P. v. Strong

Filed 6/17/08 P. v. Strong CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.

Joseph Shipp, by appointment by the Court of Appeal under the California Appellate Project, Independent Case System, for Defendant and Appellant DeWayne Strong.

Corinne S. Shulman, by appointment by the Court of Appeal under the California Appellate Project, Independent Case System, for Defendant and Appellant Aaron Sobalvarro.

Law Offices of Aron Laub and Aron Laub, for Defendant and Appellant Diego Sobalvarro.

Appellants Diego Manuel Sobalvarro, Aaron Marvin Sobalvarro and DeWayne Ray Strong were charged with the willful, deliberate, and premeditated murder of Carlos Ochoa (Penal Code 187, subd. (a)).^[1] After a joint jury trial, Diego and Aaron were convicted as charged; Strong was convicted of second degree murder. All three appealed.

In Strongs appeal, he contends the trial court erred by: (1) permitting a prosecution witness to testify concerning Strongs possible gang affiliation; (2) refusing to instruct the jury on voluntary intoxication or to allow his defense counsel to argue the issue; (3) refusing to instruct the jury on voluntary manslaughter resulting from imperfect self-defense; (4) failing to instruct sua sponte on involuntary manslaughter under the theory that potential aider and abettor liability resulting from the necessary and probable consequences doctrine did not necessarily point to murder; (5) failing to give sua sponte the cautionary instructions on accomplice testimony under the theory that the two primary prosecution witnesses should have been considered possible accomplices; (6) giving CALJIC No. 2.11.5, which instructed the jurors not to speculate or guess as to why other persons who might have been involved in the crime were not then on trial; and (7) giving CALJIC No. 2.21.2, which advised the jurors they were free to reject the testimony of a witness who willfully testified falsely.

Aaron presents two contentions on appeal: (1) the prosecution presented insufficient evidence at trial to support that he was anything more than an accessory after the fact to dispose of the body, and (2) the court erred in refusing to allow him to introduce evidence that the victim received threats and threatening telephone calls from unidentified parties prior to and on the day of the killing.

Diegos appeal presents a single contention: the trial court erred in admitting Strongs statement to a witness that [me] and Diego might have killed somebody.^[2] For the reasons discussed, we reject these contentions and affirm the jurys verdict.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Evidence at Trial

1. Prosecution Case

Aaron, nicknamed Malo, and Diego, nicknamed Stomper, are cousins. In August 2002, they were residing in a mobile home park on East Avenue I in Lancaster with David Valdez, nicknamed Gadget. The Sobalvarros were members of a gang called Varrio Nueva Estrada or VNE. The victim, Carlos Ochoa, nicknamed Risky, sometimes sold marijuana to Aaron and had visited the mobile home numerous times prior to his death. Strong and Nick Koufos had also been at the mobile home numerous times.^[3] Strong, Koufos and the Sobalvarros were all muscular men, larger than Ochoa.

a. Testimony of Valdez and Avery

On August 29, 2002, John Avery, nicknamed Hon, went to visit Valdez at the mobile home park.^[4] The two were regular marijuana users and were hoping to obtain some that day.

Sometime during the evening of August 29, Valdez and Avery were sitting outside the mobile home. Strong, Koufos, and Ochoa were nearby. Diego was either with the three men or inside the mobile home where, fifteen or twenty minutes earlier, Avery had seen Aaron sleeping on a couch.^[5] Koufos grabbed Ochoa from behind, putting him in a full Nelson and lifting him off his feet. Strong struck Ochoa in the face, knocking him out. Valdez and Avery did not hear any argument among the men or hear Koufos and Strong say anything to each other prior to the attack. Koufos and Strong dragged or carried the apparently unconscious Ochoa into the Sobalvarros mobile home.

Valdez and Avery decided to stay where they were, fearing that if they left they would give the appearance of snitching and their lives would be jeopardized. While they waited, Valdez heard stomping noises from inside the mobile home. Ten or fifteen minutes later, Strong came out of the mobile home and said either that I or we had just killed somebody and told Valdez if he said anything he would be next.

Valdez and Avery got into Averys car and waited. A few minutes later, Aaron came out of the mobile home. He asked Valdez how he was doing and told Valdez to hang tight, that they were going to be leaving soon. One of the Sobalvarros told Avery that he (Avery) would be giving them a ride. Aaron got into Averys car with a duffle bag. Diego got in as well. After a few minutes Koufos and Strong drove up in Ochoas car. One of the Sobalvarros instructed Avery to follow them. Avery, who was afraid after seeing what had happened, did not believe he was free to decline.

The two cars stopped at a Texaco gas station. Aaron asked Valdez if he was okay and said: Dont worry. Youll get to go home. After the cars were fueled, one of the Sobalvarros told Avery to continue following Ochoas car.^[6] Avery followed the car as it drove off the end of the paved road into the desert near 70th Street West and Avenue M in Lancaster.^[7] Avery stopped his car and Koufos and Strong drove Ochoas car out a little farther into the desert. Approximately five minutes later, Koufos and Strong drove Ochoas car back toward town and the Sobalvarros again instructed Avery to follow it. The two cars stopped at a second gas station, where someone filled a gas can that was placed in Ochoas car. The two parties returned to the same location in the desert. Avery and the three passengers in his car (Aaron, Diego and Valdez) again waited some distance from Koufos and Strong in Ochoas car. About five minutes later, Koufos and Strong drove away and one of the Sobalvarros told Avery to leave. As Avery drove away, he looked in his rear view mirror and saw something burning.

After leaving the desert, the Sobalvarros directed Avery to drive to the home of a friend of Aarons, but no one was there. They then directed him to a second location where the Sobalvarros got out. Valdez and Avery went to Valdezs brothers house.^[8]

b. Other Testimony

Earlier on the day of the murder, prior to going to the Sobalvarros mobile home, Strong and Koufos had been at the residence of Tonya Downing. Downing was a member of a gang, but not VNE. Just before the two men left, Strong said they had to go handle something. Downing next saw Strong and Koufos early the following morning (August 30), at approximately 6:00 a.m. Strong had Ochoas car and car keys. He also had a busted knuckle on his right hand, smelled like smoke, and had ashes or soot on him. He seemed nervous or scared. Downing did not notice any alcohol on Strongs breath, but Koufos appeared to be drunk. Strong asked Downing if she wanted to go see the body of someone she knew.^[9] Strong said [me] and Diego might have killed somebody. Later, Downing heard about Ochoas burned body having been found in the desert and spoke with the detectives investigating the case.

At approximately 8:30 a.m. on August 30, Andrea Rose Hermanson, an acquaintance of Strongs, saw him driving Ochoas car. Although the day was

warm, Strong was wearing socks over his hands and arms. Hermanson asked why he was wearing the socks, but Strong did not explain.

Nicole Dominguez, Ochoas live-in girlfriend and the mother of his two children, lived with him in an apartment approximately five miles from the Sobalvarros mobile home. Sometime during the afternoon of August 29, Dominguez answered the telephone. The caller identified himself as Malo and Dominguez recognized the voice of Aaron Sobalvarro, whom she had met once before. The caller spoke briefly with Ochoa. At approximately 8:00 or 8:30 p.m. that evening, Ochoa left, saying he was going to see Malo and would be back in an hour. He took a bag of marijuana with him.

The next morning (August 30), at approximately 10:30 or 11:00 a.m., Dominguez saw Ochoas car pull into a parking space near their apartment. An unknown man Dominguez later identified as Strong was driving the car. He appeared to be conversing with a woman in a second car. Dominguez yelled at Strong, asking what he was doing in her car. Strong and the woman in the second car drove away. Dominguez called the authorities and a deputy took her to identify Strong and the car a short while later.

Strong was pulled over by deputies on the morning of August 30. The deputies noticed an odor of gasoline coming from the cars trunk. The exterior was dusty and dirty. Inside the car, the deputies found a nearly empty 40-ounce bottle of malt liquor and a full bottle of the same beverage. When asked whose car he was driving, Strong first said the car was his, then said he bought the car from some guys, and then changed his story again, saying he had borrowed it from a girl. When asked to specify the location from which he had borrowed the car, he took the officers to the mobile home park, eventually directing them to the Sobalvarros mobile home. No one was there at the time. Strong was arrested for auto theft, and released after a brief detention. The shoes worn by Strong when he was first arrested contained gasoline residue.

On August 31, detectives Joseph Edward Purcell and Philip Guzman interviewed Strong. Strong advised them to talk to Valdez. The detectives noticed that Strong had an injury on his right hand, near the knuckle.

Barbara Scott, Strongs grandmother, testified that Strong assured her he had done nothing wrong. However, in a November 2002 interview, she informed Detective Purcell that Strong had told her he had broken Ochoas leg, dragged him down a flight of stairs, and, along with Koufos, driven the body out to the desert, drenched it with gasoline, and lit it on fire. Strong had also reportedly said to Scott the whole thing was a drug deal and he had been forced to do it.

Ochoas body was found, badly burned, on August 30 in the desert at Avenue M and 78th Street in Lancaster, three blocks past the paved road. There was a ligature mark on his throat and a green substance that appeared to be the residue of a plastic or electrical cord around his neck. Ochoas femur -- a large bone in the thigh -- was broken. A break of that type requires application of a great deal of force. There was no evidence of any fracture to his face or injury to his brain. The cause of death was asphyxia, due to probable ligature strangulation.

Investigators found a bloodstain in the master bedroom of the Sobalvarros mobile home. The blood matched Ochoas. Investigators also found a green electrical cord in the master bedroom.

Aaron Sobalvarro was apprehended in January 2003 in Oregon. He told a detective he left the Lancaster area on September 1, 2002, having purchased the bus ticket on August 30. He denied living in the mobile home at the end of August. He admitted knowing Ochoa and occasionally purchasing marijuana from him. During the interview, Aaron said he was not going to break and that he knew who did it. Diego Sobalvarro was apprehended in March 2003 in Las Vegas.

2. Defense Case

Strong was the only defendant to testify. Strong described himself as an alcoholic during the summer of 2002. His habit was to have a drink first thing in the morning and to drink steadily throughout the day.

In August 2002, he had just become acquainted with Diego. He did not know Aaron. Strong was aware that the Sobalvarros were in the VNE gang. He was acquainted with Valdez and Avery, whom he described as little wanna-be[s] of VNE or protg[s] of the Sobalvarros. He and Koufos were at the Sobalvarros mobile home park almost every day in August because Koufos was drawing a large tattoo on Diego. Strong went along primarily to visit friends who lived in the park.

Strong believed that on August 29, 2002, he followed his usual pattern of having a drink first thing in the morning and drinking throughout the day. He did not specifically remember leaving his house or anything he did before arriving at the mobile home park. He did not remember how he got to the mobile home park but recalled that during that summer, he and Koufos were often driven around by Koufoss brother, Demetrius.^[10] Once they arrived at the mobile home park, Strong and Koufos went to the home of Strongs friends. Koufos left, but soon came running or jogging back and told Strong that Diego was having problems with somebody at the Sobalvarros mobile home and that the guy ha[d] . . . a gun. Strong thought this was outrageous and that Koufos was overreacting, as he always overreacts like that to little things because he doesnt know really . . . whats going on. Consequently, Strong didnt believe [Koufos].

Strong accompanied Koufos to the Sobalvarros mobile home. When they arrived, Ochoa was on the porch along with Diego, Valdez and Avery. Demetrius was nearby, standing by his car. Aaron was inside the mobile home, near the window. As Strong approached the porch, Diego grabbed Ochoa in a full Nelson and carried him into the mobile home. Strong and Koufos followed; Valdez and Avery stayed outside.

Once inside, Diego hit Ochoas face against the doorframe of the master bedroom. Then Diego pushed Ochoa onto the floor, fell on top of him, grabbed a cord, and wrapped it around his neck. Strong asked who the guy was and Diego said Ochoa was a rat or rata. While being strangled, Ochoa called out Malo. Aaron said: Fuck him. Fuck that guy.

Koufos sent Strong outside to tell Demetrius to leave. Strong did as instructed and Demetrius drove away. When Strong went back inside, Diego was still in the process of choking Ochoa. There was blood dripping from Ochoas face onto the floor. Aaron angrily confronted Strong, asking him why he told Demetrius to leave and where Demetrius was going. Strong assured Aaron he had not told Demetrius to get help. Aaron, who had been pacing back and forth, stepped outside briefly to speak to Valdez and Avery. Strong followed him outside. He observed Aaron get into Ochoas car and pull it into the mobile homes carport.

Strong went back inside the mobile home and asked Koufos if he wanted to leave. He saw Diego pick up Ochoas apparently lifeless body and carry it out the back door. Diego said: [T]his is what happens to rats. Strong walked out the front door where he saw Valdez and Avery standing by Averys car. When Strong went back inside, he learned that he and Koufos were expected to go with the Sobalvarros because the cars needed gas and Koufos was the only one with cash. The Sobalvarros came out of the mobile home carrying duffle bags. Diego had a gun in his waistband. Strong started to feel afraid because of the way Diego was acting and because he had a gun.

Strong and Diego got into Ochoas car. Diego took the drivers seat. Aaron and Koufos got into Averys car. They drove to the Texaco station and then out into the desert. Diego took Ochoas body out of the trunk and dragged it toward a telephone pole, and said he needed more gasoline. The two cars went to a second gas station and then returned to the body. Diego wrapped the body with a blanket, poured gasoline on it and set it on fire.^[11] Diego got into Averys car, and the car drove away, with Diego, Aaron, Avery and Valdez inside.

Strong got into Ochoas car behind the drivers seat; Koufos was on the passenger side. Strong started to follow Averys car. However, he almost crashed and decided he was too drunk to drive, so he changed places with Koufos who took over driving. Strong did not want the responsibility of disposing of Ochoas car, so Koufos and Strong first drove back to the mobile home park looking for Diego. They then drove to Koufoss fathers house. Koufos went inside and Strong fell asleep in the car. When Strong awoke, he drove to a friends mobile home, then to Tonya Downings residence. He did not remember asking her if she wanted to see a body in the desert. He denied telling her that he and Diego might have killed somebody. During the time between leaving the desert and arriving at Downings place, he did not consume any alcohol.

Strong eventually arrived at Ochoas apartment. He had been given the address by Diego the night before. He was followed by a friend -- Felicia -- who was in another car. His plan was to drop Ochoas car off at that location and leave with Felicia.^[12] However, when Dominguez appeared and started yelling at him, he panicked and fled with the car.

After his arrest, Strong did not tell the deputy who questioned him who the car belonged to or what had happened, because he did not trust him. Later, he told the detectives what happened; gave them the names, nicknames and physical descriptions of everyone who had been at the mobile home that night; and told them where the Sobalvarros could be found (Oregon and Las Vegas). Strong was asked how he knew where the Sobalvarros went after the killing. He said: [J]ust from being over there hearing their conversations I knew where they all planned to go after -- it was not after a murder. Thats for sure. But it was -- its where they planned to go to get away.

The defense also called a deputy who had conducted a field sobriety test on Strong on August 30, the day he was stopped driving Ochoas car. The deputy testified that the decision to test for sobriety was made because of the alcohol containers found in the car and because Strong appeared to be under the influence of alcohol and was dozing off during the interview. Strong told the deputies he had last had a drink at 11 oclock, but did not specify a.m. or p.m. The sobriety tests were conducted at noon. Two breathalyzer tests were administered and showed Strongs blood alcohol level to be .19 and .20.

An expert called by Strong testified that a blood alcohol level of .20 affects the ability to operate machinery; and that a high enough blood alcohol level can cause a blackout, preventing the conscious brain from storing memory.

B. Relevant Argument

During closing argument, the prosecutor told the jury [w]e may never know for sure who strangled Carlos Ochoa[,] but it doesnt matter. . . . What we want to ask ourselves . . .  is did the individual defendants -- from Aaron Sobalvarro to Diego Sobalvarro to Dewayne Strong -- did they individually play a part in the overall scheme of things? [] Did they each contribute something to this crime?

Counsel for Aaron ridiculed the notion that Aaron, obviously a Hispanic VNE gang member, would recruit Koufos and Strong -- two obviously non-Hispanic fellows -- to do this horrible crime. He argued that the evidence supported that Koufos and Strong committed the killing on their own without input from the Sobalvarros, [t]hat in fact Koufos and Strong had their own issues or Koufos or Strong or somebody that they were aligned with had their own reasons to take care of [Ochoa] . . . .

In closing argument, counsel for Strong emphasized discrepancies in Valdezs and Averys testimony, and suggested they were fabricating or slanting their testimony to implicate Strong and Koufos, while minimizing the culpability of the Sobalvarros. Counsel contended that Valdez and Avery were likely fearful of the Sobalvarros due to their gang affiliation. Strongs counsel emphasized that Valdez and Avery were well acquainted with the Sobalvarros and knew they were VNE members, but barely knew Strong and Koufos. At one point, counsel asked the jury to consider who Valdez and Avery were more likely to be afraid of -- [g]uys [they] dont know or guys [they] know and know are hardcore guys?

Counsel for Diego countered this suggestion in his closing argument: This gang thing is kind of interesting . . . [b]ut the repeated reference to [the] gang as a reason why Valdez and Avery would lie fails . . . to hold water. . . .  Maybe [Valdez] was fearful of any gang. Maybe he was fearful of two guys he had just seen beat a guy into unconsciousness. Maybe he was fearful of everybody.

II

DISCUSSION

A. Strongs Appeal

1. Evidence of Strongs Gang Membership

Strong contends the trial court abused its discretion under Evidence Code section 352 in permitting Diegos attorney to elicit Averys belief that Strong was a gang member. He contends evidence of his gang affiliation was unnecessary to the issues at trial and unduly prejudicial. For the reasons discussed below, we disagree.

a. Background

There were a number of discrepancies between Valdezs recollection and Averys recollection of events on the day of Ochoas murder.^[13] There were also discrepancies between Valdezs testimony at trial and information he had given

investigating detectives.^[14] During cross-examination of the witnesses, Strongs counsel highlighted these discrepancies, and in closing argument contended that Valdez and Avery were shading their testimony to favor the Sobalvarros and implicate Strong. To support this thesis, Strongs counsel elicited Valdezs knowledge that the Sobalvarros were gang members and that those who testified against gang members could suffer retribution. Strongs counsel also attempted to elicit a concession that Valdez was afraid of the Sobalvarros, but Valdez denied being afraid of them.

When Diegos counsel cross-examined Valdez, he asked whether Valdez was afraid of Strong and if so, why. Valdez had not heard that Strong was a gang member, but said he had knowledge that Strong had physically attacked someone. Counsel for Strong objected. The court overruled the objection and advised the jury: Im not allowing this for the truth of anything said to the witness but simply to help you evaluate his state of mind. Later, when Strongs counsel objected to a follow-up question, the court explained at sidebar: [Y]ou raised the issue of [Valdez] trying to favor [Diego] and I think what [Diegos] counsel is trying to do is the opposite.

When Avery was on the stand, Strongs counsel continued the strategy of highlighting discrepancies between his and Valdezs testimony and possible reasons for attributing certain conduct to Strong. In response to specific questioning from Strongs attorney, Avery testified that he had heard the Sobalvarros were gang members and conceded that they frightened him somewhat.

b. Relevant Evidentiary Ruling

Against this background, Diegos attorney undertook his cross-examination of Avery. He asked if Avery was aware Strong was a gang member. Strongs attorney objected. The court overruled the objection, but instructed the jury as follows: [A]s Ive told you in other testimony [concerning] what people thought about gang membership[,] whether its true or not is irrelevant to these proceedings. Nobody is being charged with being a gang member or doing some act on behalf of the gang. But . . . obviously what a witness thinks about someones affiliation with a gang[,] whether its true or not[,] says a lot about their credibility and why they acted this way or didnt act that way. . . .  [I]f the witness says that he believed that Mr. Strong was a member of X gang youre not to take that for proof of that fact. [] There is no proof one way or another. [] Its simply relevant in your assessment of why Mr. Avery acted one way or another. Its as to his state[] of mind and his credibility in these proceedings and so forth.^[15] Avery testified he believed Strong was a gang member. He did not know which gang.

c. Admissibility of Evidence

Strong contends the evidentiary value of Strongs suspected gang membership was minimal, insubstantial and tangential and that the court fail[ed] to scrutinize the proffer, which resulted in use of this evidence as back-door evidence of motive . . . . Strong supports the latter contention by pointing to the argument made by Aarons counsel in closing that Koufos and Strong or somebody that they were aligned with could have had their own reasons to take care of [Ochoa]. Strongs assessment of the value of the testimony is incorrect, and to the extent Aarons attorney attempted to misuse the evidence, the failure to object and request admonishment precludes consideration of that misuse here.

As a general proposition, admission of evidence of a criminal defendants gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. (People v. Williams (1997) 16 Cal.4th 153, 193; accord, People v. Avitia (2005) 127 Cal.App.4th 185, 192, quoting People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449 [[G]ang evidence is inadmissible if introduced only to show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]].) In cases such as the present one which do not involve a gang enhancement, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] (People v. Avitia, supra, 127 Cal.App.4th at p. 192, quoting People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) [E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it. (People v. Williams, supra, 16 Cal.4th at p. 193.) Nevertheless, [g]ang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. (People v. Avitia, supra, 127 Cal.App.4th at p. 192.) A trial courts admission of . . . gang testimony, is reviewed for abuse of discretion. (Id. at p. 193.)

Strongs contention that Averys belief concerning Strongs membership in a gang was of minimal, insubstantial and tangential value is belied by his defense strategy, illustrated by his counsels tactics in cross-examining Valdez and Avery and his argument to the jury. Because both Valdez and Avery testified that they saw Strong and Koufos take the lead in attacking Ochoa and disposing of the body, their testimony was potentially more damaging to Strong than to the Sobalvarros. In cross-examining Valdez, Strongs attorney focused on the differences between Valdezs testimony at trial and his earlier statements to authorities, including his inability to recall whether Diego was present when Strong and Koufos attacked Ochoa or whether he saw Aaron accompanying Ochoa when Ochoa arrived at the mobile home park, and his relatively recent recollection of being threatened by Strong. The questions were clearly intended to convince the jury that Valdez was deliberately tailoring his testimony to maximize Strongs involvement and to help the Sobalvarros, a proposition aided by the evidence of Valdezs knowledge that the Sobalvarros were gang members. Strongs attorney continued this strategy with Avery, emphasizing discrepancies between his testimony and Valdezs and eliciting Averys concession that the Sobalvarros frightened him somewhat. Strongs counsels closing argument highlighted the significance of this evidence. He attempted to persuade the jury that Valdez and Avery had fabricated testimony to make Strong and Koufos look bad, and that they had done so in part because they feared the Sobalvarros due to their gang affiliation. Under these circumstances, the courts conclusion that Diegos counsel should be permitted to ask if Avery had similar reason to fear Strong was correct, and the testimony elicited had substantial significance.

Strong contends that the evidence was irrelevant because the Sobalvarros had no need to impeach Valdez or Avery. The evidence was introduced not to impeach those witnesses, but to rehabilitate their credibility with respect to their descriptions of Strongs actions after Strongs counsel elicited testimony suggesting they had reason -- fear of gangs or gang members -- to shade their testimony in favor of the Sobalvarros.

Strong contends that the foundation for the question was weak and the court failed to scrutinize the proffer. Prior to asking the question, Diegos attorney informed the court at sidebar he had inquired of law enforcement officials and was given reason to believe Strong was a member of the White Power Gang. Counsel for Diego persuaded the court that as Avery indicated he was afraid of the VNE, the jury was entitled to know whether he would equally be fearful of Strongs gang affiliations . . . .

Strong attempts to rely on People v. Bojorquez (2002) 104 Cal.App.4th 335, 342, in which the court stated that evidence the defendant and a witness were members of the same gang, offered to show bias, should generally be excluded where other evidence shows the witnesss association and friendship with the defendant. Strong contends that the present situation was analogous because [Valdezs and Averys] legitimate fears of testifying against [Strong] or Koufos were not even really disputed. Strongs contention is incorrect. Absentany gang evidence, Averys reasons for fearing the Sobalvarros and Strong were identical -- all three were large and apparently violent men. But once the evidence of the Sobalvarros gang membership was introduced, the balance tipped, indicating Avery might have had greater reason to fear Diego and Aaron and a motive to slant his testimony in their favor. Evidence that Avery believed Strong was also a gang member tended to counter that inference.

Strongs brief points to the closing argument of Aarons counsel, particularly his statement that somebody that [Strong and Koufos] were aligned with might have had their own reasons to kill Ochoa, contending this proves codefendant brought this evidence in as back-door evidence of motive on the part of [Strong] . . . . First, it should be noted that Aaron did not introduce the evidence; Diego did.^[16] Moreover, counsels speculation in closing argument as to the motive for Ochoas killing did not render the admission of any evidence improper. To the extent Strongs counsel believed this oblique reference to gang membership was improper, his remedy was to object and request an instruction to the jury to disregard the comment. His failure to properly preserve this issue for appeal, precludes our consideration of it now. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211; accord, Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892; see Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 318; People v. Ochoa (1998) 19 Cal.4th 353, 431.)

Finally, even were we to conclude that the trial court erred in permitting Avery to mention his belief that Strong belonged to a gang -- and we do not -- Strong has failed to demonstrate prejudice. Of the civilian witnesses, Downing was an admitted gang member, Valdez had a brother who was a gang member, and both he and Avery referred to each other during the trial by nicknames -- Hon and Gadget -- similar to those used by gang members. In addition, Valdez and Avery admitted being daily marijuana users hoping to score on the day of the killing, and Ochoa, the victim, was a drug dealer consistently referred to throughout the trial by his nickname Risky. During Strongs testimony, he used the participants monikers when describing their actions and showed familiarity with gang terminology, such as his reference to Valdez and Avery as little wanna bes and protgs. It would have been a hopeless task to keep all gang-related references from the jurors or prevent them from speculating about Strongs status. At the same time, the fact that gang and drug references permeated the case and infected nearly all the principals makes it highly unlikely that the jury was unfairly prejudiced against Strong because of a single reference to the possibility that he was linked to a gang.

2. Voluntary Intoxication Instruction

After the close of evidence, Strongs counsel asked that the jury be given the voluntary intoxication instructions.^[17] The court stated that although there had been evidence Strong was confused and had a high blood alcohol content at the time of the arrest, I dont recall any evidence that your clients thought process was impaired at the time of the crime or that the alcohol he allegedly drank affected his mental state. Counsel responded that Strong had testified that there were times when he was . . . in shock or surprised and not sure what to do. He also argued that Strongs actions in staying with people who had commit[ted] this terrible act and keep[ing] the car afterwards for approximately ten hours could give rise to an inference that he was a person under the influence of alcohol who is not thinking reasonably as a sober person would. The court rejected that argument: [According to the Supreme Court,] there has to be specific evidence about the effect to ones mental state. And I dont find that here. [In addition,] I find quite a bit of evidence to the contrary through Mr. Strong. [] In very detailed testimony he doesnt even claim to have any great lapses in recollection about the events of that night so Im going to deny the instruction for that reason.^[18]

Strong contends the courts refusal to instruct on voluntary intoxication and its order barring defense counsel from arguing the issue were serious errors that deprived [Strong] of due process of law, a fair trial, the right to present a defense and the right to a jury determination of all issues, notably intent issues.^[19]

This issue is governed by section 22 which provides: Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act . . . [] . . . Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. As explained in People v. Horton, the Legislature amended section 22 in 1981 to abolish the diminished capacity defense. (People v. Horton (1995) 11 Cal.4th 1068, 1118.) However, [n]otwithstanding the abolition of the diminished capacity defense, evidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue. (Id. at p. 1119, italics omitted.) Two pertinent areas where intoxication can be used to negate the requisite specific mental state required to establish the crime are (1) where the defendant is charged as an aider and abettor (People v. Mendoza (1998) 18 Cal.4th 1114; see CALJIC No. 4.21.2), and (2) where the defendant is charged with murder (People v. Whitfield (1994) 7 Cal.4th 437, 451; see CALJIC No. 4.21.1).^[20]

Generally, [a] party is not entitled to an instruction on a theory for which

there is no supporting evidence. (People v. Tufunga (1999) 21 Cal.4th 935, 944, quoting People v. Memro (1995) 11 Cal.4th 786, 868.) In evaluating the evidence to determine whether a requested instruction should be given, the trial court should not measure its substantiality by weighing the credibility [of the witnesses] . . . . Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citations.] [Citations.] (People v. Tufunga, supra, at p. 944, quoting People v. Romo (1990) 220 Cal.App.3d 514, 519.)

Where the issue is whether to give voluntary intoxication instructions, the evidentiary prerequisite has been described as evidence from which a reasonable jury could conclude defendants mental capacity was so reduced or impaired as to negate the required criminal intent. (People v. Marshall (1996) 13 Cal.4th 799, 848.) Evidence that the defendant ingested a significant quantity of alcohol or tested over the limit for operating a motor vehicle alone does not support giving such instructions. (Id. at pp. 847-848.) [A] defendant is entitled to an instruction on voluntary intoxication only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants actual formation of specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715, quoting People v. Williams (1997) 16 Cal.4th 635, 677; see, e.g., People v. Marshall, supra, 13 Cal.4th at pp. 847-848 [evidence that defendant drank throughout the night, consuming champagne, brandy and malt liquor and had a .10 percent blood alcohol level three hours after his arrest did not support a conclusion that at the time of the offenses defendant was unable to premeditate or form an intent to kill where evidence of the effect of defendants alcohol consumption on his state of mind [was] lacking]; People v. Williams, supra, 16 Cal.4th at pp. 677-678 [where witness described defendant as probably spaced out on the morning of the killings and defendant told police he was doped up and smokin pretty tough then, trial court did not err in refusing voluntary intoxication instruction because there was no evidence at all that voluntary intoxication had any effect on defendants ability to formulate intent]; People v. Horton, supra, 11 Cal.4th at pp. 1117-1120 [although defendant presented evidence he had been freebasing cocaine prior to crime, because defense failed to introduce evidence of his actual mental state and prosecutions evidence support[ed] a finding that defendant was fully aware of his actions and intended their fatal consequences, trial court properly found evidence insufficient to warrant intoxication instructions].)

We agree with the trial court that there was no evidence Strongs thought process was impaired at the time of the crime or that the alcohol he allegedly drank affected his mental state. Strong testified that he could not recall precisely, but that he believed he drank a great deal on the day of the murder, as was his habit. He claimed not to remember anything prior to his arrival at his friends mobile home, nor even how he and Koufos were transported. However, his memory of the events leading up to the killing was clear and his account of them detailed. He remembered what Koufos said to him. He remembered specific conversations with Aaron, Valdez and Avery. He remembered specific thoughts that went through his head. He remembered comments made by the Sobalvarros during and after the killing. He remembered the activities that led to the burning of the body in the desert. Indeed, Strong testified at trial that he remember[ed] everything after he arrived at the Sobalvarros mobile home and had no problem recollecting what happened. On this record, there was no basis for the jury to find that Strongs intake of alcohol affected his mental processes or caused mental impairment sufficient to negate any element of the crime. Accordingly, the trial court properly declined to give voluntary intoxication instructions.

3. Imperfect Self-Defense

After the close of evidence, Strongs counsel asked the court to give instructions on manslaughter. Counsel argued that the jury could have found Strong guilty of manslaughter based on the evidence that Koufos told Strong that Diego was having a problem with someone who had a gun. The court denied the request, noting that there is no testimony that [Strong] was having problems with anybody or that when he got [to the Sobalvarros mobile home] he was having problems . . . . [] As I recall his testimony was quite to the contrary. He said he didnt do anything. The jury was given instructions on first and second degree murder, but not manslaughter. Strong contends the courts refusal of the request denied [him] due process of law, a fair trial, the right to present a defense, and the right to jury determination on all issues.

There is no dispute that in a murder trial, the court . . . must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] (People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.) The crime of murder requires proof of malice aforethought. (Id. at p. 460.) Where the defendant kills in the unreasonable but good faith belief he or she was acting in self-defense or in defense of another, malice is nullified because that most culpable of mental states cannot coexist with an actual belief that the lethal act was necessary to avoid ones own death or serious injury at the victims hand. (Id. at p. 461, quoting People v. Flannel (1979) 25 Cal.3d 668, 675; accord, People v. Randle (2005) 35 Cal.4th 987, 995-997.) Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. (People v. Rios, supra, 23 Cal.4th at p. 463, fn. 10.) On the other hand, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding that the offense was less than that charged, is lacking. (Ibid., quoting People v. Sedeno (1974) 10 Cal.3d 703, 715.) The prosecution is not required to negate imperfect self-defense in its

case-in-chief, and unless the Peoples own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendants obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. (People v. Rios, supra, at pp. 461-462.)

Nothing in the prosecutions case here suggested any reason to believe that Strong or the Sobalvarros were acting in self-defense, reasonable or otherwise. The testimony of Valdez and Avery was of an unprovoked attack on an unarmed man, who was immediately rendered unconscious and, within minutes, strangled to death. Thus, the issue is whether the defense presented evidence sufficient to raise a reasonable doubt as to whether Strong acted on an unreasonable belief in the need to defend himself or others. Clearly, it did not. Strong testified that when Koufos told him Diego was having problems with someone who had a gun, Strong didnt believe [Koufos], but concluded he was overreacting because he always overreacts. Consequently, there was no basis for the jury to conclude that Strong unreasonably but sincerely believed he had to act in order to protect himself, Diego or anyone else. Moreover, as the trial court noted, Strong did not describe his reaction to hearing the statement in a way that would support imperfect self-defense. He did not claim, for example, that he rushed to the scene and struck Ochoa in order to defend Diego. He testified he and Koufos had nothing to do with the crime, were surprised by the actions of the Sobalvarros, and were, at most, accessories after the fact in helping dispose of the body.

On appeal, Strong contends that the jurors here could well find neither appellant, Avery, nor Valdez gave the full story of what happened outside the trailer. . . . [] . . . [] . . . If a fight broke out and [Strong] believed the victim had a gun, his punch or his ganging-up on the victim could indeed have occurred in an honest, if unreasonable, fear the victim was armed. Imperfect self-defense cannot be established by surmise and conjecture. As noted above, Strong denied believing Koufos when Koufos said Diego was having problems with someone with a gun, eliminating the key element of the defense. More importantly, Ochoa was not beaten to death, but was deliberately strangled. The jury could not reasonably have concluded from the evidence presented -- a surprise attack, an unconscious victim and death by strangulation -- that any of the assailants were motivated by concerns for the safety of himself or others.

Finally, it is well established that the imperfect self-defense doctrine may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified.

(In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)^[21] Even if the jury could somehow have come to the conclusion that a fight broke out, the only evidence to suggest who started such fight was Valdezs and Averys testimony that Koufos grabbed Ochoa and Strong struck him. Any physical response by Ochoa thereafter could not have supported invocation of imperfect self-defense by his attackers.

4. Aider and Abettor Liability

a. Natural and Probable Consequences Doctrine

Strong contends the court had a sua sponte duty to instruct on involuntary manslaughter, based on the natural and probable consequences doctrine . . . as applied in [People v.] Woods [(1992) 8 Cal.App.4th 1570 (Woods)]. Focusing on the prosecutors theory that regardless of whether Strong personally strangled Ochoa, he was culpable as an aider and abettor, Strong asserts that the evidence presented at trial could have supported that he intended to aid and abet an assault. He further asserts that murder was not the only natural and probable consequence of such an assault . . . , but that the jury could have found that a reasonable person would have foreseen one of several forms of involuntary manslaughter.

Strongs argument represents a misunderstanding of when the duty to instruct the jury on natural and probable consequences arises and the nature of the instruction that is given. The natural and probable consequences doctrine is at issue where the prosecutor seeks to convict the defendant of one offense (the charged offense) based on his actions in aiding and abetting a different offense (the target or predicate crime). Under the natural and probable consequences doctrine, the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged. (People v. Villa (1957) 156 Cal.App.2d 128, 134; accord, People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; see People v. Culuko (2000) 78 Cal.App.4th 307, 322.)

The doctrine does not assist a defendant seeking to mitigate or nullify malice. To the contrary, it permits an aider and abettor to be found guilty of murder without malice. (People v. Culuko, supra, 78 Cal.App. 4th at p. 322.) Where two or more defendants commit an unlawful act from which death results and only one actually harbored malice, all may nevertheless be found guilty of murder as long as the death was a natural and probable consequence of the original act contemplated. (Ibid.) In other words, an aider and abettor can be found guilty of murder not only when he or she is aware that the principal intends to kill the victim, but also when he or she is aware that the principal intends to engage in any other crime the foreseeable result of which might be murder. (People v. Avila (2006) 38 Cal.4th 491, 565.)

In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), the California Supreme Court held that under quite limited circumstances, the trial court has a sua sponte duty to give instructions which identify and describe the target crimes that the defendant might have assisted or encouraged. (Id. at pp. 254, 269.) The purpose of such instructions is to eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal (ibid.), and to prevent jurors from convicting the defendant of the charged offense based on a plan to commit a trivial offense or a non-criminal act. (See id. at p. 268 [[A] conviction may not be based on the jurys generalized belief that the defendant intended to assist and/or encourage unspecified nefarious conduct.]; People v. Hickles (1997) 56 Cal.App.4th 1183, 1197 [reversing murder conviction where natural and probable consequence instruction not given and evidence unclear as to whether defendant intended to aid and abet a murder, an assault with a deadly weapon, a simple assault, or even an argument].)

The duty under Prettyman arises only when the prosecution has elected to rely on the natural and probable consequences theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory. (14 Cal.4th at p. 269, italics added and omitted.) Moreover, [t]he trial court . . . need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider. (Ibid., italics added and omitted.)

The holding of Prettyman resulted in the promulgation of CALJIC No. 3.02, which provides that in order to find a defendant guilty of a charged crime, the jury must be satisfied beyond a reasonable doubt that: (1) the predicate or target crime was committed; (2) the defendant aided and abetted the target crime; (3) a co-principal in the target crime committed the charged crime; and (4) the charged crime was a natural and probable consequence of the commission of that target crime[]. CALJIC No. 3.02 had no relevance here and the natural and probable consequences doctrine was not an issue, because the prosecutor did not attempt to obtain a murder verdict by establishing that Strong and his codefendants intended to commit some target offense other than murder. The prosecutions theory was that (1) Strong and the others entered into a plan to murder Ochoa and (2) regardless of whether he personally strangled Ochoa, Strong aided and abetted the murder by attacking the victim, rendering him unconscious and helpless.^[22] Accordingly, there was no cause for the trial court to concern itself or the jury with the natural and probable consequences doctrine or CALJIC No. 3.02.

b. Lesser Included Offense

Stripped of the irrelevant discussion of the natural and probable consequences doctrine, the issue presented by Strongs fourth argument is whether there was evidentiary support for giving instructions on involuntary manslaughter. Strong contends the jury could have inferred the victim was ganged up on and stomped from Koufoss comment about a gun, Strongs injured knuckle, Valdezs testimony that he heard stomping noises coming from the mobile home after the unconscious Ochoa was carried inside, and the evidence that Ochoa was at the mobile home to transact a drug deal. Strong argues that the jury could have found that he intended only to aid and abet this beating rather than the murder.

As we have said, [a] party is not entitled to an instruction on a theory for which there is no supporting evidence. (People v. Tufunga, supra, 21 Cal.4th at p. 944, quoting People v. Memro, supra, 11 Cal.4th at p. 868.) A trial court need not, even if requested, instruct on a lesser included offense if the evidence is such that the defendant, if guilty at all, is guilty of something beyond the lesser offense. (5 Witkin and Epstein, Cal. Criminal Law (3d ed. 2007 supp.) Criminal Trial,  630, p. 342.)

It is true that an unintentional death that results from an assault and battery can be classified as involuntary manslaughter. (People v. Cox (2000) 23 Cal.4th 665, 674; see 192, subd. (b) [defining involuntary manslaughter as the killing of a human being without malice that occurs in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.].) However, where the evidence at trial clearly shows an intentional killing, no instructions on involuntary manslaughter are required. (People v. Manriquez (2005) 37 Cal.4th 547, 588 [even if defendant fired first shot unintentionally, trial court not required to instruct on involuntary manslaughter where evidence established that defendant continued to fire weapon, inflicting at least one other fatal wound intentionally]; People v. Hendricks (1988) 44 Cal.3d 635, 643 [although defendant denied intent to kill, he shot one victim six times at point-blank range and other victim five times at point-blank range].) A court is not obligated to instruct sua sponte on involuntary manslaughter as a lesser included offense unless there is substantial evidence, i.e., evidence from which a rational trier of fact could find beyond a reasonable doubt [citation] that the defendant killed his victim in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; [Citation.] . . .  (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, quoting 192, subd. (b).) Referring to the quantum of evidence needed to support giving involuntary manslaughter instructions, the Supreme Court has said: [S]peculation is not evidence, less still substantial evidence. (People v. Berryman, supra, 6 Cal.4th at p. 1081.)

Evidence to support an involuntary manslaughter verdict was completely lacking here. Ochoa did not die from a blow or a beating; he was intentionally strangled. Strongs theory that the perpetrators intended an assault rather than murder was not raised at trial and is based on sheer spe