejons house, throwing up gang signs and talking gang shit. Ruelas recognized Hernandez but was not concerned since Hernandez was alone and Ruelas didnt think [Hernandez] would do anything when he was alone. As he walked to Castrejons parents house, he heard some gang members say Norte. During the fight, Ruelas saw Castrejon battle Hernandez near Hernandezs house.

Castrejon told Detective Allison that he, Valdez, and Ruelas, accompanied by some female friends, were hanging out at Castrejons house drinking beer. Valdez and Ruelas wanted to go buy more beer, and Castrejon decided to join them. As they left the house, a black pickup truck Castrejon believed Hernandez owned went by.

After the pickup passed, the trio decided to walk to Castrejons parents house. When they got to Fifth and Butte Streets, they saw four or five people, who jumped them. Castrejon did not recognize any of the assailants. One man hit Castrejon on the side of his head with a stick. Castrejon fought back.

Castrejon got up and began to run but returned to help Ruelas get Valdez up off the street. The trio went to a nearby store for help, and then Castrejon drove Valdez and Ruelas to the hospital.

The beating left Valdez with his jaw broken in four places, his nose broken in two, and broken cheekbones.

Investigation of Hernandez

Detective Allison interviewed codefendant Hernandez following his arrest. The night of the incident, Hernandez heard some yelling coming from the alley behind his house and went out to investigate. Suddenly, he was struck in the back of the head and knocked unconscious. When Hernandez regained consciousness a short time later, everyone was gone. According to Hernandez, the fight came about because he was messing around with some Sure[]o girls. After the fight, Hernandez went to a fast food restaurant until it was safe to go home.

Detective Allison and Corning Police Officer David Kain served a search warrant at Hernandezs house. The officers found three aluminum bats, one bloodstained. They did not find any other baseball-related items in the house. The officers also found a metal jack handle and several items of red clothing.

In Hernandezs black pickup, Officer Kain found several photographs. In one photo, a shirtless Hernandez stands with a group of men, all sporting gang-related tattoos. Letters found in the truck discussed various Norteo gang members and were sprinkled with gang terminology.

Officer Kain also found music CDs by a Norteo artist. On one CDs label the letter S was replaced by the letter Z and on another label the letter S was crossed out, a sign of disrespect towards the Sureos.

Defendants Interview

Defendant told Detective Allison he had been at home with Eddie Bono and David Preciado, and knew nothing about the fight. In a later interview, defendant told Officer Kain he had been sleeping at Hernandezs house when someone ran in and told him that people were throwing rocks at the residence.

When defendant ran outside, he heard someone yell Sur Trece, L.A. lives, and San Diego lives. Three or four Sureos rushed defendant and he began to fight. Defendant fought with someone tall and skinny. After the fight ended, defendant went home.

Expert Testimony

Eric Clay, an investigator in the Tehama County District Attorneys office, specializes in gang investigations. Clay stated the two rival Hispanic gangs operating in the county are the Norteos and the Sureos. The two gangs evolved from prison gangs: the Norteos from Nuestra Familia and the Sureos from the Mexican Mafia. The two gangs engage in a never-ending rivalry. Members of one gang assault, threaten, intimidate, vandalize, you name it, members of the other gang and it goes back and forth.

The two gangs cleave to various symbols. Norteos favor the number 14, representing the letter N. Sureos favor the number 13, representing the letter M. Norteos sport red clothing; Sureos sport blue clothing.

According to Clay, gang members focus on power, respect, family, and notoriety. Clay testified: The whole lifestyle of a gang is whos the biggest, badest in the gang and who do we look up to, and that all is power albeit through fear, basically, and the respect is also from fear . . . . Gang members follow a code of silence in their dealings with police, declining to aid the police in favor of settling conflicts with rival gangs on their own.

Clay stated that Norteos commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist. As examples, Clay described three criminal acts committed by members of the Norteo gang that, he stated, constituted predicate acts within the meaning of the criminal gang statute. In the first, in July 2000, four Norteos shot at the home of a Sureo gang member. Two Norteos were convicted of the drive-by shooting. In the second offense, in 2003, a Norteo stabbed two Sureos after exchanging words. Two Norteos were convicted in the case. In the third offense, also in 2003, a verbal altercation between Sureos and Norteos in a parking lot led to a shooting. A man and his wife, both Norteos, were convicted of the crime.

According to Clay, county law enforcement uses a common-sense approach to identifying gang members. Law enforcement considers a variety of factors, including admission of gang membership to jail personnel, wearing gang clothing, participation in gang activities, association with known gang members, displaying gang signs, possessing gang paraphernalia, and sporting gang tattoos.

Employing these criteria, Clay determined that Valdez, Castrejon, and Ruelas belonged to the Sureos. Clay also testified that in his opinion, defendant belonged to the Norteos. According to Clay, while being classified in the county jail, defendant admitted while he was being booked during the classification that he was a Norte[]o gang member. Also, based on this incident, defendant associated with documented Norteo gang members Arteaga, Ignacio, and Hernandez. Clay also participated in a probation search at defendants residence. The search unearthed a red belt with a buckle bearing a huelga bird symbol.^[4] The huelga is an Aztec design and Norteo gang symbol.

Officer Kain also testified as an expert on gangs. Kain, too, considered defendant an active member of the Norteos. In Kains opinion, the fight among Valdez, Ruelas, Castrejon, and the other men outside Hernandezs house was a gang-motivated fight. The fight benefitted the Norteo gang by boost[ing] their respect, it boosts their notoriety within their own gang, and it disrespects the Sure[]os.

Defense Case

Clayton Hollopeter, a Los Angeles County Probation Commissioner and creator of a gang intervention program, testified as a gang expert. Hollopeter testified most gang members join a gang by being jumped in by other gang members for a period of time, usually four or five minutes, it is sort of a proof of your desire to be in the gang, it is a fight. Some gang members children are born into the gang. Very few gang members are hard core. According to Hollopeter: The active gang members may be as high as 20 or 25 percent of a gangs membership, and there are guys who sometimes do gang stuff together with other gang members, but they still conduct their life in a more or less normal way. In general, Hollopeter testified, gang members admit gang membership to him.

DISCUSSION

I. Instructional Error -- Primary Activities

Defendant argues the trial court erred in failing to instruct the jury on the crimes that qualify as primary activities underlying the gang enhancement on the assault count and the charge of membership in a criminal street gang. The People concede the issue. The concession is appropriate.

Defendant was charged with participation in a criminal street gang in violation of section 186.22, subdivision (a). The information also charged a gang enhancement under section 186.22, subdivision (b). To invoke the gang statutes sentence-enhancement provision and to find defendant guilty of violating section 186.22, the jury was required to find that the gangs primary activities included the commission of one or more of the offenses enumerated in the gang statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)

The trial court instructed the jury with CALJIC No. 6.50 on the charge of participation in a street gang and with CALJIC No. 17.24.2 on the gang enhancement. The instructions included reference to primary activities and the need to find that one of the gangs primary activities was the commission of one or more of the crimes listed in section 186.22, subdivision (e). However, the instructions failed to describe the listed offenses but referred vaguely to the applicable criminal acts without identifying the crimes that constituted the gangs primary activities. As a consequence, the instructions failed to inform the jury of a necessary element of the substantive gang offense and the gang enhancement. Failure to instruct on an element of an offense or an enhancement is reversible per se. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)

We therefore accept the Peoples concession and shall remand for retrial.^[5]

II. Sufficiency of the Evidence -- Primary Activities

Joining with his codefendants, defendant argues retrial is barred on the crime of actively participating in a criminal street gang and the gang enhancement under section 186.22, subdivision (b)(1) because the People failed to present sufficient evidence to support the element of primary activities. If we find insufficient evidence to support a conviction on a substantive crime, the double jeopardy clauses of the state and federal Constitutions bar retrial. (Burks v. United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1]; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)

Although defendants codefendants concede substantial evidence supportive of the primary activities element may consist of expert testimony, they argue neither of the Peoples experts stated directly what the gangs primary activities were. Instead, one expert listed a variety of crimes committed by Norteo gangs, and the other expert testified that rivalry among the gangs led to the commission of both qualifying and nonqualifying crimes. This evidence, defendant and his codefendants contend, is insufficient to support the substantive gang count and the gang enhancement and bars retrial.

The element of primary activities is not satisfied by a general showing that a gang commits crimes. Instead, there must be substantial evidence that a chief or principal occupation of the gang is to commit any of the crimes specified in section 186.22, subdivision (e). (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004; Sengpadychith, supra, 26 Cal.4th at p. 323.)

Defendant contends none of the gang experts testified that commission of any of the offenses listed in section 186.22, subdivision (e) was a primary activity of the Norteos. Defendant agrees with the assertions of codefendants Ignacio and Hernandez that Clays testimony was too generic to establish the element of primary activity and failed to show the gang consistently and repeatedly engaged in this sort of conduct.

Defendant reads the expert testimony too narrowly. District Attorney Investigator Clay testified that Norteos commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist. (Italics added.) Clay also characterized the whole milieu of Norteo gang members: The whole lifestyle of a gang is whos the biggest, baddest in the gang and who do we look up to, and that all is power albeit through fear, basically, and the respect is also from fear . . . .

While it is true Clay did not directly testify that the Norteos primary activities included commission of any of the offenses listed in section 186.22, subdivision (e), Clays testimony established that the Norteos act out of a desire for power, respect, family, and notoriety. To effectuate these desires, Clay testified, Norteos commit any crimes such as stabbings and shootings.

Clays testimony established that Norteos operated as a gang within the meaning of section 186.22, subdivision (f). The jury could reasonably infer from his testimony that one of the Norteos primary activities was the perpetration of crimes such as assault by means of force likely to produce great bodily injury, attempted murder, or murder, crimes enumerated in section 186.22, subdivision (e).

The expert testimony in the present case is distinguishable from expert testimony found wanting in In re Nathaniel C., supra, 228 Cal.App.3d 990. In In re Nathaniel C., the expert, a police officer, offered only nonspecific hearsay, lacked any personal knowledge, and only repeated what another officer told him. The Supreme Court found such vague secondhand testimony could not provide substantial evidence that the required predicate offense by a gang member took place. (Id. at p. 1003.) Here, Clay testified he had personally been involved in the investigation of gang-related crimes committed by Norteos.

Defendant also joins in Ignacios contention that the evidence of the three predicate offenses, one of them occurring five years before the instant offenses and two of them occurring three years later, was insufficient to establish that Norteos consistently and repeatedly committed one or more crimes listed in the gang statute or that a primary activity of the gang was commission of those crimes. In support, defendant relies on People v. Perez (2004) 118 Cal.App.4th 151 (Perez).

In Perez, a gang expert testified that the gang the defendant belonged to had participated in the retaliatory shootings of a few individuals over a period of less than a week and a beating six years earlier. (Perez, supra, 118 Cal.App.4th at pp. 157, 158, 160.) The court found the testimony insufficient to establish that the groups members consistently and repeatedly committed criminal activity listed in the gang statute. (Id. at p. 160.)

Here, in contrast, prosecution expert Clay testified to three specific Norteo gang crimes, the first in 2000 and the latter two in 2003. Those offenses, unlike the offenses in Perez, provide sufficient evidence to establish the Norteos consistently and repeatedly committed crimes enumerated in the gang statute.

The record reveals sufficient evidence to support defendants conviction of the substantive gang offense and the gang enhancement under section 186.22, subdivision (b)(1). Therefore, although the trial court prejudicially erred by failing to properly instruct the jury on the elements of participating in a criminal street gang, double jeopardy does not bar retrial.

III. Sufficiency of the Evidence -- Criminal Intent

Introduction

Based on Ignacio Mendozas admission that he beat Valdez with a baseball bat and the jurys finding that Ignacio, alone among the three defendants charged, personally inflicted great bodily injury on Valdez, it is reasonable to suppose that defendant was convicted under an aiding and abetting theory. Defendant embraces this supposition and argues there was insufficient evidence he harbored the state of mind necessary for a finding of guilt as an aider and abettor. Defendant points to the absence of evidence that he was involved in the events leading up to the fight or even knew the Sureos were coming.

In reviewing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment. We determine whether the record discloses rational, credible evidence of solid value such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) We presume the existence of every fact in support of the evidence that the trier of fact could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.) We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented. (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529 (Nguyen).)

A person who aids and abets the commission of a crime is a principal in the crime and shares the guilt of the actual perpetrator. Accomplice liability is derivative; it results from an act by the perpetrator to which the accomplice contributed. (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) [T]he law imposes criminal liability upon all persons concerned in the commission of a crime. ( 31.) As a legal standard this provision creates what may be considered a bright line rule. If a person is concerned in the commission of a crime then he is guilty of that crime without assessment of the degree of his involvement otherwise. Liability attaches to anyone concerned, however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal. [Citations.] A person is concerned and hence guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures. (Nguyen, supra, 21 Cal.App.4th at p. 529.)

Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime. However, these are factors the trier of fact may weigh in assessing a defendants criminal responsibility. Moreover, mere knowledge of anothers criminal purpose is not sufficient to support guilt as an aider and abettor; the defendant must share that purpose or intend to commit, encourage, or facilitate the commission of the crime. The requirement that the trier of fact determine the intent with which a defendant tried as an aider and abettor has acted is not designed to ensure that the defendants conduct constitutes the offense with which the defendant is charged. A defendants liability is vicarious. If the acts are undertaken with the intent that the actual perpetrators purpose be encouraged or facilitated, the defendant is a principal and liable for the commission of the offense. (Nguyen, supra, 21 Cal.App.4th at pp. 529-530.)

The Evidence

Under defendants review of the record, the only evidence presented at trial as to his state of mind was the statement he made to Officer Kain. Defendant told Kain he was asleep in the Hernandez house on the night of the fight. Someone ran inside and said rocks were being thrown at the house. Defendant ran outside and heard people shouting Sureo slogans. Suddenly, three or four Sureos rushed the four people at Hernandezs house. Defendant fought with one of the attackers.

Defendant concedes that the prosecution adequately proved his participation in the fight. But the fight was started by the Sureos. The evidence showed that a fight started, and either appellant observed that other people were attacking his group -- including himself -- or he arrived after the fight had started and observed there was a fight going on and some of his friends, including his brother, were under attack. In either case, the evidence was insufficient to prove that when he involved himself in the fist fight appellant acted with criminal intent, and did not act in reasonable belief that there was imminent danger of bodily harm, using reasonable force under the circumstances to defend against that danger.

Defendants recitation of the evidence paints defendant as a hapless victim of Sureo aggression, ignorant of earlier events of the evening, oblivious to the brewing storm that would culminate in the beating of Valdez, and wishing only to defend himself. Were this the only version of events presented to the jury, we would not hesitate to reverse defendants conviction. However, defendants summary fails to account for the testimony of all the prosecution witnesses -- testimony that makes no mention of anyone in Hernandezs house being rushed but instead recounts the aggression of four to six men standing in front of Hernandezs house who brutally attacked Valdez, Ruelas, and Castrejon with a metal pipe, tools, and a baseball bat.

Valdez testified that following an encounter with Hernandez two weeks before the assault, he decided to go to Hernandezs house to fight him. On arrival he, Ruelas, and Castrejon were attacked by a group of five or six men. Suddenly, beer bottles flew and Valdez rushed one of the men, who carried a baseball bat. Valdez woke up several days later in the hospital.

Ruelas testified that while he, Valdez, and Castrejon were walking to a liquor store, a black pickup truck passed them, and shortly afterward he and his companions were set upon by five men who came out of the dark. The men wielded bats and tools. Ruelas fought with a skinny man with a bald head, then with a dark-skinned man with long black hair who hit Ruelas with a metal pipe.

Castrejon told police that after the black pickup truck passed them, he, Ruelas, and Valdez decided to walk toward Castrejons parents house. When they arrived at Fifth and Butte Streets, the trio saw four or five men, who jumped them. One of the men hit Castrejon with a stick.

Analysis

Viewed in this light, defendants admission that he participated in the fight is quite damning. If the jury credited the prosecution witnesses, and apparently it did, defendants statement provided a link otherwise missing from the evidentiary chain: it identifies him as one of the aggressors in a fight that erupted after Hernandez taunted the Sureos with gang signs. When the Sureos arrived at Hernandezs house to retaliate, the Norteos were waiting for them, armed with tools, bats, pipes, and sticks.

This is not to ignore the evidence that the Sureos were also itching for a fight and had designs on defendant and his band of brothers. Those intentions, however, did not cleanse defendants mind of criminal intent. Though he claims to have been roused from his sleep to engage in an impromptu act of self-defense, the jury reasonably could have found that defendant acted in concert with Ignacio and Hernandez to mount a preemptive strike, a fight in public for the benefit of their gang.

It does not matter that none of the witnesses identified defendant as a participant in activities earlier in the evening. Further, the jury was not compelled to accept defendants statement on an all-or-nothing basis; it could choose to believe his admission that he participated in the fight while rejecting as incredible his claim of self-defense. The jury could then consider the evidence of other witnesses as to how the brawl escalated from an exchange of words and gestures between members of gangs with a history of hostility into a near-deadly confrontation with makeshift weapons. A determination that defendant, a self-professed Norteo, participated in the fight with the intent to aid his fellow gang members, including Ignacio, as they engaged in combat is not a stretch. It is a reasonable inference from the totality of the evidence.

Defendant argues the Sureos testimony does not contradict his version of events, because none of the Sureos identified him as one of the Norteos who awaited them at Hernandezs house. It does not matter. Defendant told Officer Kain he ran outside after hearing the Sureo gang slogans as three or four Sureos rushed the four people at the Hernandez house. Whether the jury rejected defendants testimony and believed him to be one of the Norteos waiting for the Sureos to arrive, or accepted his testimony and believed he joined the fray after they arrived, defendants own testimony puts him in the thick of things. Defendant may believe [t]his evidence suffers from a complete absence of proof of any criminal intent on his part. However, it is only his carefully edited and construed version of the evidence that is so afflicted.

Conclusion

Under principles of aider and abettor liability, if a proper evidentiary foundation is laid, a defendant can be held criminally responsible not only for violation of the target offense but for any crime that is a natural and probable consequence of the target crime. (Prettyman, supra, 14 Cal.4th at pp. 260-263.) The escalating violence in this case was clearly foreseeable. Not even ignorance of Ignacios possession of an aluminum bat would preclude a finding that the crimes committed were a natural and probable consequence of the fighting. (People v. Montes (1999) 74 Cal.App.4th 1050, 1054-1056.) Defendants claim that criminal purpose and intent -- critical elements of the evidentiary foundation for aider and abettor liability -- are missing is at odds with the evidence.

IV. The Admissibility of Codefendant Ignacio Mendozas Statement

Defendant argues the trial court erred in admitting codefendant Ignacios statement describing the beating of Valdez. Even though the court redacted the statement and admonished the jury not to consider it as evidence against defendant, defendant claims these efforts did not cure the error. Defendant contends the error was prejudicial on count I because the statement provided the sole evidence of an intent to kill, a necessary element of attempted voluntary manslaughter.

Background

Out of the jurys presence, the prosecutor made an offer of proof as to the out-of-court statement to Detective Allison by Ignacio concerning the beating of Valdez. In ruling on defendants objections to Ignacios statements to Allison, the trial court stated it doesnt want to even hear the word Johnny [Hernandez] when these statements are eliminated [redacted]. [] . . . [] No references to Johnny at all. The court also stated: . . . I think it is appropriate that all of those statements have that admonition, all of the statements are admissible only as to the defendant who makes them . . . .

Prior to Allisons in-court testimony, the court instructed the jury: This witness may be testifying to a number of things, but one of the things that I anticipate he will testify to are certain statements of each defendant. The statements of each defendant may only be used and may only be considered by you as to that defendant. You may not consider a statement of one defendant against another defendant. So you have to kind of put your mind in that mental compartment where when you hear his testimony regarding a statement by a defendant, it can only be considered as to that defendant and not any other defendant. And that would apply not only to this witness, but it would apply to any other witness the People may offer that testifies as to statements.

Allison stated Ignacio gave differing versions of events. At first, Ignacio completely denied being involved in the fight. Eventually, he admitted being at the fight and boxing with a Sureo. Ignacio stated he might have broken someones arm because he heard a pop as he held the arm. He also said there was a person on the ground whom he kicked in the head, and there was a lot of blood.

Officer Kain also testified regarding Ignacios statements to officers. Ignacio told Kain he hit Valdez with a bat. After Valdez fell to the ground, Ignacio hit him six more times in the back of the head. Ignacio initially denied he was trying to kill Valdez but eventually admitted his actions could have done so.

At the end of trial, the court instructed the jury as follows: Evidence has been admitted against one or more of the defendants and not admitted against the others. At the time the evidence was admitted, you were instructed that it could not be considered by you against the other defendants. Do not consider the evidence against the other defendants.

Evidence has been received of a statement made by a defendant after his arrest. At the time the evidence of this statement was received, you were instructed that it could not be considered by you against the other defendants. Do not consider the evidence of this statement against the other defendants.

Certain evidence was admitted for a limited purpose. At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.

Discussion

The admission of Ignacios statement raises issues of first impression regarding the confrontation clause generally and, in particular, the United States Supreme Courts exegesis of the provision in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Prior to Crawford, the Supreme Court expressed its disapproval of rules permitting the admission in a joint trial of a defendants confession implicating his codefendant (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton) -- unless the incriminatory references to the codefendant were redacted and appropriate admonishments given to the jury (Richardson v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176] (Richardson)).

Because Ignacios statement does not expressly implicate defendant, neither Brutons prohibition nor Richardsons curative procedure would seem to apply in the present case. Arguably, however, the testimony is inadmissible nonetheless because it is adverse to defendants interests and constitutes testimonial hearsay within the holding of Crawford. Two issues of first impression are presented: 1) whether such a statement is indeed testimonial hearsay even though it does not explicitly refer to defendant; and 2) if so, whether the Richardson sanitizing procedure can be applied so as to permit its introduction against Ignacio in a joint trial with his codefendants.

As interesting as these issues might be, we decline the opportunity to resolve them. Neither side contends Ignacios statement is admissible against anyone but Ignacio. Indeed, as noted, the jury was instructed not to consider the statement in determining defendants guilt. From our review of the record, once Ignacios statement is removed from the evidentiary mix, there is not sufficient evidence to support the jurys verdict of attempted manslaughter. This evidentiary lacuna renders moot the legal issues raised by defendant.

Attempted manslaughter requires evidence that the perpetrator had a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. (CALJIC No. 6.00.) The verdict reflects the jurys determination that Ignacio was the actual perpetrator. In finding Ignacio guilty, the jury could properly rely on his confession, which is particularly damning. Ignacio stated he hit the victim six times with a bat, admitting the force of the blows could have killed him.

Unlike the evidence against Ignacio, there is no evidence that defendant intended to kill. At oral argument, the Attorney General insisted the prosecution was not compelled to identify the direct perpetrator or establish his intent to kill. Rather, the prosecution was required to show only that the Norteo participants in the fight intended to commit an assault that, under the circumstances, would naturally and probably result in a fatality; that burden was easily met by evidence that the Norteos lured their hapless victims into a trap and attacked them with sticks and pipes. The Attorney General is wrong.

It is important to bear in mind that an aider and abettors liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also for any other offense that was a natural and probable consequence of the crime aided and abetted. (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), quoting Prettyman, supra, 14 Cal.4th at p. 260.)

[O]utside of the natural and probable consequences doctrine, an aider and abettors mental state must be at least that required of the direct perpetrator. . . . [T]he prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. [Citation.] (McCoy, supra, 25 Cal.4th at p. 1118, quoting Prettyman, supra, 14 Cal.4th at p. 259.)

Given the absence of evidence that defendant intended to kill the victim, his conviction of attempted manslaughter must necessarily rest on the natural and probable consequences doctrine. Under the doctrine, it is not necessary for the prosecution to establish that defendant intended to kill Valdez, or even that defendant was aware of Ignacios intent to do so. However, the prosecution must show that defendant knowingly and intentionally aided and abetted the crime of assault, and that the crime of attempted manslaughter was a natural and probable consequence of that assault. This requires the prosecution to establish that one of the accomplices committed the crime of attempted manslaughter. One cannot aid and abet a crime that was not committed.

People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), a case heavily relied on by the Attorney General, does not suggest otherwise. In Montes the court held attempted murder was a foreseeable consequence of an altercation that began with shouting and an assault with a chain. The court noted the great potential for escalating violence during gang confrontations and that [w]hen rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities . . . . (Id. at p. 1056.) The same could be said about the present case. However, the tricky evidentiary issues involved in our case were not present in Montes, where the actual perpetrator was identified and his guilt determined during the case against Montes, his accomplice.

The record before us reveals that the only evidence of intent to kill, an essential element of attempted manslaughter, rests with Ignacio and is embodied in his confession. However, this statement cannot be considered in deciding defendants guilt.^[6] Thus the record is bereft of evidence essential to support the jurys verdict and we are compelled to reverse defendants conviction of attempted manslaughter.

V. Prosecutorial Misconduct

Defendant joins codefendant Hernandez in contending the prosecutor twice committed prejudicial misconduct during closing argument. Although defense counsel failed to object to these comments by the prosecutor, defendant claims any objection would have been futile. In the alternative, he contends defense counsel performed ineffectively in failing to object.

Defendant faults the prosecutor for two specific commentaries. In the first, defendant claims the prosecutor committed misconduct in stating that Castrejons, Ruelass, and Valdezs time will come.

During closing argument, the prosecutor stated: One of the things you are probably asking yourself right now is: Why arent the Sure[]os on trial? You notice they are all in jail clothes when they testified; their time will come. Raphael Castrejon is a Sure[]o; Ramon Ruelas, Sure[]o; Zeferino Valdez, Sure[]o. So we have three Norte[]os and three Sure[]os and they get together and have a little fight. By this stage of the game, I expect youre also all saying to yourselves, I dont know who did what. That is the beauty of this type of prosecution. It just doesnt matter who did what because basically the gang is an entity. They act as one. Whatever one does, the other is also responsible for, that is how aiding and abetting works.

Defendant argues the prosecutor reinforced the future culpability of the Sureos when she stated: The Sure[]os are not on trial today. No one on the prosecution team is standing up for the Sure[]os. They are just as guilty as the Norte[]os are.

The court instructed the jury that they should not take into account why any other perpetrator was not joined with defendants. (CALJIC No. 2.11.5.) According to defendant, the prosecutors comments intruded upon this instruction by impliedly promising the jury that the Sureos would be prosecuted for the same crime. Defendant claims no objection or request for an admonition could have cured the harm caused by these comments.

A prosecutor commits misconduct when he or she uses deceptive or reprehensible methods in an effort to persuade the jury. When the claim of misconduct focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Samayoa (1997) 15 Cal.4th 795, 841.)

To preserve on appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition. Otherwise, the claim is reviewable only if an objection would have been futile or would not have cured the harm caused by the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 753 (Welch).)

Defendant argues the prosecutors comments were an attempt to reassure the jury that if it found the Norteos guilty, the Sureos too would be held responsible at some future date. The comment appealed to the jurors sense of fairness and made it easier to convict defendants. The People argue the comment that the Sureos time will come was patently harmless and that the prosecutor was merely trying to introduce the concept of principal liability.

We are not so sanguine about the comments, which in our view verge on misconduct. Although the court instructed the jury not to consider why any other perpetrator was not also on trial, the prosecution directed the jurys attention to the retribution awaiting the Sureos.

In the second instance of alleged misconduct, the prosecutor stated, during closing argument: Like it or not, we can no longer ignore the fact that there are gangs in Tehama County. It used to be a big city thing, it may have been the reason why some of you moved up here. To get away from that sort of thing. There are a number of documented Norte[]os and Sure[]os in Tehama County and some of them have gone to prison for some serious crimes, [during] jury selection several of you indicated that you had an awareness that there was gang activity in our communities, in our area. And they are here, they are no longer a big city problem, they are our problem and we have to deal with them.

A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of societys woes is far too heavy a burden for the individual criminal to bear. (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149, quoting United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441.)

The prosecutors comments veered dangerously close to asking the jury to convict defendant in an effort to rid the county of criminal gang activity. It may be true, as argued by the People, that the remarks were a comment on the reality -- however sad -- that gangs have insinuated themselves into the very fabric of modern life and are not merely a problem confined to the inner cities or other metropolitan communities. However, the comments were more than that; they linked defendant to a local scourge and urged the jurors to send the gangs a message.

Nonetheless, though we find the comments by the prosecutor concerning the Sureos eventual prosecution and the desirability of removing gangs from the community completely inappropriate, they do not amount to misconduct. The trial court instructed the jury pursuant to CALJIC Nos. 1.00 and 1.02 that the attorneys statements were not evidence, that it must follow the law as given by the court and ignore contradictory statements by the attorneys, and that it must not decide the case based on sympathy or prejudice.

We presume the jury relied on these instructions, not the attorneys arguments, in convicting defendant. Under the courts instructions, the jury could completely disregard all counsels arguments. In addition, we presume the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. (People v. Morales (2001) 25 Cal.4th 34, 47, quoting People v. Sanchez (1995) 12 Cal.4th 1, 70.)

We also note that defense counsel failed to object and request a timely admonition at trial. If the defense fails to object, a claim of prosecutorial misconduct is reviewable only if an objection would have been futile or would not have cured the harm caused by the misconduct. (Welch, supra, 20 Cal.4th at p. 753.) Here, the complained-of comments are not so inflammatory or egregious that a timely admonition would not have cured any resulting harm.

Nor do we find defense counsel performed ineffectively in failing to object to the comment. In order to show ineffective assistance of counsel, defendant must show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. In addition, defendant must show it is reasonably probable a more favorable determination would have resulted had defense counsel performed effectively. (People v. Price (1991) 1 Cal.4th 324, 440.)

Given the comments complained of, defense counsels failure to object does not support a claim of ineffective assistance. The prosecutors brief remarks about the possibility of looming Sureo punishment and ridding the community of gangs constituted only a small fraction of the total argument. The rest of the argument focused on the evidence, and the remarks objected to by defendant pale in comparison with the evidence against him. Defendant admitted to belonging to the Norteo gang. After initially denying any involvement in the fight, he acknowledged responding to the Sureos gang taunts. Defendant fought with a tall, skinny person. After the fight, defendant went home. Defendants own version of events made him an active participant in the fight with the Sureos. He cannot show that a more favorable determination would have resulted had defense counsel objected to the prosecutors remarks.

VI. Admissibility of Expert Testimony

Defendant joins in codefendant Ignacios argument that the trial court erred by permitting the prosecutions gang expert to testify that, in his opinion, the fight was initiated by the Norteos. Defendant argues that since self-defense was a potential defense to the charges, the expert, by opining on the cause of the fight, usurped the jurys function of deciding who started the fight.

Evidence Code section 801 allows the admission of expert opinion that is [r]elated to a subject that is sufficiently beyond the common experience that the opinion of an expert would assist the trier of fact; and [] . . . based on matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . . (Evid. Code, 801, subds. (a), (b).) The trial court possesses wide discretion to assess the admissibility of expert testimony, a discretion we will not disturb absent a clear abuse of that discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)

At trial, Officer Kain testified that, in his opinion, the fight began when Hernandez drove by the Sureos residence and flashed gang signs. Kain stated Hernandezs action virtually challenged the Sureos to a fight. According to Kain, the gang signs flashed by Hernandez, coupled with the two gangs yelling gang phrases back and forth, led him to believe the fight was gang-motivated.

Defendant finds this testimony an usurpation of the jurys function of determining who started the fight. He admits defense counsel failed to object to Kains testimony. In order to forestall defendants claim of ineffective assistance of counsel, we shall address the argument on the merits.

Defendant argues his self-defense theory rested upon evidence that Valdez was looking to fight Hernandez because he was mad about a prior insult. According to Ignacio, the Sureos started the fight by arriving at Hernandezs house and throwing rocks at defendant, Ignacio, and Hernandez. Although this version of events was undercut by Ruelass testimony that Hernandez had previously driven by Castrejons house throwing gang signs, Ignacio contends the testimony of Hernandezs niece, Yesenia Barriga, that she and Hernandez had been grocery shopping at the time established Hernandez was not driving around town making gang challenges.

Since under the law of self-defense the jury was required to determine who instigated the fight and decide whether the victims response was reasonable, defendant argues it was error for the court to allow Kain to testify about which party he believed started the fight. We disagree.

The use of expert testimony in the area of gang sociology and psychology is well established. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) The culture and habits of criminal street gangs are appropriate subjects of expert testimony. (Gardeley, supra, 14 Cal.4th at p. 617.)

In addition, otherwise admissible expert opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, 805.) This rule, however, does not permit the expert to express any opinion he or she may have. Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided . . . . There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183 (Summers), quoting 1 McCormick on Evidence (4th ed. 1992) 12, p. 47, fn. omitted.)

Defendant argues Kains opinion is just such a statement. In support, defendant cites People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew). In Killebrew, the expert testified that when one gang member possesses a gun, every other gang member knows of the gun and will constructively possess the gun. (Id. at p. 652.) This testimony provided the only evidence to establish the elements of the crime. (Id. at p. 658.)

The appellate court found the trial court erred in admitting the testimony because the expert testified not about generalized habits and customs of gangs, but about the subjective knowledge and intent of each occupant of the car. (Killebrew, supra, 103 Cal.App.4th at p. 658.) The court noted the expert simply informed the jury of his belief about the suspects knowledge and intent, issues properly reserved to the trier of fact. (Ibid.)

The Killebrew court distinguished People v. Muniz (1993) 16 Cal.App.4th 1083 (Muniz). In Muniz, an officer testified that in his opinion the defendant, a known gang member, was preparing to commit a drive-by shooting when he was observed holding a loaded rifle in an illegally parked car with three other known gang members. The officer based his opinion on facts he observed, not on inferences based on an incident to which the defendant was not connect