P. v. Romo

Filed 8/21/07 P. v. Romo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank

F. Fasel, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of multiple crimes stemming from two fatal shootings; one in Los Angeles County in 2001, and the other in Orange County in 2002. He contends the Los Angeles charges were untimely filed and should have been severed from the Orange County charges. He also alleges a variety of instructional and evidentiary errors, as well as insufficient evidence and prosecutorial misconduct. Finding no basis to reverse the judgment, we affirm.

* * *

On November 23, 2001, William Gline was at his home in the City of Artesia in Los Angeles County. He was drinking with his wife, brother-in-law and cousin Donnie when the latter three left to get more beer. At the liquor store, they had an unfriendly verbal exchange with some gang members, but nothing came of it. When they returned to Glines house, they told him about the encounter. He left the house and returned about 10 minutes later without saying where he had gone.

Later, Gline and Donnie moved Glines car from around the corner to the front of the house. Donnie rode on the hood and then jumped off as Gline began to park. Suddenly, shots rang out and Gline was fatally struck in the head with a bullet from a .45 caliber handgun. Donnie ducked behind a car and saw men nearby who looked like gang members. Although he and Gline were not in a gang, the shooting occurred in the territory of the Chivas Artesia gang, of which appellant is a member.

Appellant did not become a suspect in the case until Jose Ayala implicated him three months later. Ayala had been arrested for auto theft and hoped that by giving the police information about the Gline shooting, he would get favorable treatment in his own case. He told authorities that on the night of the shooting, he was standing in his yard when he heard gunshots. Appellant and another man then came running up to him, and appellant said, I just domed this fool around the corner. Ayala took this to mean that appellant had shot someone in the head. He noticed that appellant had a gun in his waistband a .45 he had previously heard appellant refer to as Betsy.

Gang expert Mark Brooks testified about the general culture and customs of gangs. He also talked specifically about Chivas Artesia, appellants gang, and mentioned some of the crimes its members have committed, including first degree murder. Based on a hypothetical fashioned from the facts of this case, Brooks opined that Glines murder was gang-related and that the shooter would expect to gain considerable respect from carrying out such a violent act.

Two months after Gline was murdered, appellant was involved in a shooting in Orange County. On January 30, 2002, he was hanging out with Jose Soldier Herrera, Salvador Lil One Herrera and Juan Carlos Caparrotta. Soldier and Lil One were in gangs, but not appellants. Soldier was also a drug dealer. After smoking methamphetamine for the better part of the day, the group got a call from Jamie Ingels, who lived in Anaheim.

Ingels and her roommate Deidre Lombardo were also into drugs. One of their friends was a methamphetamine dealer named Hugh Whitey Browne II. But in early January 2002, they had a falling out with Whitey over a drug deal involving Soldier. In the wake of the deal, Whitey became threatening and took some things from the girls apartment. On another occasion, he pulled a gun on Soldier. Soldier was not intimidated, though. He assured everyone he could handle the situation and said, [W]e are going to take care of it.

Ingels and Lombardo just wanted their stuff back. Working with Soldier, they came up with a plan to lure Whitey over to their apartment on the night of January 30. The girls told Whitey they were interested in buying drugs from him, but their real plan was that Soldier would confront Whitey and get him to return their property. According to the girls, there was never any plan for Soldier to rob or shoot Whitey, but they did anticipate that Soldier might try to rough him up a bit.

Oblivious to the scheme, Whitey showed up at the girls apartment on the night of the 30th with his adult son Hugh Browne III. Ingles surreptitiously phoned Soldiers group to let them know Whitey was there. Then, Whitey and the girls went into the bedroom and smoked methamphetamine. Whiteys son joined them, but he did not partake in any drugs.

Meanwhile, appellant, Soldier, Lil One and Caparrotta arrived at the apartment complex. After slashing the tires on Whiteys vehicle, they made their way into the complex. As they were walking toward the girls apartment, appellant pulled out Betsy. Caparrotta got nervous and asked why they needed a gun. Appellant didnt say anything. He just handed the gun to Soldier, who said, We are not going to use it or nothing. Just in case. Caparrotta asked in case of what? and Soldier replied in case he has one.

When they reached the girls apartment, Caparrotta knocked on the door while Soldier, Lil One and appellant stood off to the side. Ingels answered the door and told Caparrotta to take the fight somewhere else. However, Soldier stuck his foot in the door and asked, Where is Whitey? He then entered the apartment with Lil One, while Caparrotta and appellant stayed outside.

Whitey and his son emerged from the bedroom to find Lil One brandishing a knife and Soldier holding Betsy. Lil One put Whiteys son up against the wall and took his wallet. Whitey tried to intervene, but Soldier shot him three times, killing him. Soldier then turned the gun on the younger Browne and shot him in the leg.

At trial, appellant testified he did not know Soldier was going to hurt Whitey, let alone shoot him or his son. Appellant said when he pulled out Betsy on the way to the girls apartment, Soldier took it from him but said he was not going to use it. Appellant further claimed he was in the stairwell when he heard the shots and was surprised to learn what Soldier had done. As for the Gline shooting, appellant testified he had no part in it.

The jury was unable to reach a verdict on the charges appellant murdered Gline and carried a loaded firearm while he was an active participant in a criminal street gang. The court ended up dismissing those charges. However, the jury convicted appellant of participating in a criminal street gang and possessing a firearm as a felon.

With regard to the Orange County incident, the jury found appellant guilty of first degree murder, attempted premeditated murder, possessing a firearm while a felon and carrying a loaded firearm while an active participant in a criminal street gang. The jury acquitted him of burglary and robbery and found not true the special circumstances allegation that the murder was committed during a residential burglary.

I

Appellant contends the trial court erred in denying his motion to sever the Los Angeles County charges from the Orange County charges. We disagree.

Preliminarily, appellant argues the two murders were not sufficiently connected together in their commission to justify their joinder in the first place. (See Pen. Code, 790, subd. (b), 954.)[1] However, a sufficient connection between crimes exists for joinder purposes when, as here, the same gun is used to commit them. (See, e.g., People v. Rogers (2006) 39 Cal.4th 826, 850; People v. Cunningham (2001) 25 Cal.4th 926, 984.) The murder charges were properly joined.

Nevertheless, appellant argues the court should have granted his motion to sever the murder charges. A trial court in the interests of justice and for good cause shown, may in its discretion order that . . . different offenses . . . be tried separately. (People v. Cook (2006) 39 Cal.4th 566, 581, quoting  954.) The problem with this argument is that the burden is on the party seeking severance to establish clearly that a substantial danger of prejudice exists requiring that the charges be tried separately. [Citation.] (People v. Cunningham, supra, 25 Cal.4th at p. 985.)

Denial of a severance may be an abuse of discretion where (1) evidence related to the crimes to be tried jointly would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case; and (4) any one of the charges carries the death penalty. [Citations.] The first criterion is most significant because, if evidence on each of the joined charges would have been admissible in a separate trial on the other, any inference of prejudice is dispelled. [Citations.] (People v. Cunningham, supra, 25 Cal.4th at p. 985.)

Here, the evidence showing appellant handed his gun Betsy to Soldier right before the Orange County shooting would have been admissible to prove he was the shooter in the Los Angeles County case. Identity was the sole issue in that case, and since Betsy was the murder weapon, any evidence linking appellant to Betsy would have been highly probative. (See People v. Medina (1995) 11 Cal.4th 694, 748 [use of the same weapon in multiple offenses is a distinctive enough feature to justify finding of cross-admissibility]; Compare Williams v. Superior Court (1984) 36 Cal.3d 441, 450 [cross-admissibility of evidence not established because there was no evidence that the same weapon was used in the fatal assaults].) Because complete cross-admissibility is not necessary to justify joinder of counts [citation], . . . the cross-admissible evidence concerning the gun would justify such joinder. [Citation.] (People v. Cunningham, supra, 25 Cal.4th at p. 985.)

Besides the gun evidence, appellants gang membership was also an issue in both shootings. The Los Angeles County shooting was alleged to have been gang-related, and in the Orange County matter, it was alleged that appellant carried a loaded firearm while an active gang member. These charges further established the cross-admissibility factor, and further supported joinder of the charges.

Turning to the other severance factors, it is clear the evidence implicating appellant in Glines murder was somewhat weaker than the evidence implicating him in the Orange County shooting. The Gline case was a true whodunit, whereas the players and circumstances surrounding the Orange County shooting were undisputed for the most part. Still, in terms of qualitative strength, the evidence was not that lopsided one way or the other, and the fact the jury acquitted appellant of some charges and deadlocked on others indicates it was able to consider the merits of each count individually. It is clear the jury did not just lump all the charges and evidence together and convict appellant across the board simply because he was accused of two sets of crimes.

The fact both sets of crimes were of similar gravity likely attributed to the jurys ability to weigh the evidence fairly with respect to each of the charges. Neither shooting incident was more inflammatory than the other. And, the prosecution did not seek the death penalty as to either murder. Considering all these factors, we cannot say the court abused its discretion in denying appellants severance motion.

As a fallback argument, appellant claims trying all of the counts in a single case deprived him of his right to a fair trial. Granted, there will be rare cases where, despite the proper joinder of counts, a joint trial will be so grossly unfair and have such an injurious effect on the jurys verdict as to deny the defendant a fair trial. (People v. Grant (2003) 113 Cal.App.4th 579, 587.) But this is not such a case. As noted, appellant faced gang charges for both the Los Angeles County shooting and the Orange County shooting, his gun was used in both of the shootings, and the jurys split verdict suggests no actual prejudice in the joinder of counts. We therefore conclude a joint trial was not fundamentally unfair or violative of appellants due process rights. (See People v. Cook, supra, 39 Cal.4th at p. 583 [there was no unfairness in having a joint trial where the defendants gun was used in two of the three shootings at issue in the case].)

II

Appellant also contends the court should have granted his motion to dismiss the Los Angeles County charges because they were not filed until April 26, 2005, almost three and one-half years after Gline was murdered. The contention lacks merit.

Precharging delay may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions[,] but only if the defendant can demonstrate prejudice arising from the delay. (People v. Catlin (2001) 26 Cal.4th 81, 107.) As it turned out, appellant could not have been prejudiced by the delay in the filing of the Los Angeles County charges. The Los Angeles County murder charge and the gang member in possession of a loaded firearm charge were dismissed by the court, after the jury was unable to reach a decision on them. And the two remaining Los Angeles County charges participation in a criminal street gang and felon in possession of a firearm were not contested by the defense. That had nothing to do with the timing of those charges. Appellant admitted on the stand that he has been an active member of Chivas Artesia for nearly 20 years and that he has possessed a variety of firearms, including Betsy. He also admitted suffering various prior felony convictions. Since the delay in filing had nothing to do with these admissions, we cannot say appellant was prejudiced by the timing of the Los Angeles County charges.

It is possible that the sheer inclusion of these charges regardless of their outcome made things more difficult for the defense, simply because they suggested appellant was involved in more than one criminal incident. Indeed, it is conceivable that some of the jurors may have been inclined to think that although there was insufficient evidence to convict appellant of all the charges, he must have done something wrong, and therefore they were not going to let him off the hook completely. However, to find a violation of due process based on precharging delay, the defendant must show he suffered actual prejudice from the delay. (People v. Boysen (2007) 152 Cal.App.4th 1409, 1418.) Because it is entirely speculative whether the inclusion of the Los Angeles County charges actually prejudiced appellant and the outcome of the charges actually indicates otherwise we cannot say the court erred in failing to dismiss them. No due process or fair trial violation has been shown.

III

Next, appellant contends the trial court abused its discretion in denying his motion for a mistrial based on unsolicited statements Caparrotta made while testifying. We think the court acted appropriately.

Caparrotta negotiated a plea agreement pursuant to which he was to receive a six-year sentence for manslaughter in exchange for testifying at appellants trial. However, he made it clear during his testimony that he was not happy with this deal because in his mind he was not guilty of any wrongdoing. Throughout his testimony, he insisted he was not part of any plan to harm Whitey and he had no idea Soldier was going to shoot him.

Caparrotta was equally insistent appellant did know about Soldiers intent in this regard. During his cross-examination, he repeatedly ignored defense counsels question, turned directly to appellant, and accused him of knowing what was going to happen when they went up to the girls apartment. Both defense counsel and the court tried to control Caparrotta, but he continued in this vein for some time. At one point he told appellant, You kn[e]w, man. And you are sitting here and you are lying, man. Tell the truth, man.

Defense counsel asked Caparrotta just how he could be so sure appellant knew Soldier was going to shoot Whitey. Caparrotta candidly admitted he did not have any specific information or evidence in this regard. Rather, he just assumed appellant and Soldier had a plan to shoot Whitey because appellant is the one who gave Soldier the gun.

Based on Caparrottas statements, the defense asked for a mistrial. The court denied the request, but it did agree to admonish the jury as follows: During the trial, witness Carlos Caparrotta made some statements that were directed to the defendant, and were not in response to questions asked by the attorneys. [] You are to disregard these statements.

In order to justify a mistrial based on a witness volunteered statements, the statements must be incurably prejudicial. (People v. Wharton (1991) 53 Cal.3d 522, 565.) Whether the statements rise to this level is a speculative matter, and the trial court is vested with considerable discretion in ruling on the issue. (People v. Williams (1997) 16 Cal.4th 153, 211, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) As a general rule, A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that the improper subject matter is of such a character that its effect . . . cannot be removed by the courts admonitions. [Citation.] (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)

Here, the courts instruction to the jury was sufficient to remove the taint of Caparrottas statements. On their face, the statements were damaging and went to a key issue in the case, i.e., appellants knowledge of Soldiers intent. But Caparrotta readily admitted that he had no evidence to prove appellant knew Soldier was going to shoot Whitey and that the only reason he believed as he did was that he saw appellant give Soldier the gun. This means the jury not only knew Caparrotta was hostile to appellant but knew that he was basing his assertions of appellants knowledge entirely on material insufficient to prove it.

Caparrotta admitted a strong dislike for appellant. His bias could hardly have been clearer to the jury. In fact, it was quite clear from his testimony that he blamed appellant entirely for his current predicament. Because all of Caparrottas opinions were fully explored, and his biases fully exposed, we cannot say his comments toward appellant were of such a character that their effect could not be removed by the courts admonishment. Indeed, they appear to us to be precisely the kind of statements an admonition could cure. We therefore find the trial court did not err in denying appellants motion for a mistrial.

IV

During his testimony, appellant said he would be considered a rat for testifying about what happened during the Orange County crimes. He expressed particular concern about implicating Soldier and Lil One. However, on cross-examination appellant admitting knowing their trials were already over.

Appellant contends the court should not have allowed the prosecutor to elicit this admission because, on the one hand, it was irrelevant to the issue of guilt in his case, and on the other, it prejudicially reinforced the connection between him and the perpetrators of Whiteys murder. (See Evid. Code,  352 [court has discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect].)

Admittedly, appellants admission did not pertain to any tangible issue surrounding Whiteys death. But it did discredit appellants suggestion that his testimony was somehow harmful to Soldier and Lil One. The suggestion was intended to bolster appellants credibility and integrity, by making it seem like appellant was going out on a limb in implicating his cohorts. This suggestion was obviously weakened by the fact Soldiers and Lil Ones trials were already over by the time appellant took the stand. So, in terms of enabling the jury to carry out its truth-finding function, appellants admission of this fact was probative.

And the admission was certainly not unduly prejudicial in connecting appellant with Soldier and Lil One, because there was a wealth of other evidence that did that. Indeed, it was not disputed the three were drug buddies, they hung out together on the day of the murder and they accompanied each other to the scene of the shooting. In assessing prejudice, we must also bear in mind that the court instructed the jurors not to speculate about the results of Soldiers and Lil Ones trials, and the prosecutor steered the jury away from such speculation in his closing argument. All things considered, we do not believe the challenged evidence was unduly prejudicial or materially contributed to the jurys verdict. Certainly, we cannot say its prejudicial effect substantially outweighed it probative value. Accordingly, we cannot say the trial court erred in allowing it.

V

The prosecution theorized appellant was guilty of murdering Whitey and attempting to murder his son under the natural and probable consequences doctrine. More specifically, it alleged appellant was guilty of those crimes because they were reasonably likely to come about from the commission of other offenses he intended to aid and abet, namely brandishing a firearm and assault with a firearm. The trial court instructed the jury on these target offenses, but appellant claims this was error because the only target offense he and his cohorts intended to commit was simple assault, or more particularly, physical assault with fists. We disagree.

The evidence shows appellant handed a gun to his friend, Soldier, a gang member, as they approached the girls apartment. Soldier made it clear he intended to use the gun if Whitey had one, and there is no evidence he ever put the gun away after appellant gave it to him. Rather, it appears he had it out and at the ready as soon and he and Lil One entered the apartment. This shows he was prepared to use the gun, or at the very least, brandish the weapon and/or assault Whitey with it. Therefore, there was sufficient evidence to support these target offenses, and the court properly instructed on them.[2]

Alternatively, appellant maintains there is insufficient evidence the attempted murder of Whiteys son was a natural and probable consequence of brandishing and assault with a firearm. The trial court rejected this argument in denying appellants motion to dismiss the attempted murder count. (Pen. Code,  1118.1.) The standard for that motion was the same substantial evidence standard we apply in reviewing appellants conviction on appeal. (People v. Mendoza (2000) 24 Cal.4th 130, 175.) Under that standard, we review the record in the light most favorable to the judgment to determine whether it contains sufficient evidence that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

Whether the attempted murder of Whiteys son was a reasonably foreseeable consequence of the target offenses of brandishing or assault with a firearm was a factual question for the jury. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1594.) The issue did not turn on [appellants] subjective state of mind, but depend[ed] upon whether, under all of the circumstances presented, a reasonable person in [appellants] position would have or should have known that [attempted murder] was a reasonably foreseeable consequence of the act [he] aided and abetted . . . . (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

Given the circumstances presented in this case, we believe it was reasonably foreseeable that Soldier would not only kill Whitey, but that he would also attempt to kill anyone who was with him. Soldier was a member of a criminal street gang and had considerable antipathy toward Whitey. And Whitey was, by all accounts, a tough and violent drug dealer who was angry with Soldier over a drug deal. In the wake of the deal, Whitey made threats to several people and even pulled a gun on Soldier. To make matters even more volatile, Soldier and Whitey both had been using drugs on the night in question.

Under these circumstances, giving Soldier a loaded .45 outside the girls apartment was tossing an ember into tinder. The apartment was a known drug den, so it would not be surprising that any number of people would be there. Soldier said he wanted the gun just in case Whitey had one, indicating he was prepared to confront Whitey even if Whitey had a gun. The potential for conflagration was manifest. It certainly would not be unreasonable to expect that in going to the apartment with the gun, Soldier would shoot anyone who was with Whitey and might be perceived as a threat to Soldier. Gang members are not known for handling situations like this one with diplomacy and reserve. Rather, as the gang expert explained, they tend to be very wary of people who are not in their own gang, and it could not have come as a surprise that Soldier would shoot first and ask questions if at all later. So when we add up the elements of personal animosity, drugs, weaponry and gang culture, we conclude it was reasonably foreseeable that in brandishing the gun and assaulting Whitey with it, Soldier would attempt to murder anyone else he perceived as a threat or an affront in this case, Whiteys son. Therefore, we uphold appellants conviction for attempted murder. (See People v. Woods, supra, 8 Cal.App.4th at pp. 1594-1595 [attempted murder of unexpected victim was a natural and probable consequence of an armed assault on others].)

VI

Appellant next contends the courts instructions were erroneous because they effectively precluded the jury from finding him guilty of second degree murder under the natural and probable consequences doctrine. While we agree with appellant on this point, we find the error harmless beyond a reasonable doubt.

The trial court instructed the jury that if it decided appellant was guilty of murder for Whiteys death, it must decide whether it is murder of the first or second degree. (CALCRIM No. 521.) The court further instructed that appellant was being prosecuted under three theories of first degree murder: (1) Deliberation and premeditation; (2) felony murder; and (3) the natural and probable consequences doctrine. In instructing on the natural and probable consequences doctrine, the court referred generally to the crime of murder without delineating the crime by degree.

During deliberations, the jury asked for instructions on second degree murder, and the court told them: Murder of the second degree is [] the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being, but the evidence is insufficient to prove deliberation and premeditation, or felony murder, or natural and probable consequences as defined elsewhere in these instructions. (Italics added.)

Appellant argues that the logical inference from the last instruction is that if the jury did find sufficient evidence to support the prosecutions natural and probable consequences murder theory, then it had to find him guilty of murder in the first degree. In defense of the instruction, the Attorney General contends it did not inform the jury that the natural and probable consequences doctrine leads only to first degree murder, and the jury was never told it could not find second degree murder under that doctrine. Technically, that is correct. But the totality of the courts instructions clearly steered the jury in that direction.

If the jury believed Whitey was unlawfully killed with malice, i.e., murdered, and there was sufficient evidence to support the natural and probable consequences doctrine, then the killing did not fit within the courts definition of second degree murder. Perhaps that alone would not have been enough for the jury to opt for first degree murder. However, as explained, the jury was expressly instructed that the natural and probable consequences doctrine was a theory of first degree murder. So if the jury found that doctrine applicable, it really had no other choice than to find that the killing constituted murder one.

Still, we agree with the Attorney General that the instructional error was harmless in light of the jurys finding on the attempted murder count. As to that count, the jury found that, in brandishing Betsy and assaulting Whitey with the gun, it was reasonably foreseeable that Soldier would not only attempt to murder Whiteys son, but that he would do so in a premeditated fashion. That is the only way to explain how the jury convicted appellant of attempted premeditated murder.

Since the jury believed it was reasonably foreseeable Soldier would act with premeditation in attempting to murder Whiteys son, it stands to reason the jury also believed it was reasonably foreseeable Soldier would act with premeditation in murdering Whitey. After all, it was Whitey, and not his son, whom Soldier was looking to confront. We agree with the Attorney General that in applying the natural and probable consequences doctrine, it would not make sense for the jury to find the element of premeditation applicable to Whiteys son, but not Whitey himself. Therefore, even if the jury had been properly instructed that second degree murder was a viable option under that doctrine, we are convinced beyond a reasonable doubt it still would have convicted appellant of Whiteys murder in the first degree, based on the theory of premeditation. Indeed, a contrary finding would have resulted in an inexplicable inconsistency in the verdict. Accordingly, the courts faulty instructions on second degree murder are not cause for reversal.

VII

Appellant asserts the prosecutor misstated the evidence and misled the jury in closing argument, thereby violating his state and federal constitutional rights. A prosecutors rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)

Appellant claims the prosecutor misled the jury as to which person in his group said the gun was needed just in case Whitey had one. The record shows that it was Soldier who made the statement, but appellant accuses the prosecutor of arguing that he uttered those words. Actually, the prosecutor alleged that defense counsel, in his opening statement, attributed those words to appellant. Defense counsel objected on the grounds that he did no such thing, and the court instructed the jurors the arguments of counsel were not evidence, and it was up to them alone to decide the facts.

Appellant failed to make the opening statement a part of the record on appeal, so we do not know if defense counsel actually made the statement that the prosecutor attributed to him. However, even if he did not, and the prosecutor misspoke, it would only have made the prosecutor look bad in the eyes of the jury for misrepresenting defense counsels opening. It would not have infected the trial with such irreparable unfairness so as to undermine appellants fair trial rights, and could not constitute misconduct.

Appellant also claims the prosecutor muddied the waters with respect to whether the gang that key witness Jose Ayala belonged to was at war with appellants gang. Appellant is right that the evidence on this issue was somewhat muddled. But the charge Ayala testified about Glines murder was ultimately dismissed by the court. So appellant could not have suffered any actual prejudice from the alleged misstatements. Nothing the prosecutor said warrants a reversal.

VIII

Lastly, appellant contends the cumulative effect of the errors that occurred denied him of a fair trial. However, whether considered individually or in combination, we do not believe the alleged errors infringed appellants constitutional rights or undermined the fairness of his trial. We therefore reject his claim of cumulative error.

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] Unless noted otherwise, all further statutory references are to the Penal Code.

[2] Given this conclusion, we need not consider appellants argument the murder and attempted murder were not a natural and probable consequence of simple assault. The facts just dont fit that argument. (Compare People v. Medina (July 23, 2007, B189049) __ Cal.App.4th __, __ [in murder prosecution arising from gang shooting, simple assault was a target offense where there was no evidence the defendants knew anyone involved in the assault had a weapon before the shooting].)