P. v. Tinoco

Filed 9/16/08 P. v. Tinoco CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed with directions.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Shawn McGahey Webb and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Omar Tinoco of one count of special-circumstance first degree murder (Pen. Code, 187, subd. (a); 190.2, subds. (a)(3), (a)(10), (a)(22));[1]one count of second degree murder; one count of conspiracy to commit torture ( 182, subd. (a)(1)); and one count of torture ( 206). The jury acquitted defendant of one count of attempted murder. After a penalty phase trial, the jury recommended that defendant be sentenced to prison for life without the possibility of parole. The trial court sentenced defendant to four consecutive life sentences, including life without the possibility of parole on his first degree murder conviction. For the reasons stated below, we affirm.

BACKGROUND

A. Summary of the Facts

Defendant was a member of the South Los street gang and was known by the gang moniker Gadget. This case involves three distinct crimes: (1) the murder of Ronald Tyson, a witness in a homicide case against one of defendants fellow gang members; (2) the conspiracy to torture and the torture of Ahmad Khrino, for which defendant was recruited and paid by Atbeisat Mohamedith to punish Mohamediths ex-wife and her new husband; and (3) the murder of Atbeisat Mohamedith. We provide a brief overview of the facts in this Part A. In Parts B and C post we set forth the facts witness by witness, due to the number of people and crimes involved.

1. Murder of Ronald Tyson

On September 10, 2003, a South Los gang member named Chindio Medrano, also known as Crazy, was arrested for the murder of Mario Williams. Williams was thought to be an associate of the 118th Street East Coast Crips street gang. Ronald Tyson, whose nickname was Green Eyes because of his distinctive green eyes, witnessed the murder of Mario Williams. On September 20, defendant and three other menJose Rodriguez, also known as Flaco; Joses brother, Victor Rodriguez; and a man referred to only as Tokerpicked Tyson up in a black Volkswagen Jetta for the ostensible purpose of dissuading him from testifying against Chindio Medrano. When Tyson refused to be dissuaded, defendant shot him four times, killing him. Defendant later spoke to Chindio Medrano on the phone and told him that he and Jose Rodriguez had killed Green Eyes.

2. Conspiracy to Torture and Torture of Ahmed Khrino

In mid-2003, defendants then-girlfriend, Gicela Carmen Prieto (known as Carmen), owned a home at 142 West 111th Street in Los Angeles. The lot had two houses, referred to as the front house and the back house. Carmen and her two children resided in the front house. Staying in the back house were defendant; Jose Rodriguez; Jorge Delgado; and by September 2003, David Cossio, also known as Snappy. There was evidence that defendant and Jose Rodriguez dealt drugs from the back house. Jose Rodriguezs girlfriend at the time was Araseli Medina.

Among the people who frequented Carmen Prietos house was Atbeisat Mohamedith, a Jordanian who went by the name of Omar. Mohamedith was divorced from his wife, Rola Sharab, in 2000. Sharab subsequently married another Jordanian, Ahmed Khrino. After Sharab married Khrino, Mohamedith repeatedly threatened them, vowing to make them suffer all their lives. Khrino and Sharab lived in San Leandro, California, approximately 360 miles north of Los Angeles.

On May 1, 2003, defendant and an unknown accomplice laid in wait for Khrino outside of his apartment building in San Leandro and attacked him with sticks that resembled policemens batons. Before defendant struck Khrino, Khrino asked defendant what was going on. Defendant replied, You know whats going on. Khrino was repeatedly struck on the head by defendant and his accomplice. Khrino was severely injured.

In August 2003, Mohamedith offered defendant, Jose Rodriguez and others $2,000 each to get Khrino and, in effect, emasculate him. Shortly thereafter, Jose Rodriguez, Jorge Delgado, Carmen Prieto and Araseli Medina went to San Leandro. They attempted to follow Khrino to work but lost him; they later tried but failed to lure Khrino from his apartment, with Prieto masquerading as a delivery woman to induce Khrino to open his door. They returned to Los Angeles. Mohamedith was upset that the plan had failed, and later offered $1,000 for someone to throw acid in his ex-wifes face.

3. Murder of Atbeisat Mohamedith

On the night of September 22, 2003, Mohamediths van was parked in front of 157 West 111th Street, a few houses away from Carmen Prietos house. Defendant and Cossio were seen looking in the back of Mohamediths van, which was filled with boxes. Defendant apparently was looking for smelling oils. Shortly thereafter, seven to ten shots were fired. Mohamedith lay dead in the street next to his van. A few moments later, defendant and Cossio ran into the backyard of Prietos house. Cossio was carrying an AK-47. Defendant told Carmen not to come out of the house; he and Cossio then fled by jumping over the back fence. Defendant later called Bernice Garcia Sanchez, a former girlfriend and the mother of defendants child, and told her he had shot someone in front of his house. In addition, shell casings found at the scene of Mohamediths murder matched shell casings found at the scene of Tysons murder.

B. The Prosecution Case

1. Lawrence Crain

On September 20, 2003, Melvin Gill came to visit Lawrence Crain at his house on 109th Place in south Los Angeles during the day. Crain saw a black, newer model Volkswagen come down his street; he identified a photograph of the Volkswagen. He saw it pass by his house three times before it parked in the alley. After the car stopped, a tall, thin Hispanic male wearing jeans and a white t-shirt got out and stood by the drivers side back tire of the car. An African-American male that Crain knew from the neighborhood got out of the back passenger side of the car. Before the African-American man straightened up, the Hispanic male shot him in the head, then shot him again a couple of times. After the first shot, the African-American man fell to the ground; the Hispanic man stepped toward him and shot him again as he lay on the ground. The Hispanic man got back in the car. As the car drove away, the Hispanic man shot the African-American man again in the back. Crain identified defendant from a photo lineup and in open court, stating both times that defendant look[ed] like the person who shot the African-American male. Crain also identified a photograph of the victim.

2. Melvin Gill

In September 2003, Melvin Gill went to visit Crain at 10:00 or 11:00 a.m. He saw a black Volkswagen with tinted windows driving slowly down the street. He identified a photograph of the Volkswagen. The Volkswagen stopped in an alleyway 35 to 40 yards away. A young African-American man approximately six feet tall stepped out of the rear drivers side door. Seconds later, another person stepped out of the same door wearing a hat. The second person immediately stretched out his arm and fired two or three shots, from a distance of eight to 10 inches, into the head of the African-American man. The second person was Latino. The African-American man immediately fell face down on the ground. The Latino man got back in the car and fired an additional three shots into the back of the African-American man as the car was pulling away. Gill identified defendant in court as the shooter.

3. Roger Steven Zubia

Roger Zubia knew a person by the nickname Green Eyes (Ronald Tyson) for a couple of years. Green Eyes was murdered on September 20, 2003. Zubia had been with Green Eyes earlier that day at an apartment complex across from where Green Eyes lived on Avalon Boulevard. Also present was Esteban Lopez, who lived in the complex. They were hanging out for two or three hours that morning when a black Volkswagen Jetta pulled up to where they were standing. Two males got out of the car. One was bald and Hispanic; the second was Hispanic and wearing glasses. The bald male spoke to Green Eyes, offering to give him $5 and buy him some beer if he would show the man where someone lived. Green Eyes said he knew where the person lived. Green Eyes refused several times, but eventually agreed. The man nudged Green Eyes out of the gate. Green Eyes got in the back seat of the car, as did the bald man. The man with glasses got in the drivers seat. The car drove north on Avalon. Zubia found out several hours later that Green Eyes had been shot. The next day or a few days later, Zubia saw the bald man again in the same apartment complex and recognized him. Zubia identified defendant from a photo lineup and in court as the bald man.

4. Cipriano Patino

Cipriano Patino knew Carmen Prieto and that she lived on 111th Street. He had met Flaco (Jose Rodriguez). He did not know Snappy. He had heard of defendant because he used to go to Carmens house to buy drugs, but he did not know defendant. One time when he was at Carmens house to buy drugs in September 2003, they told him to stay in the house. It was late afternoon. He was in the house 30 to 45 minutes. When he went outside, there were many police officers. He was interviewed by police later. He lied to the police because he was afraid. He falsely told police that he had seen a short guy holding a gun. Most of Patinos statements regarding the Mohamedith murder were presented to the jury through the testimony of Detective Hahn. (See post.)

5. Detective Linda Compton

Detective Linda Compton of the Los Angeles Police Department (LAPD) was the investigating detective assigned to the homicide of Mario Williams. Williams was killed at the corner of Avalon and Imperial. Tyson was listed as a witness in the case. Tyson was killed on September 20, 2003, within a month of the next court date in the Williams case. Chindio Medrano had been arrested in connection with the Williams homicide on September 10, 2003. Medrano eventually pleaded guilty to manslaughter. He was no longer in custody at the time of the trial in this case. Tyson had told Detective Compton that he had not seen the shooting, but he was present and was approximately six feet away from Williams when Williams was killed. Williams was an associate of the 118th Street East Coast Crips street gang. Detective Compton never determined whether Tyson was associated with the gang.

6. Maria Cruz

Maria Cruz cohabited with Chindio Medrano and had two children with him. Medrano was known by the gang monikers Crazy and Gumecido. After Medrano was arrested in September 2003, Cruz helped him make a conference call to Carmen Prietos house, where they spoke with defendant, a friend of Medranos. Defendant said that he and Jose Rodriguez had gone to look for a guy named Green Eyes and had killed him.

7. Victor Rodriguez

Victor Rodriguez was the younger brother of Jose Rodriguez. In September 2003, Victor went with his brother in a black Jetta. They picked up two males, both Hispanic. Both got in the back seat. Jose Rodriguez was driving. They then went and picked up a Black man, who also sat in the back seat, in the middle. After that, they drove around and eventually stopped. Somebody got out of the back seat and Victor heard a loud bang. The person got out on the drivers side. Victor did not look back. After the bang, someone got back in the car.

Victor was interviewed by police in October 2003. Victor told police that after the Black male got out of the car, he heard gunshots. The car was stopped at a dead end street. Including Victor and Jose, there were five people in the car at the time of the shooting; Victor had never seen any of the other three before. Victor had gone with Jose because Jose wanted a friend of Victors to install or fix a radio in the car. Victor had not known what was going to happen that day. Victor had identified a photo of defendant from a photo lineup, wrote shooter by the photograph and signed the card.

8. Araseli Medina

Araseli Medina was the former girlfriend of Jose Rodriguez. Jose told her he used to belong to the Watts Mafia street gang. Medina owned a black 2000 Volkswagen Jetta. In September 2003, Jose borrowed the Jetta to wash it, but was gone for about four hours. It was about noon when he left; he was with his brother, Victor. When he returned he seemed a bit nervous and was biting his nails. Joses friends called him Flaco. He was living near 111th and Main at the time with Carmen, George and defendant. There were two houses on the lot; Jose lived in the back house with defendant and George. George was Jorge Delgado.

Medina sometimes saw a Muslim person who called himself Omar at Joses house. Omar was in his late 30s or early 40s. Medina identified a photo of Atbeisat Mohamedith as Omar. Medina overheard a conversation in which Omar said he would pay George, Jose, defendant, and possibly Carmen to get a person because Omars wife was cheating on him. He was going to pay $2,000 per person. At one point, they talked about cutting off the persons penis. At another point, shortly after Medinas birthday in early September 2003, Omar was upset because they had not harmed the person they were supposed to harm. He said this to Jose, Carmen and George. Omar drove a green or blue GMC Astrovan.

Medina knew a person named Snappy who started showing up at Joses house in September. She saw a rifle and a handgun at Joses house. Medina identified a photograph of defendant holding a firearm similar to one she saw in the house.

In mid-2003, Carmen drove a blue Toyota Camry. Sometime prior to Medinas birthday in early September, she took a trip in Carmens car with Jose, George and Carmen. They went to Oakland, California, with Jose driving. When they arrived, they parked in a parking lot across from some apartments for an hour or so. Then, a man came out of the apartments, entered his car and drove away. Medina and her companions followed the car toward downtown Oakland for about 20 minutes before they lost sight of the car. They drove back home the same day. Medina did not know the purpose of the Oakland trip; Jose had told her they were going to Oakland to celebrate her birthday. Medina identified a photograph of Crazy (Chindio Medrano) as a person who associated with Jose, defendant and George.

9. Dr. Raffi Djabourian

Dr. Raffi Djabourian was a forensic pathologist with the Los Angeles County Department of the Coroner. He conducted the autopsy of Ronald Tyson. Tyson died of multiple gunshot wounds; he was shot four times. Three of the wounds were fatal. The first wound was to the left side of Tysons head toward the back. A medium caliber bullet, such as a nine-millimeter or .32-caliber bullet, was recovered from Tysons brain. The second wound was to the left cheek near the nose; the bullet exited the back left of Tysons neck. Stippling, caused by unburned gunpowder residue, was present on Tysons left cheek, indicating the shot was fired from less than two feet away. The first and second wounds each caused sufficient damage to kill. The third wound was to Tysons back, with the bullet exiting the front of the right shoulder in an upward trajectory, consistent with a shot fired into the back of a person lying face down from the foot end of the body. The fourth wound was to Tysons left middle finger.

10. Detective Roger Allen

In 2003, Detective Roger Allen was an LAPD homicide detective assigned to the Tyson killing. He and a team of eight detectives conducted a search of both houses at 142 West 111th Street in October 2003. In the front house, they found a loaded shotgun near the entrance; a small replica baseball bat; ammunition, including pistol rounds of various types (nine millimeter and .25, .32, .38 and .45 caliber), 7.62-millimeter Wolf rounds (for an AK-47 or similar weapon), .410-bore and 12-gauge shotgun rounds, and .223-caliber rounds (for an M16); a substance resembling methamphetamine; various bills in the name of Gicela Prieto; identification in defendants name; and correspondence addressed to both Prieto and defendant. They also found a letter from defendant to Prieto and a photo album. The detectives did not find any weapons in the back house.

11. Gicela Carmen Prieto

Gicela Carmen Prietos friends called her Carmen. In August 2003, Prieto owned a blue Toyota Camry with the license plate G-I-C-E-L-A-S and a Wonder Woman sticker on the back window. Prieto lived in the front house at 142 West 111th Street with her two children; residing in the back house were Jose Rodriguez, George Lozano and Jorge Cossio. She was dating defendant at the time, who was at the house to take care of Prieto and her assets. Some of defendants property was at the house. She referred to defendant as Gadget. She knew Jose Rodriguez as Flaco. She knew Cossio as Snappy.

Prieto knew an Arab man who called himself Omar. She met him in August 2003. Prieto pleaded guilty to conspiring with Omar to commit an assault on Khrino in Northern California. Omar didnt want [Khrino] to be able to function in bed. Prieto went to Northern California with George Delgado, Jose Rodriguez and Araseli Medina. They took turns driving. They arrived at dawn, and attempted to follow Khrino to work, but they lost him. They parked in the parking lot of a shopping center. Later, with the small replica baseball bat recovered from Prietos house, they went inside the apartment complex where Khrino lived. They knocked on the door of Khrinos apartment; Prieto told Khrino they were delivering roses. Jorge Delgado and Jose Rodriguez stood off to the sides of the door. Khrino said that he hadnt ordered anything and refused to open the door. They returned to Los Angeles.

Prieto lied when she spoke to Detective Mark Hahn. Omar used to call her at work to ask, Whats going on? At some point, Omar told Prieto he had given $2,000 to Jorge. The night Omar was shot, he told Prieto that he would pay $1,000 if they would put acid in his ex-wifes face. Snappy was present. Later, she heard the sound of two gunshots coming from the street. Prieto kept a shotgun, a nine-millimeter pistol and a .22-caliber pistol at her house because she lived in a dangerous neighborhood. She denied selling drugs out of her house, but said that George and Flaco did.

12. Bernice Garcia Sanchez

Bernice Garcia Sanchez met defendant through one of her cousins and dated him. One of her two children was fathered by defendant. Defendants friends called him Gadget. He was living in a back house in Los Angeles with some other people, including George. Carmen lived in the front house. Sanchez visited the property five or six times. The door to the back house was kept locked; defendant had a key to open the door. She saw big guns in the back house. She saw defendant with a long gun like a rifle.

In the fall of 2003, defendant called Sanchez and told her that he and a friend had shot a person in front of his house. He was not in custody at that time; the next time she heard from him, he was in custody. Sanchez saw defendant selling drugs out of the back house. When defendant told her he had shot someone, he said he did it because he thought the victim was going to shoot defendants friend.

13. Rola Sharab

Rola Sharab was married to Atbeisat Mohamedith from 1992 to 2000. They had one child together. Both she and Mohamedith were Jordanian. After they separated, Sharab returned to Jordan.

While in Jordan, Sharab met and started dating Ahmad Khrino. Khrino moved to the United States in December 2001. Sharab followed six months later, and married Khrino in June 2002. When Sharab tried to contact Mohamedith because their child wanted to speak to him, Mohamedith threatened to cut her hands and throw battery acid in her face, so that she and her husband would suffer all their lives. There were five or 10 such incidents.

In May 2003, Khrino was attacked. They were living in San Leandro. After Khrino was attacked, unauthorized charges appeared on their credit card bills.

14. Ahmad Khrino

In 2003, Sharab and her new husband, Ahmad Khrino, lived in an apartment in San Leandro. A Safeway supermarket with a parking lot was across the street from the apartment building.

At 5:30 a.m. on May 1, 2003, Khrino left the apartment building to go to work. As he went to his car parked on the street, he saw movement and saw at least two men hiding behind and between some small trees or bushes. One man started running toward him; Khrino unsuccessfully tried to escape back into the apartment building. Khrino asked what was going on; one of the men responded, You know whats going on. The man drew a stick, like a policemans baton, from under his jacket. Khrino was struck multiple times in the head by at least two assailants. Khrino fell to the sidewalk bleeding; the men ran away down the street. Khrinos wallet, including a Wells Fargo bank card, was missing. Khrino was treated by paramedics and transported to the hospital. By the time he arrived, he had lost consciousness. He was hospitalized for five days and underwent several surgeries. He was unable to return to work for eight months.

Approximately two months after he was attacked, a woman came to Khrinos door and said she had a delivery. She asked him to open the door. Khrino thought she did not look like a delivery woman, and saw two suspicious looking men standing outside his door. He said he was going to call the police. Another time, Khrino noticed as he was driving to San Francisco that he was being followed by a blue car with two women and two men. The car had a Wonder Woman sticker on the back window.

Khrino later identified the men who attacked him and a woman who looked like the purported delivery woman from photo lineups. Khrino identified defendant in court as the man who had spoken to him and then assaulted him in May 2003.

15. Officer Kendrick Shedd

Officer Kendrick Shedd was a patrol officer with the San Leandro Police Department. He responded to the attack on Khrino on May 1, 2003. Khrino had suffered a severe head laceration.

16. Sergeant Doug Calcagno

Sergeant Doug Calcagno was, in 2003, a San Leandro police detective assigned to investigate the assault against Khrino. In October 2003, Khrino identified defendant from a photo lineup as one of the men who assaulted him. Khrino failed to identify Jose Rodriguez as the second man, however, and identified a filler photo instead. Khrino identified Prieto from a photo lineup as the purported delivery woman.

17. Jose Rodriguez

Jose Rodriguez went by the name Flaco. His younger brother was Victor Rodriguez. On September 20, 2003, Jose took Araseli Medinas black Jetta to talk to Green Eyes because Green Eyes was going to testify against a friend, Chindio Medrano. Medrano also goes by the name Crazy. Jose was going to tell Green Eyes not to go to court. Jose was driving; he picked up defendant and, at defendants direction, another Hispanic male called Toker who Jose did not know. Jose did not have a gun, and did not know that defendant had a gun. After they located and picked up Green Eyes, they drove around for about ten minutes before they stopped. They stopped to let him out. While they were driving, Jose and defendant both asked Green Eyes whether he was going to court; Green Eyes said that he was. When they stopped, Green Eyes got out of the rear drivers side door. When Green Eyes got out of the car, defendant shot him twice in the head. They left; Rodriguez dropped defendant off at the 111th Street house. Jose testified that he and Victor were both shocked and surprised when defendant shot Tyson.

Jose went to Northern California with defendant on a couple of occasions. Once they went to find the person Mohamedith wanted; Mohamedith had offered money to find where this person was. Carmen and defendant were both there when this was discussed.

Jose was at Carmens house when Mohamedith was shot. It was in the evening; Jose was in the back house. Jose heard approximately 10 gunshots. Jose went to see what was happening. Mohamedith was dead in the street. Jose saw Snappy, carrying an AK-47, running away. Defendant was running with Snappy.

Jose believed that Tyson was a member of a Crips street gang. Medrano was a member of South Los at the time Tyson was shot. Defendant assaulted Jose in March 2004, while both were being held in lockup in Compton. In connection with the Tyson incident, Jose had been convicted of dissuading a witness and sentenced to seven years imprisonment. He was never charged with Tysons murder.

18. Detective Mark Hahn

Detective Mark Hahn was an LAPD homicide detective who, in 2003, was assigned to investigate the killings of Ronald Tyson and Atbeisat Mohamedith. Detective Hahn arrived at the Tyson crime scene at approximately 5:30 p.m. on September 20, 2003. Tysons body was still at the scene. Tyson was on his side with his legs twisted underneath him; he had apparent gunshot wounds to his head and back. Police recovered two .32-caliber bullet casings and one nine-millimeter bullet casing.

Detective Hahn was assigned to the Mohamedith homicide on September 22, 2003. He arrived at the crime scene in the late evening. Mohamediths body was found in the street near the drivers door of a blue minivan. Mohamedith was lying on his back; he had one gunshot wound in his lower neck and two in his torso. The front drivers side and passenger side windows of the minivan were broken out; there were pry marks near the rear cargo door lock. The rear cargo door and the sliding passenger door were open. There were many boxes in the van. Police observed six strike marks on the asphalt, probably caused by gunshots. Eight 7.62-millimeter bullet casings and two nine-millimeter bullet casings were found at the scene. Police also collected one straw hat and one baseball hat. Police later determined that the straw hat contained DNA of someone other than defendant or Cossio; the baseball cap contained Cossios DNA. There was a box on the ground to the rear of the van. Mohamediths body was found at 157 West 111th Street, just a few houses away from Carmen Prietos house at 142 West 111th Street.

Detective Hahn testified that, in an interview about the Tyson homicide, Jose Rodriguez stated that he had asked defendant how he felt after shooting Tyson. Defendant responded, Cool.

In an interview, Victor Rodriguez told Detective Hahn that he and Jose had gone in a black Volkswagen Jetta and picked up two Hispanic males, and then picked up a Black male from some apartments. While they were driving, the individual sitting behind the driver started talking shit to the Black male. The Black person got angry. The Hispanic then told the Black male to stand up and get outside. As the Black male was getting out, Victor Rodriguez heard two gunshots. Victor Rodriguez had identified defendant as the shooter in a photo lineup.

Detective Hahn had interviewed Cipriano Patino. Patino had told him that, when he got to Carmen Prietos house the night Mohamedith was killed, there was a group of people by the back house, including defendant, Jose Rodriguez and Cossio. Carmen was in the front house. Patino went to the back house to fix a door lock. He heard gunshots, then saw defendant and Cossio run from 111th Street to the back door of the front house. Cossio was holding an AK-47. Defendant told Carmen not to come out of her house. He and Cossio then ran through Carmens yard and jumped the fence. Patino told Detective Hahn that he had met Mohamedith, and had seen defendant dealing with him about a month and a half before Mohamedith was killed. Mohamedith wanted defendant to go to Oakland to stomp a guys balls. Patino identified defendant as Gadget from a photograph found at Carmen Prietos house.

Detective Hahn had interviewed Carmen Prieto while she was in custody on an unrelated charge. She told Detective Hahn that, the night Mohamedith was killed, Jose Rodriguez, defendant, Cossio, Patino and others were out by the back house. Before the shooting, Mohamedith had come over. Mohamedith told Carmen that he had given Jorge money to beat up Khrino. Mohamedith showed her a picture of his ex-wife and a kid, and said he would pay $1,000 to someone to put acid on his ex-wifes face. Right before the shooting, she had seen defendant and Cossio in the back of Mohamediths van while defendant looked for smelling oils. Cossio was holding the AK-47. Defendant was wearing a straw cowboy hat and a white jacket; Cossio was wearing a blue baseball cap. She went into her bedroom, where she heard a gunshot, then some more shots. Defendant came to her back door and yelled for her and told her that somebody got shot out front. Defendant and Cossio ran through the backyard. Carmen went out front and drove to 112th and Main, where she picked up Cossio next to some pink apartments. Defendant called and told her to pick him up at his uncles house on 111th Place near Main Street. After Carmen picked defendant up, they went to Carmens sisters house.

In 2001, Detective Hahn investigated a homicide involving Miguel Angel Lopez, a member of South Los. Lopez was convicted of murder and sent to prison in December 2002. As defendant, Lopez also was known by the gang moniker Gadget.

19. Deputy Timothy Lee

In October 2004, L.A. Sheriffs Deputy Timothy Lee was assigned to Mens Central Jail, where he became familiar with defendant. Deputy Lee searched defendants cell. He found a Styrofoam cup with potential gang writing on it.

20. Deputy Edward Garcia

In October 2004, L.A. Sheriffs Deputy Edward Garcia was assigned to the Compton courthouse. As the deputies were transferring inmates from the morning buses to holding cells, Deputy Garcia heard a thumping sound, like someone was being hit. Deputy Garcia looked through the observation window and saw two inmates fighting. Defendant was standing over Jose Rodriguez, who was on his hands and knees. Deputy Garcia removed Jose Rodriguez from the cell; he was bleeding from a small laceration on the side of his head. Defendant exhibited redness on his knuckles and was breathing heavily.

21. Rafael Garcia

Rafael Garcia was a criminalist in the firearms analysis unit of the LAPD crime lab. In October 2004, he examined three nine-millimeter shell casings from two separate incidents (the Tyson and Mohamedith homicides) to determine whether they had been fired by the same weapon. Garcia concluded that all three shell casings had been fired by the same weapon. His conclusion was confirmed in an independent comparison by a second criminalist. Garcia was familiar with 7.62-millimeter ammunition; it was designed to be fired from a rifle.

22. Starr Sachs

Starr Sachs was a firearm examiner with the LAPD crime lab. Sachs was the quality control examiner with respect to Garcias comparison of the nine-millimeter shell casings. She also concluded that all three nine-millimeter casings had been fired from the same weapon.

23. Reron Paulino

Reron Paulino was sitting in a car with his girlfriend, Takeisha Ford, on West 111th Place (one block south of 111th Street) on September 22, 2003 at the time of a shooting. He heard seven shotsfirst five shots, then another two. Shortly after, he saw two individuals come out of his backyard, clambering over a wooden fence. One was carrying a sack; the other was carrying an assault weapon, like an AK-47, by a strap over his shoulder. They were running one after the other, as if trying to get away as quickly as possible. When he saw the assault weapon, he and his girlfriend hid, so he did not get a good look at the two men. Paulino guesstimated that the person with the assault weapon was Hispanic or light-skinned African American; he could not remember anything about the appearance of the person with the bag. He had described the person to Detective Hahn while his memory was fresher.

24. Takeisha Ford

Takeisha Ford was sitting in a car with Paulino on West 111th Place on September 22, 2003. She heard a gunshot. Shortly after, she saw a gun come over the back fence, then a person. She laid her seat back and hid. The person was wearing a white shirt.

25. Jose Angeli

Jose Angeli lived on West 111th Street On September 22, 2003, he heard seven shots. When he came out of his house, he saw a body in the street near the drivers side of a van. He had seen the van approximately ten minutes earlier; the man who was later killed had been behind the van looking in some boxes. Another person was on the passenger side looking at something. The other person was a man with a closely shaved head, wearing a white shirt. Angeli, who had been in the army in Honduras, said the shots sounded like an AK-47.

26. Dr. Pedro Ortiz

Dr. Pedro Ortiz was a medical examiner with the Los Angeles County Department of the Coroner. He performed an autopsy on Atbeisat Mohamedith. Mohamedith died of two fatal gunshot wounds. Mohamedith was shot in the back right of his neck; the bullet traveled right to left and back to front, fracturing the third through fifth cervical vertebrae and exiting the left side of his neck. He also was shot in the right side; the bullet traveled right to left, front to back and upwards. It went through the liver, kidneys, spleen and pancreas and fractured several vertebrae. The bullet exited the left lateral chest. There was also a superficial wound on Mohamediths left arm. Dr. Ortiz opined that the fatal wounds were more consistent with wounds caused by medium caliber ammunition (such as nine-millimeter ammunition) than wounds caused by high-velocity ammunition (such as 7.62-millimeter ammunition fired from a rifle), but Dr. Ortiz could not rule out entirely that the wounds had been caused by rifle shots.

27. Officer Gerardo Vejar

LAPD Officer Gerardo Vejar was assigned to the Hollenbeck Career Criminal Unit. He was formerly assigned to the Southeast Gang Unit. South Los (also known as Sur Los) was a gang whose territory was in south Los Angeles, centered just north of the intersection of the 110 and 105 freeways. The gang had approximately 250 members at the time of trial. The gangs activities included narcotics sales, shootings, assaults, witness intimidation and murder. South Los used the gang signs SXL, SXL 13, VSXL and Sur Los. The V was for varrio; the 13 was a reference to affiliation with the Mexican Mafia. The sign VSXL was on the Styrofoam cup seized from defendants cell by Deputy Lee in October 2004.

Officer Vejar opined that a person named Diego Marquez was a member of South Los in 2003. Marquez had admitted membership in the gang, and was known by the moniker Chato. Chindio Medrano was a documented member of South Los in 2003. Defendant had admitted to Officer Vejar in April 2003 that he was a member of South Los.

Officer Vejar said that letters written by defendant had gang significance. Specifically, defendant wrote a letter to his son stating that he had named his son Angel in honor of Miguel Angel Lopez, a member of South Los who had been convicted of murder in 2002. In another letter, defendant told his son about his experiences in jail, stating that he had to endure it and be down for the cause, and that he was still devoted to the lifestyle. Officer Vejar believed that this indicated that defendant was still involved with the gang even while in jail. Other passages in the same letter, in which defendant referred to himself as a soldier and to his soldiers creed, were consistent with a warrior mentality among gang members.

In response to a hypothetical question positing facts similar to the Tyson homicide, Officer Vejar gave the opinion that such a crime would be for the benefit of the street gang because gangs thrive on fear and intimidation. It would communicate to the community that the gang was not to be messed with, and would facilitate future criminal conduct by the gang by deterring witnesses from cooperating with law enforcement.

C. The Defense Case

1. Detective Roger Allen

Detective Roger Allen was one of the detectives assigned to investigate the Mohamedith homicide. The night of the shooting, another officer told Detective Allen that Juan Hernandez, who lived across the street from where the shooting occurred, had seen two Black males rummaging through the van; that he had never seen the van before and did not consider it unusual; and that 15 to 20 minutes later, he heard gunfire coming from the street. Detective Allen later interviewed Juan Hernandez. Hernandez told Detective Allen that he had seen a thin male Hispanic, or a person who appeared to be Hispanic, and another person of muscular build who might have been a male Black. He had been unable to see the faces of either.

2. Lt. Frederick Corral

Lt. Frederick Corral was the lieutenant watch commander of the L.A. County Coroner Investigations Division. He supervised the work of Guy Kellerman, who took a gunshot residue kit from Mohamedith the night of his death. Lt. Corral believed that the victim of a gunshot wound could have residue on his body if the victim was within approximately six feet of where the gun was fired, or if the victim grabbed a recently fired weapon.

3. Steven Dowell

Steven Dowell was a criminalist with the L.A. County Department of the Coroner. One of his fields of expertise was gunshot residue analysis. The gunshot residue analysis of samples taken from Mohamedith found two highly specific gunshot residue particles, and many particles consistent with gunshot residue, on both hands. Dowell opined that Mohamedith had either discharged a firearm or was otherwise in an environment of gunshot residue. Being in the environment could include being in the immediate area of a firearm when discharged, handling a previously discharged firearm, or being touched by someone who had gunshot residue on his or her hands. The residue found on Mohamedith would be consistent with someone holding a handgun with both hands and firing it.

4. Elsa Martinez

Elsa Martinez met defendant while working with Carmen Prieto at Aviation Safe Yards. On May 1, 2003 (the day Khrino was assaulted in San Leandro), Prieto had a birthday party at her house. Martinez arrived between 6:00 and 6:30 p.m. Defendant was at the party.

5. Marc Taylor

Marc Taylor was the owner and laboratory director of a forensic science laboratory in Ventura. Taylor compared cartridge cases recovered from two scenes and analyzed a bullet recovered from a body. Taylor compared the two nine-millimeter shell casings found at the Mohamedith scene. Taylor noted similarities between the casings, but concluded that the similarities were not sufficient to say that the casings were definitely fired from the same weapon. Taylor also compared those shell casings to the nine-millimeter shell casing found at the Tyson scene. Taylor noted inconsistencies between the shell casings. After receiving additional information regarding the LAPD lab comparison, however, Taylor concluded that chambering marks on the shell casings would indicate that the shell casings had been fired from the same weapon.

Taylor analyzed a deformed bullet found at the Mohamedith scene. He concluded that the bullet was consistent with a .32-caliber bullet, but was too small to be a nine-millimeter bullet.

6. Gicela Carmen Prieto (Recalled)

On May 1, 2003, Prieto saw defendant at approximately 9:00 a.m., after which he returned to his house a half block away at 123 West 111th Street She saw him again at approximately 3:00 p.m., then he came to Prietos birthday party at 4:00 p.m.

Prieto first met Mohamedith long after her birthday partyprobably in mid to late August 2003. Defendant was not with Prieto, Jose Rodriguez, Jorge Delgado and Araseli Medina went they went to San Leandro in August. She never told police that defendant was with them.

D. Procedural Background

In an amended information filed February 20, 2007, defendant and Cossio[2]were charged with the murder of Mohamedith (count 1) ( 187, subd. (a)). Defendant was also charged with the murder of Ronald Tyson (count 2); conspiring to torture Ahmed Khrino (count 3) ( 182, subd. (a)(1); 206); the premeditated attempted murder of Khrino (count 4) ( 667; 187, subd. (a)); and the torture of Khrino (count 5) ( 206).

With respect to counts 1 and 2, the People alleged a multiple murder special circumstance ( 190.2, subd. (a)(3)). With respect to count 2, the People alleged the special circumstances that Tyson was a witness to a crime and defendant intentionally killed him because of that fact ( 190.2, subd. (a)(10)), and that defendant killed Tyson while defendant was an active participant in a street gang to further the activities of the gang ( 190.2, subd. (a)(22)).

The People also specially alleged with respect to counts 1 and 2 that defendant personally and intentionally discharged a firearm ( 12022.53, subds. (b)-(d)) and with respect to count 2, that a principal discharged a firearm ( 12022.53, subd. (e)) (collectively, the firearm enhancements). With respect to count 2, the People alleged that defendant murdered Tyson for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to further and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)) (the gang enhancement). The People alleged with respect to count 5 that defendant personally inflicted great bodily injury on Khrino ( 12022.7, subd. (a)) (the GBI enhancement).

The case was tried to a jury. The jury convicted defendant of the first degree murder of Ronald Tyson on count 2; the second degree murder of Atbeisat Mohamedith on count 1; and conspiracy to torture and the torture of Khrino on counts 3 and 5. The jury acquitted defendant of the attempted murder of Khrino on count 4. The jury found not true the firearm-enhancement allegations with respect to count 1, but found true the firearm and gang-enhancement allegations with respect to count 2 and the GBI-enhancement allegation with respect to count 5. The jury also found true all three special-circumstances allegations.

After a penalty phase trial, the jury recommended that defendant be sentenced to prison for life without the possibility of parole. The trial court selected count 2 as the base count, and sentenced defendant to life without the possibility of parole, plus a consecutive sentence of 25 years to life on the firearm enhancement. The trial court stayed defendants sentence on the gang enhancement. The trial court imposed a consecutive sentence of 15 years to life on count 1, and another consecutive life term on count 5. The trial court stayed defendants sentence on count 3 pursuant to section 654. The trial court imposed a court security assessment of $20; a $500 restitution fine; and no parole revocation restitution fine. Defendant received presentence credit of 1336 days for actual custody. Defendant timely appealed.

DISCUSSION

A. Accomplice Testimony

1. Relevant Background

During a discussion of jury instructions prior to the close of evidence, defense counsel stated, We request 3.16 and we feel that Jose Rodriguez is an accomplice as a matter of law. Defense counsel referred to CALJIC No. 3.16, which states, If the crime of __________ was committed by anyone, the witness __________ was an accomplice as a matter of law and [his] [her] testimony is subject to the rule requiring corroboration.

The trial court refused to give that instruction, opting instead to give CALJIC No. 3.19, which states, You must determine whether the witness __________ was an accomplice as I have defined that term. [] The defendant has the burden of proving by a preponderance of the evidence that __________ was an accomplice in the crime[s] charged against the defendant. The trial court explained its reasoning to counsel (although with reference only to the Tyson murder) as follows:

Youll note that I treated both Jose Rodriguez and his brother as persons that the jury could consider as accomplices if the jury so found. [] My thought on that was, that according to Joses testimony, he did not admit knowing that Mr. Tinoco was going to shoot the witnessallegedly shoot the witness before the shooting occurred. He said they were just going to talk to the witness. And if anything, he would be an accessory after the fact if the jury so believed that he didnt know. [] Now, if the jury does not believe him on that point and finds that he was part of a scheme to find and kill Green Eyes, then they certainly can consider him as an accomplice. And I have included aiding and abetting instructions for that purpose. And I would think that the defense would likely argue that he certainly was an aider and abetter [sic] of any killing, if he didnt do the killing himself. That was my thought on the matter.

Defense counsel pointed out, Mr. Jose Rodriguez did plead to the underlying crime of dissuading the witness. The trial court responded, That is different from killing. . . [] . . . You can argue it and say that he was an accomplice. And certainly I dont know the fact that heI mean, his testimony was, I wanted to tell him not to come to court; not kill him. That is why I went with 3.19 and not 3.16. [] But over objection 3.16 will not be given.

The trial court instructed the jury on aiding and abetting; that it could not convict defendant based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense; and that incriminating testimony of an accomplice should be viewed with caution. The trial court defined an accomplice as a person who is or was subject to prosecution for the identical offense charged in Count 2 against the defendant on trial by reason of aiding and abetting. The trial court instructed, You must determine whether the witnesses Jose Rodriguez and Victor Rodriguez were accomplices as I have defined that term. [] The defendant has the burden of proving by a preponderance of the evidence that Jose Rodriguez and Victor Rodriguez were accomplices in the crime charged in Count 2 against the defendant.

2. Discussion

a. Applicable Principles

We review defendants claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) Section 1111 provides, A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [] An accomplice is hereby defined as 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. Section 1111 requires corroboration because accomplice testimony is inherently untrustworthy . . . . (People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice usually testif[ies] in the hope of favor or the expectation of immunity. [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.] (Ibid.)

Although section 1111 defines an accomplice as one liable to prosecution for the identical offense charged against the defendant, the fact that the witness was prosecuted for the same offense does not by itself establish that the witness is an accomplice. (People v. Gordon (1973) 10 Cal.3d 460, 467.) [A]n accomplice is one who aids or promotes the perpetrators crime with knowledge of the perpetrators unlawful purpose and an intent to assist in the commission of the target crime . . . . (People v. Williams (2008) 43 Cal.4th 584, 637.) Neither presence at the scene nor failure to attempt to prevent the crime is sufficient in itself to establish that a person is an accomplice. (People v. Rodriguez (1986) 42 Cal.3d 730, 760.) A mere accessory is not an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.)

Ordinarily, whether a witness is an accomplice is a question of fact. (People v. Avila (2006) 38 Cal.4th 491, 565; People v. Sully (1991) 53 Cal.3d 1195, 1227-1228; People v. Rodriguez, supra, 42 Cal.3d at p. 759.) The defendant bears the burden to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 967-968; People v. Sully, supra, 53 Cal.3d at p. 1228.) If there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury regarding the law of accomplices. (People v. Tobias, supra, 25 Cal.4th at p. 331; People v. Frye, supra, 18 Cal.4th at pp. 965-966; see also People v. Zapien (1993) 4 Cal.4th 929, 981-982.) A trial court may determine that a witness is an accomplice as a matter of law only if the facts establishing the witnesss criminal culpability are clear and undisputed. (People v. Avila, supra, 38 Cal.4th at p. 565.) If the evidence establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. (People v. Zapien, supra, 4 Cal.4th at p. 982.) When, however, the evidence is disputed or supports conflicting inferences, the trial court must instruct the jury to make a factual determination whether the witness was an accomplice. (Ibid.) In either case, the trial court also must instruct the jury, sua sponte, (1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplices testimony unless it is corroborated . . . . [Citation.] (Ibid.)

A trial courts failure to instruct on the requirement of corroboration is harmless if a review of the entire record reveals sufficient evidence to corroborate the accomplices testimony. (People v. Williams, supra, 43 Cal.4th at pp. 637-638; People v. Frye, supra, 18 Cal.4th at p. 966.) Corroborating evidence must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. . . . . [Citation.] (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.) The corroborating evidence may be entirely circumstantial. [Citations.] The corroborating evidence may be slight and entitled to little consideration when standing alone. [Citations.] Only a portion of the accomplices testimony need be corroborated, and the corroborative evidence need not establish every element of the offense charged. [Citation.] All that is required is that the evidence connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth. [Citation.] (People v. DeJesus (1995) 38 Cal.App.4th 1, 25; see also People v. Williams, supra, 43 Cal.4th at p. 638.) Another accomplice cannot provide corroborating evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 958.)

b. Counts 3 and 5Jose Rodriguez, Prieto and Medina

Defendant argues that the trial court erred by failing to instruct the jury that Jose Rodriguez, Carmen Prieto and Araseli Medina were accomplices as a matter of law to the crimes of conspiring to torture and torturing Khrino, charged in counts 3 and 5. Defendant argues in the alternative that the trial court erred by failing to submit to the jury the issue of whether these persons were accomplices. Respondent argues that the witnesses were not accomplices. But even if they were, and if we assume that the trial court erred in failing to so instruct the jury, such errors would be harmless. (See People v. Lewis, supra, 26 Cal.4th at p. 370.)

Defendant argues that he was prejudiced because the jury should have been instructed to view the testimony of these witnesses with caution (CALJIC No. 3.18). The California Supreme Court held in People v. Lewis, supra, 26 Cal.4th at p. 371, however, that other jury instructions may suffice to inform the jury to view accomplice testimony with caution, and thus render error in failing to give CALJIC No. 3.18 harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 837. In this case, the trial court gave two of the three instructions the Supreme Court found pertinent in Lewisthe instruction pursuant to CALJIC No. 2.21.2 that[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others, and the instruction pursuant to CALJIC No. 2.20 on factors to consider in assessing a witnesss credibility. In addition, the jury in this case was instructed (1) pursuant to CALJIC No. 2.11.5 that there was evidence . . . indicating that a person or persons other than the defendant were or may have been involved in the crimes for which the defendant is on trial; (2) pursuant to CALJIC No. 2.13 to consider witnesses prior inconsistent statements for the purpose of testing the credibility of the witness; and (3) pursuant to CALIC No. 2.23 that the fact that a witness had been convicted of a felony may be considered for the purpose of determining the believability of that witness.

Moreover, with respect to Jose Rodriguez, the jury was instructed to determine whether he was an accomplice with respect to count 2, and if he was, to view his testimony with caution, per CALJIC No. 3.18. That instruction was not limited to his testimony regarding Tysons murderrather, it applied to any testimony of Jose Rodriguez that tend[ed] to incriminate the defendant . . . .

The arguments of counsel also informed the jury to view the testimony of these witnesses with caution. (See People v. Lewis, supra, 26 Cal.4th at p. 371 [arguments of counsel relevant to determining prejudice].) The prosecutor did not dispute during argument to the jury that Jose Rodriguez was an accomplice, reminding the jury during argument that Jose Rodriguez had been convicted and sentenced for his part in these crimes. Nor did the prosecutor dispute that Jose Rodriguez, Prieto and Medina were members of the conspiracy to torture Khrino, referring to them as defendants coconspirators and remarking, If you put together a conspiracy to do what these people have done . . . , those are your witnesses. We dont get them from central casting.

Defense counsel made the credibility of these witnesses the central theme of his argument, stating at the outset, [This case] essentially involved credibility of the witnesses. [] Many of the witnesses that did pass through here are either conspirators, coconspirators, accomplices or in some way borderline criminals trying to cover themselves, testifying as to things that occurred, pointing their fingers at anyone that is going to prevent them from having to answer for their own actions. Counsel returned to that theme several times in his argument.

In the circumstances of this case, the instructions given to the jury were sufficient to inform the jury to view [these witnesses] testimony with care and caution, in line with CALJIC No. 3.18. (People v. Lewis, supra, 26 Cal.4th at p. 371.) We therefore conclude that there was no reasonable probability that defendant would have received a more favorable result if the trial court instructed the jury to view the testimony of Jose Rodriguez, Prieto and Media testimony with distrust. (Ibid.)

To the extent defendant argues that the jury should have been instructed on the corroboration requirement of section 1111, the record contains sufficient corroborating evidence tending to connect defendant to the crimes charged in counts 3 and 5 to render the error harmless. (People v. Williams, supra, 43 Cal.4th at p. 637.) Most significantly, Khrino identified defendant as one of the two men who beat him on May 1, 2003. Khrino testified that he asked defendant what was going on, to which defendant replied, You know whats going on. Khrino also identified Prieto as the woman who had come to his door posing as a delivery woman, and identified Prietos car as the car that had followed him from his home to San Francisco. Khrinos wife, Rola Sharab, testified that Mohamedith had threatened her and Khrino. Khrino testified that his wallet was missing after he was attacked on May 1; there was evidence that, shortly thereafter, unauthorized charges appeared on Khrinos credit cards from transactions t