P. v. Prieto

Filed 12/15/08 P. v. Prieto 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

Defendants Jesus Prieto and Jose Gonzalez were charged and convicted of the murder of Donald Monroe, and the attempted murder of three others.^[1] Additionally, the jury found true numerous enhancements and special circumstances. The crimes were the result of a gang-related drive-by shooting in which Gonzalez was the gunman and Prieto was the driver.

The jury found true four firearms enhancements, and one gang enhancement against Gonzalez. The jury also found true the special circumstance allegations that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle with the intent to inflict death, and that the murder was intentional and perpetrated while Gonzalez was an active participant in a criminal street gang to further the activities of the criminal street gang. (Pen. Code, 190.2, subd. (a)(21), 186.22, subds. (b)(1), (f).)^[2]

The jury found true one firearms enhancement against Prieto, and found true the allegation that Prieto committed the murder for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. ( 186.22, subd. (b)(1).) The jury also found true the special circumstances that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, and that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang to further the activities of the criminal street gang. ( 190.2, subd. (a)(21), 186.22, subds. (b)(1), (f).)

The court sentenced Gonzalez to prison for an indeterminate term of life without possibility of parole for murder with special circumstances, consecutive to the gun-use enhancement of 25-years-to-life with the possibility of parole, consecutive to a determinate term of 61 years 8 months.

The court sentenced Prieto to prison for an indeterminate term of life without the possibility of parole for murder with special circumstances, plus a gun-use enhancement of 25 years to life with the possibility of parole, consecutive to a determinate term of 28 years 4 months.

Both defendants argue the trial courts instruction on the kill zone theory of intent was erroneous, and that the prosecutors argument regarding the kill zone constituted misconduct. We shall conclude both the instruction and the argument were proper.

Gonzalez argues the trial court erred in not giving transferred intent, unanimity, or accomplice instructions, and in allowing evidence of the prior shooting on 43rd Avenue. We shall affirm the judgment against Gonzalez.

Prieto contends the prosecutor committed misconduct in his closing argument and in presenting false testimony, that his trial counsel provided ineffective assistance by failing to request instructions on intoxication and by conceding guilt, and that the trial court erred in the aiding and abetting instructions given. He also asserts cumulative error. We find no error and shall therefore affirm the judgment against Prieto.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of March 6, 2004, two Norteno gang members were shot and killed while attempting to break into a liquor store. That night, their friends and associates held a candlelight memorial at the liquor store. After the memorial, the group gathered at a home on 45th Avenue. About 15 to 50 people were standing around outside the house, talking, smoking, and drinking. Most of them were Nortenos.

A car drove by the house, and someone in the car started shooting. Donald Monroe suffered three gunshot wounds to the back and died at the scene. Sarah Donaldson was shot in the elbow. Julia Gomez was shot in the leg and arm. Jose Perez was hit in the eyebrow.

A videotape someone took at the gathering was entered into evidence and played to the jury. Two separate volleys of gunfire can be heard on the tape. There were at least 12 gunshots in all.

Donaldson thought she saw two cars driving bumper to bumper before she was shot, but she could not describe either car. Gomez saw only one car before she was shot, but could not describe it. Another person at the gathering, Shannon Perez, saw two cars and thought one of them was red. Her husband, Jose Perez, saw a red two-door hatchback that drove up to the house, stopped, and unloaded. He saw a second car after that, but could not describe it. Juan Reyes, who lived across the street, saw a red hatchback drive up and start shooting. He recognized the car as belonging to someone named, Juan.

Juan Chilango Carreon owned a red Isuzu Impulse in March 2004. It was a two-door hatchback. On March 6, 2004, Carreon was hanging out with defendant Prieto and other Sureno gang members in a parking lot on 43rd Avenue when Prieto got a telephone call, then asked to borrow Carreons car. Prieto told Carreon he needed the car to pick up his girlfriend. Prieto left in the car. Carreon waited around an hour and a half in the parking lot, before leaving on foot to go to his girlfriends house on 44th Avenue. The next afternoon, he got his car back. One of the tires was flat, and everything was messed up on the inside. He called law enforcement because he was told the car had been involved in a shooting.

Forty-third Avenue was a hang out for Surenos. On March 6, 2004, Victor Gonzalez was also on 43rd Avenue with other Surenos. They were talking about Nortenos and Surenos. While they were there Jose Tucca Paredes shot up a car.^[3] The occupants of the car were Nortenos. Paredes fired about five or six shots at the car, then gave the gun to defendant Jose Evelio Gonzalez. After the shooting on 45th Avenue, defendant Gonzalez told Victor Gonzalez he shot the Chapetes. Chapetes is a term for Nortenos.

Two weapons of different calibers were involved in the 45th Avenue shooting. The shots that killed Monroe were from a 9 millimeter semiautomatic. All the 9 millimeter bullets recovered, including the bullets recovered from Monroes body, were fired from the same weapon. Nine millimeter semiautomatic casings were found both at the scene on 45th Avenue and at 43rd Avenue. The 9 millimeter casings at the two locations were fired from the same weapon.

Detective Daniel Cabral interviewed defendant Prieto on March 12, 2004. Prietos initial story was that he went home after he borrowed Carreons car to go to his girlfriends house. He originally denied any knowledge of the shootings at either 43rd or 45th Avenues. He also indicated he had been so intoxicated he did not remember much of anything. Although he initially denied knowing defendant Gonzalez, he eventually admitted he knew him and admitted he knew he was a Sureno.

Prieto admitted driving Carreons red Isuzu Impulse to a location on 45th Avenue, where he knew Nortenos hung out. Defendant Gonzalez was in the front passenger seat, and Juan Borja was in the back seat. He saw people gathered in the street at 45th Avenue. Someone in the car said, There they are. There they are. He made a left-hand turn, and once he was near the crowd, defendant Gonzalez fired a gun. Prieto thought there had been approximately three shots fired in return, but never indicated he thought the Nortenos had fired first. Prieto at first told Detective Cabral that he was not sure if there was a gun in the car, but as they continued to talk, he admitted he had seen a gun.

Detective Cabral conducted an interview of defendant Gonzalez on March 23, 2004. Gonzalez admitted to Cabral that he had been on 43rd Avenue on the evening of March 6, 2004, and had seen the shooting there. He also admitted being a passenger in Carreons red Isuzu with defendant Prieto. He admitted being the shooter who fired at the house on 45th Avenue. He fired the gun because he was trying to scare the people, and because they had called him a derogatory term for Surenos as he drove by. He never indicated he shot the gun because the people on 45th Avenue were shooting at him. He did, however, indicate he heard return fire after he fired.

Detective Ron Aurich, an expert on Hispanic gangs, testified that in his opinion, Prieto was an active participant in a Surenos gang. His opinion was based, in part, upon the fact that a Norteno shot off one of Prietos fingers two years before the 45th Avenue shooting. Detective Aurich also testified that in his opinion Gonzalez was a member of the Surenos gang.

DISCUSSION

Joint Contentions

I

Kill Zone Instruction

Defendants argue the instruction given on the kill zone theory, CALCRIM No. 600, was erroneous because attempted murder requires an intent to kill, but the instruction given referred to an intent to harm, not an intent to kill. They claim their convictions for attempted murder must be reversed because of the error.

Defendants were charged and convicted of the attempted murders of Julia Gomez, Sarah Donaldson, and John Doe.^[4] In People v. Bland (2002) 28 Cal.4th 313, 327, the Supreme Court explained that the mental state required for attempted murder differs from that required for murder. A conviction for murder may be had upon a finding of implied malice-conscious disregard for life, while attempted murder requires an intent to kill. (Ibid.) Likewise, a theory of transferred intent will not support a conviction for attempted murder. (Id. at p. 328.)

However, a theory of concurrent intent, or a kill zone theory may still permit a person who shoots a group of people to be punished for the actions against the group. The Supreme Court, quoting Ford v. State (Md.Ct.App. 1993) 625 A.2d 984, 1000-1001, explained as follows:

The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. . . . [C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a kill zone to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (Id. at pp. 329-330.)^[5]

CALCRIM No. 600 is based on the kill zone theory set forth in Bland, supra, and the jury was given the instruction as follows:

A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. In order to convict the defendant of the attempted murder of Sarah Donaldson, Julia Gomez, and John Doe, the People must prove that the defendant not only intended to kill Donald Monroe but also either intended to kill Sarah Donaldson, Julia Gomez, and John Doe, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Sarah Donaldson, Julia Gomez, or John Doe or intended to [kill] Donald Monroe by harming everyone in the kill zone, then you must find the defendant not guilty of attempted murder of Sarah Donaldson, Julia Gomez, and John Doe. (Italics added.)

Defendants object to the use of the word harming and argue an intent to harm, as opposed to an intent to kill, is akin to implied malice, which will not support an attempted murder conviction.

We rejected the same claim in People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396. Gonzalez argues People v. Bragg is distinguishable because the Bragg jury received supplemental instructions on the meaning of the kill zone, and because in this case the prosecutor committed misconduct by arguing to the jury that it was unnecessary to specifically intend to kill the people in the kill zone.

In reviewing the claim of error, we inquire whether a reasonable juror would apply the instruction in the manner suggested by defendant. [Citation.] (People v. Bragg, supra, 161 Cal.App.4th at p. 1396.) We conclude that no reasonable juror would have construed the instruction as permitting a conviction for attempted murder premised upon an intent to harm the victims rather than an intent to kill them. The jury here was instructed in CALCRIM No. 600 that a conviction for attempted murder of a person required the People to prove that defendant intended to kill that person. The court also instructed that the People were required to prove that the defendant took direct, but ineffective steps towards killing another person[,] and that [a] person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. We determine the correctness of jury instructions from the entirety of the instructions, and not from consideration of parts of an instruction or from a particular instruction. (People v. Bragg, supra, at pp. 1395-1396.)

We also credit that jurors will interpret instructions with intelligence and common sense. (People v. Bragg, supra, 161 Cal.App.4th at p. 1396.) The only way that defendants could kill Monroe by harming everyone in the kill zone is if the harm inflicted was fatal harm, because nonlethal harm would not result in Monroes death. If defendants intentionally inflicted lethal harm on everyone in the zone, it reasonably follows that they necessarily intended to kill everyone in the zone.

II

Prosecutors Kill Zone Argument

Defendants claim the prosecutor committed misconduct when he argued the kill zone theory to the jury. No timely objection to the argument was made, thus forfeiting the argument on appeal. (People v. Farnum (2002) 28 Cal.4th 107, 167.) In any event there was no misconduct.

The argument defendants challenge occurred when the prosecutor was attempting to explain the concept of the kill zone. The prosecutor argued separately to each jury. To the Gonzalez jury, he argued:

I want to talk about Counts Two, Three and Four, [attempted murder] quickly. Under the law, the law doesnt require that we prove that the defendant intended to kill Sarah Donaldson herself or Julia Gomez herself or anyone else in that crowd for that matter. What the law says is when you create an atmosphere -- or as the law puts it -- a kill zone, when you fire eleven shots from a semiautomatic 9mm pistol into a crowd, you created a kill zone, a zone formed for everybody in it. And he can be found guilty for attempted murder of everyone in that kill zone. That is why you have Sarah Donaldson pled as a victim of attempted murder. Thats why you have Julia Gomez pled as a victim of attempted murder.

You will finally get a count for a person named John Doe, a person with no name. You can put whatever name you want in there. You can look at that video. Put the person with the red hat, the person in the white T-shirt, in the black T-shirt. Every one of those people that are in that driveway is represented by Count Four: John Doe. You dont need a name. You have a face. You have a person. There were about twenty kids out there that day. Every one of them fits in that count because they were all in the zone marked.

Later, in arguing to the Prieto jury, the prosecutor argued:

The law says, in regards to attempted murder, you dont have to be attempting to kill Sarah Donaldson because there was some vendetta against Sarah Donaldson. The law says when you create this thing called the kill zone, if you create a zone in which you open fire on someone, you are responsible for attempted murder. They used to call this something called transferred intent. That is not what applies here, but that is the idea that is being represented here. You cant just shoot up a crowd and come to court and say, I wasnt trying to kill Sarah Donaldson, I was trying to kill a Norteno that was out there. You cant do that.

When this is referred to as a kill zone or zone of harm everyone within that zone of harm is a victim. And you will hear an instruction on that when you talk about Mr. Gonzalez shooting into this crowd. If they want to go into the theory the second shooter creates the kill zone, it doesnt matter, because he is still aiding and abetting in the sense he is part of this entire group and in his car is the shooter. And the second car, if you want to buy into that idea, is the shooter. But clearly, Mr. Gonzalez is the shooter. And I said it over and over again.

Gonzalez argues the prosecutor misstated the law by telling the jury that his intent was irrelevant, and that all that was necessary was for the bystanders to be within a particular spatial zone. Prieto argues the prosecutor misstated the law because the kill zone theory is not simply another name for transferred intent, a theory that does not apply to attempted murder. Both defendants analogize this case to People v. Anzalone (2006) 141 Cal.App.4th 380, a case in which the court found the prosecutors argument was erroneous and misleading. (Id. at p. 393.)

Contrary to Gonzalezs claim, the prosecutor did not tell the jury that Gonzalezs intent was irrelevant. Instead, he attempted to convey that the intent to kill did not have to be directed to a specific individual in the kill zone before defendant could be convicted of attempted murder. The argument was part of the prosecutors explanation that defendant could be convicted of attempting to murder a John Doe. If the jury believed defendant had to have intended to kill only a specific, named individual, he could not have been convicted of attempting to kill an unidentified individual.

As to Prietos argument, while the theory of transferred intent is not the same as the kill zone theory, and is not applicable to provide the requisite mental state for attempted murder, the prosecutor did not define the transferred intent theory to the jurors, and it is unlikely they were aware of the technical legal differences between the theories of transferred intent and concurrent intent. The jurors were not informed of the definition of transferred intent, thus they were not misled by the prosecutors argument.

Finally, People v. Anzalone, supra, 141 Cal.App.4th 380, is inapplicable because the jury in this case was adequately instructed on the prosecutions theory of intent. In Anzalone, the defendant fired two shots at a group of four men. (Id. at p. 390.) The trial court instructed the jury that attempted murder required a specific intent to kill another human being, but gave no kill zone instruction. (Id. at pp. 390-391.) The prosecutor argued to the jury that it could reach four counts of attempted murder even though there were only two gunshots because the law says there is something called the zone of danger. He argued, [a]nytime someone is within the zone of danger, whether it be one, two, three or twenty people, somebody indiscriminately shoots towards a crowd of people, everything in that zone of danger qualifies. (Id. at p. 391.)

The court found the problem to be that the prosecutors argument was incomplete, and the trial court had given no instruction on the theory on which the prosecution relied. (People v. Anzalone, supra, 141 Cal.App.4th at p. 392.) The prosecutor had failed to explain what constituted the zone of danger, how it related to the element of intent, that the zone is defined by the nature and scope of the attack, or that the attack must allow the reasonable inference that the defendant intended to kill the primary victim by killing everyone in that victims vicinity. (Ibid.)

In this case, the instruction on concurrent intent given by the trial court fully explained the theory to the jury. There was no danger here that the jurys only understanding of the theory of concurrent intent would come from the prosecutors argument. The prosecutors reference to the kill zone theory in this case, and his explanation of the theory was not damaging, as it was in Anzalone, because the jury was properly and fully instructed on the theory. Moreover, the jury was instructed that if the attorneys comments conflicted with the courts instructions, it must follow the courts instructions. We presume the jury understood and followed the courts instructions. (People v. Gray (2005) 37 Cal.4th 168, 231.)

Gonzalezs Contentions

III

Transferred Intent Instruction

Gonzalez argues the trial court erred when it did not give a sua sponte transferred intent instruction.^[6] He argues such an instruction would have worked to his benefit with respect to his imperfect self-defense position. He argues the jury may have believed that he initially shot in the air to scare, but when there was return gunfire, he unreasonably, but in good faith, believed he had to shoot the gunman to defend himself, but he hit an unintended target. We shall conclude no transferred intent instruction was necessary.

In People v. Mathews (1979) 91 Cal.App.3d 1018, 1023, we explained that the theory of transferred intent, establishes that ones criminal intent follows the corresponding criminal act to its unintended consequences. Thus, if A shoots at B, intending to kill B, but instead the bullet strikes C, then A has committed a criminal act as to C. In such instance, the malice follows the blow and the criminal intent of A to harm B is transferred to C. (Ibid.)

In People v. Mathews, supra, we held that the theory of transferred intent applied to self-defense circumstances, such that self-defense, is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander. (91 Cal.App.3d at p. 1024.) Defendant seeks to extend the holding in People v. Mathews to the facts here, which involve not self-defense, but imperfect self-defense.

Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Unlike self-defense, imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter. (People v. Michaels (2002) 28 Cal.4th 486, 529.) The trial court is required to give a sua sponte instruction on imperfect self-defense where the evidence is substantial enough to merit its consideration by the jury. (Ibid.)

The People argue there was no substantial evidence to support the notion that defendant was fired upon first or perceived himself to be in danger; therefore, the trial court was under no duty to give the instruction. We conclude that even if the evidence supported a theory of imperfect self defense against an unintended victim, the jury was adequately instructed without a transferred intent instruction.

The crux of defendants argument is that the jury might have believed that he fired at someone in the crowd who shot at him first, in the actual, but unreasonable belief that he was in imminent danger, and he hit Monroe instead of the shooter. To make a convincing case of instructional error, he must show that the instructions given by the trial court precluded the jury from applying the theory of imperfect self defense because the jury was instructed the theory applied only if Monroe was the person defendant intended to shoot. The jury was not so instructed.

The jury was instructed that a killing that would otherwise be murder would be voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. The court instructed: The defendant acted in imperfect self-defense if (1) the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury and (2) the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger, but (3) at least one of those beliefs was unreasonable. At no point in the instruction was the jury told that the theory would not reduce murder to manslaughter unless the person defendant killed was the person he intended to shoot. The instruction does not require the person killed to be the person from whom the perceived threat originated.

We reached a similar conclusion in People v. Mathews, supra, 91 Cal.App.3d 1018. In that case, we held that the theory of transferred intent was applicable to self-defense circumstances, but concluded the trial court had no duty to so instruct the jury sua sponte. (Id. at pp. 1024-1025.) The defendant asserted that the instructions given had precluded the application of the self-defense doctrine in that case, where the defendant had shot and killed an innocent third party, rather than the person who had threatened her. (Id. at p. 1025.) We held: To the contrary, the instruction merely advises that homicide is justified when the unlawful aggressor is the person killed. It does not state that homicide is unjustified where the unlawful aggression of one results in the inadvertent death of another. Moreover, that [sic] court did instruct (CALJIC No. 5.30) that [if] the right of self-defense exists, it is a complete defense to any crime committed during the exercise of the right. (Ibid.)

Here, too, the jury was not instructed that the theory of imperfect self-defense would not reduce murder to manslaughter if the perceived threat of one person resulted in the death of another. The imperfect self-defense instruction given, and quoted above, was sufficiently broad to include a situation in which Monroe was not the intended target of defendants gunfire. The trial court did not err in failing to give a sua sponte instruction on transferred intent.

IV

Unanimity Instruction Not Required

Gonzalez argues the trial court erred when it failed to instruct that the jury must unanimously agree on which victim was intended as to the attempted murder of John Doe. We disagree. No unanimity instruction was required because the jury did not have to find that Gonzalez intended to kill a particular victim.

To establish the crime of attempted murder, the prosecution had the burden of proving that Gonzalez took at least one direct but ineffective step toward killing another person, and that he intended to kill that person. (CALCRIM No. 600.)

In determining whether Gonzalez harbored the specific intent to kill his victim, the jury was entitled to infer his intent from the circumstances surrounding his actions. (People v. Ferrell (1990) 218 Cal.App.3d 828, 834.) Gonzalez, who was a validated member of the Surenos gang, armed himself with a gun immediately after witnessing the shooting of a Nortenos vehicle that had intruded on Surenos turf, and within a short period of time drove to a location that was known to be a hang out for rival Nortenos, and shot a rapid stream of bullets into the crowd that was gathered there. A reasonable inference from these circumstances was that he intended to kill any person unlucky enough to be in the path of his bullets. Indeed, no other intent is reasonably inferable from such facts.

It was not necessary that the prosecution prove Gonzalez knew the name of his victim, or even that he had any particular victim in mind. In theory, Gonzalez could have been charged with as many counts of attempted murder as there were people within the range of his bullets. Any of the Nortenos and their associates gathered on 45th Avenue that night, and within the range and direction of Gonzalezs gunfire were his intended victims. Because it was unnecessary for the jury to find he intended to kill a particular person, no unanimity instruction was necessary.

V

Evidence of Prior Shooting

The prosecution moved in limine, and over Gonzalezs objection, to admit evidence of the shooting on 43rd Avenue that occurred shortly before the 45th Avenue shooting. The prosecutor argued the evidence was admissible to show motive, knowledge, and identity. Specifically, the prosecutor argued the evidence showed the motive for the 45th Avenue shooting was gang-related, that even if Gonzalez did not fire the fatal shot, he had the requisite knowledge of the shooters criminal purpose to be an aider and abettor, and that the gun used in the 45th Avenue shooting was the same one used at 43rd Avenue and given to Gonzalez.

The proof represented to the trial court in conjunction with the in limine motion was that the 43rd Avenue shooting occurred approximately two hours before the 45th Avenue shooting, and that it happened when some Hispanic males in a white car wearing red shirts were shot at by a Surenos gang member by the name of Jose Paredes. Defendants Prieto and Gonzalez were drinking with Paredes and other Surenos at 43rd Avenue on the day of the shooting. Defendant Gonzalez either gave the gun to Paredes, or showed him where it was.^[7] After Paredes shot at the white car, he said, Fuck those Nortenos. After Parades used the gun at 43rd Avenue, he gave it back to Gonzalez. The gun casings found at 43rd Avenue matched some of the gun casings found at 45th Avenue.

The prosecution argued that defendants intended to argue the fatal shot came from the second car, and that the 43rd Avenue incident was important to determining their culpability under an aiding and abetting theory. The prosecution also argued the evidence was relevant to show gang culture.

The trial court found the evidence admissible to establish identity, motive (both individually and within the ambit of the gang culture), and intent for the purpose of aiding and abetting. We review this determination for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Williams (2008) 43 Cal.4th 584, 634-635.)

A defendants prior bad conduct is inadmissible to prove the defendants conduct on a specific occasion unless it is relevant to some fact in issue other than the defendants disposition, and its probative value outweighs any prejudicial effect. (People v. Gunder (2007) 151 Cal.App.4th 412, 416.) Gonzalez argues the evidence was not relevant to show motive or intent, and that the evidence was cumulative as to identity.

Gonzalez argues there was no evidence the first incident motivated the second, since he was not the gunman in the 43rd Avenue shooting, and since the Nortenos in the white car did not shoot at the Surenos on 43rd Avenue. While it is true the incident on 45th Avenue was not in retaliation for an earlier shooting, there was expert testimony that 43rd Avenue was Sureno territory, that Hispanic gangs are territorial, and that respect among them is turf-oriented. From this evidence the jury could conclude that the shooting on 45th Avenue was motivated in part by retaliation for an intrusion into Sureno territory.

We reject Gonzalezs argument that the evidence was not relevant to show gang culture because gang culture is a subject of expert opinion. The evidence was admissible not to show gang culture per se, but to show motive in the context of the expert testimony regarding gang culture. For the same reasons discussed, the prior incident was relevant to the defendants intent.

Gonzalez does not argue that the evidence of the 43rd Avenue shooting was not relevant to establish identity, but instead argues it was cumulative. He claims the evidence was cumulative because the only person to place him at the 43rd Avenue shooting was Victor Gonzalez, who was also the only person to place him at the scene of the 45th Avenue shooting. Defendants argument is confusing. We fail to see how the evidence is cumulative. The prior incident put defendant Gonzalez in possession of the weapon that fired the bullets into the crowd at 45th Avenue. Thus, it was crucial that the jury know the gun had been used by Paredes in a prior shooting, and was given to defendant a mere two hours before the shooting on 45th Avenue. In any event, the trial court is not required to exclude all cumulative evidence because this is a matter addressed to the trial courts discretion, and we will not reverse on appeal absent abuse of discretion. (People v. Medina (1995) 11 Cal.4th 694, 749.) We find no abuse here.

Gonzalez argues the evidence should have been excluded because it was unfairly prejudicial and constituted a violation of his right of due process. However, evidence is not unduly prejudicial unless it uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Crittenden (1994) 9 Cal.4th 83, 134.) Here, the contested evidence was that another person, not the defendant, shot at a car. There was no evidence anyone was hurt. There was nothing in the evidence that would tend to evoke an emotional bias against Gonzalez. Since the evidence was not prejudicial, it also did not violate defendants due process rights. (People v. Jablonski (2006) 37 Cal.4th 774, 805 [admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair].) The trial court did not abuse its discretion in admitting the evidence.

VI

Accomplice Testimony Instruction

Gonzalez argues there was considerable circumstantial evidence that Victor Gonzalez was an accomplice, and that the trial court erred in failing to instruct the jury that it could not convict on uncorroborated accomplice testimony, and that it must view the testimony of an accomplice with caution.

A defendant may not be convicted upon the uncorroborated testimony of an accomplice. ( 1111.) Whenever an accomplice testifies, the trial court must instruct the jury to consider the accomplices testimony with caution. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111.) To be chargeable with the same offense, the person must be a principal under section 31. (People v. Horton (1995) 11 Cal.4th 1068, 1113.) A principal includes, [a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . . ( 31.) An accessory is not chargeable with the same offense, and therefore is not an accomplice. ( 32; People v. Horton, supra, 11 Cal.4th at p. 1114.)

If the evidence is insufficient as a matter of law to find that a witness is an accomplice, the trial court need not give instructions on accomplice testimony. (People v. Horton, supra, 11 Cal.4th at p. 1114.) Defendant asserts there is evidence from which the jury could conclude that Victor Gonzalez was in the second car that participated in the shooting. However, any such conclusion would be based on speculation. Three eyewitnesses claimed to have seen a second car following defendants car. However, none of these witnesses were able to describe the second car. Victor Gonzalez testified that after Paredes shot at the car on 43rd Avenue, he, Paredes, and someone called Shadow went to Paredess house near 49th Avenue. They stayed there approximately a half-hour, then went to the AM/PM on 47th Avenue to use the phone. After Paredes got off the telephone, he told Victor Gonzalez to go to 45th Avenue. They were on Martin Luther King Jr. Blvd. near 44th Avenue when they heard the shots. They never went down 45th Avenue. They saw the red car come out and take off toward 49th Avenue. They found the other car at 49th Avenue, where they picked up five men, including defendant Gonzalez, and took them home. In the car, defendant Gonzalez said he shot the Chapetes.

Defendants evidence in support of his assertion that Victor Gonzalez was an accomplice is merely speculative. The jury had no more information than that there may have been a second car, and that Victor Gonzalez was told about the drive-by shooting before it happened. There is no evidence that Victor Gonzalez was either a perpetrator or aider and abettor. An aider and abettors liability as a principal depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrators criminal purpose. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) There is no evidence Victor Gonzalez gave such assistance or encouragement. The mere knowledge that the crime was about to be committed did not constitute aiding and abetting. (People v. Weber (1948) 84 Cal.App.2d 126, 130.) The evidence that Victor Gonzalez was an accomplice was insufficient as a matter of law to find that he was an accomplice.^[8]

Prietos Contentions

VII

Prosecutorial Misconduct

During closing argument, the prosecutor discussed foreseeability and argued that shootings were a natural and probable consequence of gang confrontations. He argued that Prieto would try to say he had not intended to kill anyone, and that he thought Gonzalez would shoot into the air or shoot to scare people. The prosecutor argued that if killing someone was a foreseeable or likely consequence of firing a gun, the law would hold an aider and abettor accountable under the theory of natural and probable consequences. Then, quoting extensively from People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), he made the following argument:

I want to read to you a small portion of a case. This fact pattern doesnt apply in our case, but I want you to see how the law treats the idea of natural and probable consequences. And this is based on a fact situation that is somewhat similar, but not quite. What happens in this situation is a bunch of gang members that get together and they decide to go into a rivals turf to commit an actual fight--to commit a fight. And at the end of that fight someone ends up dead. And this person--this defendant was convicted of that homicide. And the Supreme Court of California says, under this day and age of gangs, thats foreseeable.

And here is the word of the Supreme Court. They first address a case called Butts. Butts is a case that occurred decades ago that said originally that you cant apply this theory. But this is the Supreme Courts comment on the foreseeability with regards to gangs. It says, Butts is also more than three decades old and represents a different social [era], when streetfighters commonly relied on fists alone to settle disputes. Thats the olden days. It would just be fights, no guns, no knives. Unfortunately, as this case illustrates in reference to the Montez [sic] case, the nature of modern gang warfare is quite different. When rival gangs clash today verbal talking quickly give way to physical violence and gunfire. No one immersed in gang culture is [un]aware of this reality. And we see no reason the Courts should turn a blind eye to this. Given the great potential for escalating violence during gang confrontation it is immaterial whether one gang member specifically knew another gang member had a gun.

The words of our Supreme Court. In that case it was the same idea. The defense will say, I didnt know he had a gun. We were just going there to fight. The Supreme Court said in that situation things have changed, ladies and gentlemen.

Prieto argues the prosecutor misstated the law and committed misconduct in four respects. First, Montes was not a Supreme Court case. Second, as a court of appeal opinion, Montes could not disapprove People v. Butts (1965) 236 Cal.App.2d 817, which was another court of appeal opinion. Third, People v. Prettyman (1996) 14 Cal.4th 248, 267, a Supreme Court case, actually cited Butts with approval. Fourth, the trial court denied the prosecutors request to instruct the jury on disturbing the peace as a target offense.

Prieto did not object to the prosecutors argument. Failure to object forfeits the claim of misconduct unless the objection and/or the request for an admonition would have been futile, or the admonition would have been insufficient to cure the harm occasioned by the misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) A claim that one of these exceptions applies must be supported by the record, and the defendants ritual incantation that an exception applies is not enough. (Ibid.)

Any misconduct by the prosecutor in incorrectly advising the jury that the authority cited was Supreme Court authority rather that court of appeal authority, or in incorrectly stating the law could have been cured by timely objection and admonition. Moreover, it is doubtful that lay jurors would have understood the significance that the case cited as authority was decided by the Supreme Court rather than a court of appeal, and the prosecutor never told the jury that Montes had overruled Butts.

Prieto claims his trial counsel was ineffective for not raising a timely objection. A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. (In re Ross (1995) 10 Cal.4th 184, 201.) In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]" (People v. Ray (1996) 13 Cal.4th 313, 349.) Moreover, [i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206.) Since this record is silent as to the reason defense counsel failed to object to the prosecutors argument, we must reject defendants claim of ineffective assistance unless there could be no satisfactory explanation.

The failure to object to the admission of evidence, or in this case to move to strike evidence, is a tactical decision that will seldom establish incompetence of counsel. (People v. Huggins, supra, 38 Cal.4th at p. 206.) This was not a case in which there could be no satisfactory explanation for failing to object. In this case, defense counsel elected to directly address the prosecutors remarks himself.

Defense counsel addressed the prosecutors analysis of Montes as soon as he began his closing argument:

Ive got to mention one thing before I get into my presentation. And that is, what the District Attorney was reading a short time ago at the end of his argument. He read you a case of our Supreme Court. Id like to point out to you that that case means nothing in this court. What youre going to hear about the law that you consider in looking at the facts that will be given to you by His Honor. And thats all Im going to ask[,] to completely disregard what you heard about that case. We dont know the circumstances of it. All that you heard was one short paragraph from the holding.

Later, the trial court instructed, [i]f you believe that the attorneys[] comments on the law conflict with my instructions, you must follow my instructions. The trial court then instructed the jury on the theory of natural and probable consequences.

As a matter of trial tactics, defense counsel may well have believed that rather than confuse the jury with the intricacies and hierarchy of judicial authority, he would tell the jury to disregard the prosecutors statement of the law, and rely on the courts instruction regarding the law. We do not find on this record that counsels performance was deficient.

VIII

Misconduct in Arguing Matters Outside Record

Detective Cabral conducted an interview with Prieto during the investigation of the crimes, during which Prieto made several admissions. The videotape of the interview, which was conducted in Spanish, was admitted into evidence, but the English transcript was not.

Detective Cabral testified to Prietos statements during the interview. On cross-examination, he testified that Prieto was aware that there was a gun in the vehicle he was driving. Defense counsel reminded Cabral that at the preliminary hearing, he had said Prieto did not know anyone had a gun. Defense counsel finally got Cabral to agree that Prieto consistently denied knowing a gun was going to be fired from the car he was driving.

On redirect, the prosecutor played a portion of the videotape of Prietos interview for Cabral, after which he asked Cabral, [d]uring the interview did he [Prieto] indicate to you, during the interview itself, that he knew there was a gun in the car or not? Cabral responded, [h]e indicated to me that he was not sure at first. And then as we continued to talk, he said, yes, he had seen a gun before. There was no further cross-examination on this subject.

The prosecutor argued as follows in closing:

. . . I want you to understand the context of the questions asked by Mr. Thommen [Prietos counsel] to Detective Cabral, because there was a portion of . . . Detective Cabrals testimony where he says, Look, the defendant told me he knew the gun was in the car.

Mr. Thommen asked him about his prelim testimony. . . . Didnt you say he didnt know that the gun was in the car? Detective Cabral said it was a mistake. But remember, he said after that, we asked him, after having the opportunity to review this tape, to review the material and before you testified, did he tell you he knew the gun was in the car when the defendant had a gun -- Defendant Evelio. And he said, yes.

Understand this, because then Mr. Thommen, at that point, because -- remember there was a transcript on this. You wont be able to see the transcript, unfortunately. But there was a transcript on this and its all done in English. You saw it. Mr. Holmes referred to it, Mr. Thommen referred to a transcript of the actual interview itself. And if there was any questions -- because remember it was recorded -- in regards to what was said during the interview you would best believe Detective Cabral [sic] would have asked about that. But you heard no question from Mr. Thommen coming up and saying, Well, lets go back to the interview itself. Maybe you made a mistake during the prelim when you said no. Show me where in the transcript it says that. He couldnt ask that because it was there. It was on videotape. The defendant said, I knew he had a gun.

So all he could do to question Detective Cabral was to the mistake that he made at the prelim. Nothing to do with whether or not it was in the videotape or not, because he had the transcript he could have asked him about and he didnt. But ultimately remember, it doesnt matter. But he knew the gun was in the car.

Defense counsel did not object to the prosecutors argument. Defendant argues the prosecutors statements amounted to unsworn testimony about the contents of the transcript of Prietos interview, and was violative of his Sixth Amendment rights to confrontation and cross-examination.

For reasons already stated, defendants failure to object to the prosecutors argument forfeited the issue on appeal. In any event, we reject defendants characterization of the prosecutors statement as giving unsworn testimony. The prosecutor was not purporting to tell the jury what was in the transcript. Instead, he was arguing that if, in fact, Prieto had not admitted to Cabral that he knew about the gun, Prietos trial counsel would have impeached Cabrals testimony with Prietos own statement, which was on videotape. The jury could infer from this fact that Prieto had, as Cabral testified, known about the gun, and that any statement Cabral made otherwise during the preliminary examination was simply a mistake. The prosecutor was not asserting a fact not admitted into evidence, or implying that he knew facts that were not in evidence. Accordingly, there was no misconduct.

IX

Presentation of False Testimony

Prieto argues the prosecutor presented, or failed to correct, the false testimony of Cabral, and that this was a violation of the right to due process. The argument is directed to Cabrals testimony on redirect examination. On cross-examination, defense counsel elicited an affirmative response from Cabral in answer to the question, did Prieto consistently den[y] knowing that any gun was going to be fired from the car he was driving . . . until it actually happened?

On redirect-examination, the prosecutor played a portion of the videotaped interview for Cabral, and elicited from Cabral that he had reviewed the videotape prior to testifying and had read the transcript of the interview. The prosecutor then asked: During the interview did he [Prieto] indicate to you, during the interview itself, that he knew there was a gun in the car or not? Cabral answered: He indicated to me that he was not sure at first. And then as we continued to talk, he said, yes, he had seen a gun before. In fact, neither of Cabrals statements, i.e., that Prieto consistently denied knowing anyone in the car had a gun, or that Prieto said he had seen a gun before, was completely accurate. Prieto at first maintained he did not know about the gun.^[9] He then said he was not sure. Finally, when asked whether he thought Gonzalez had a gun, he admitted, Maybe yes. I think that maybe yes.

[A] conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict . . . . (U.S. v. Bagley (1985) 473 U.S. 667, 680, fn. 9 [87 L.Ed.2d 481, 493].) However, Cabrals testimony was not actually false. Instead, Cabral made Prietos statement about the gun seem more unequivocal than the translation indicates it was. Cabral said that Prieto indicated he knew about the gun in the car, when in fact Prieto said he thought that maybe there was a gun.

Cabral was testifying to his understanding of Prietos admission. It is understandable given the facts of the case, that Cabral would have interpreted this hesitant admission as a more definite admission. As Cabral testified, individuals who are responsible for a crime have a tendency of minimizing things. He also testified in regard to a question about Gonzalezs statement that one cannot understand the transcribed version of the statement without actually viewing the person. Body motions sometimes translate something different.

Prieto started out saying he definitely was unaware anyone in the car had a gun, then said he was not sure, and finally admitted he may have known. In this case, where several gang members decided to drive by a location known as a hang out for a rival gang shortly after a prior confrontation that included gunfire, it strains credulity to believe that Prieto did not know or suspect that one of his cohorts was armed before going into enemy territory. Prietos qualified admission was enough to indicate that he did, in fact, know Gonzalez was armed.

Cabral was justified in assuming that under the circumstances, if Prieto had not known anything about a gun, he never would have admitted he thought that maybe there was a gun. Additionally, Cabral was in a better position to judge, from Prietos demeanor and inflection, whether this qualified admission was in fact an unqualified admission of knowledge. Because Cabrals testimony was not false, or even substantially misleading, we find no misconduct.

X

Counsels Failure to Request Intoxication Instruction

Prieto argues his trial counsel was ineffective for failing to request an instruction on the effect of intoxication on his specific intent to aid and abet a crime. He argues that the prosecutions case against him was based entirely on aiding and abetting, that his primary defense was that he did not have knowledge of the crime, and that an intoxication instruction would have been consistent with that defense theory.

As previously stated, a successful claim of ineffective assistance of counsel requires defendant to prove that his counsels representation was objectively deficient, and that but for counsels errors, he would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718; People v. Ledesma (1987) 43 Cal.3d 171, 218.) If the record sheds no light on why counsel acted or failed to act, we will reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation for counsels action. (People v. Huggins, supra, 38 Cal.4th at p. 206.)

We conclude there was a satisfactory explanation for counsels failure to request an intoxication instruction, thus counsels failure to act was not deficient, and Prieto was not prejudiced because the evidence presented would not have warranted the request for the instruction. Trial counsel did not request a voluntary intoxication instruction because there was not substantial evidence of voluntary intoxication.

A voluntary intoxication instruction is warranted only when there is substantial evidence of the defendants

voluntary intoxication and the intoxication affected the defendants actual formation of specific intent. [Citations.] (People v. Williams (1997) 16 Cal.4th 635, 677.) Evidence that a defendant has been drinking absent evidence that he became intoxicated provides no basis for an intoxication instruction. (People v. Sanchez (1982) 131 Cal.App.3d 718, 735.)

Cabral testified that at the beginning of the interview Prieto told him that he was so intoxicated after leaving his girlfriends house, he did not remember anything. Cabral also stated that he had information Prieto had known what was going on, so he continued to question him. Prieto eventually described what had happened that night, so that it became clear he was not as intoxicated as he had claimed. On cross-examination, Cabral agreed that Prieto told him he was drunk, but on redirect, he explained that when he said he was drunk, that was his initial story of saying why he didnt remember anything at all after he had left his girlfriends house[.] Cabral confirmed that at some point in the interview, Prieto, either by inference or by actually giving the details of what hap