P. v. Sanchez

Filed 1/13/10 P. v. Sanchez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I.                   Introduction

Defendants Robert Anthony Sanchez and Jorge Ayala were charged by indictment with the murder of 15-year-old Christian Jimenez (Pen. Code, 187, subd. (a) (count 1)),^[1] and the aggravated assault and attempted murder of his 14-year-old friend, Luis L. ( 245, subd. (a)(1), 187, subd. (a), 664, subd. (a) (counts 2 & 3)). The indictment alleged that, as to count 1, one of the principals intentionally and purposefully discharged a firearm causing the victims death ( 12022.53, subds. (b)-(e)) and, as to counts 2 and 3, that each defendant was armed with a firearm ( 12022, subd. (a)(1)). The indictment also alleged that defendants had committed the crimes to benefit a criminal street gang. ( 186.22, subd. (b)(1).) The jury found both defendants guilty as charged, found all the enhancement allegations to be true, and found the murder to be of the first degree.

It was stipulated at trial that neither defendant actually fired the gun that killed Jimenez. The shooter was Alex Diaz. The prosecutions theory of murder was that defendants had conspired to commit the murder, aided and abetted the murder, or aided and abetted or conspired to commit a lesser crime that they reasonably should have known could have led to murder as a natural and probable consequence. On appeal, defendants argue that the trial courts instructions on the natural and probable consequences doctrine were faulty. We agree, in part.

The trial court instructed the jury that, if it found defendants had not intended to aid and abet murder but to aid and abet a lesser crime, such as assault, defendants were nevertheless guilty of murder if murder was a foreseeable consequence of the crimes defendants had intended to aid and abet. As far as it goes, that instruction was correct. Defendants argue, however, that the court should have instructed the jury that, to find defendants guilty of first degree murder, it had to find that first degree murder, not just murder, was a natural and probable consequence of the target crime. We agree that as to Ayala the instruction was required and that the failure to give it warrants reversal. In light of the evidence pertaining to Ayalas participation in the crime, the jury might have found that second degree murder was foreseeable but that first degree murder was not. (See People v. Woods (1992) 8 Cal.App.4th 1570 (Woods).)

We also conclude that the trial court incorrectly sentenced defendants under section 186.22, subdivision (b)(1)(B) on count 2, that the sentence for count 3 should be stayed pursuant to section 654, and that the victim restitution order should reflect that it is the joint and several obligation of the two defendants in this case. Defendants remaining arguments have no merit.[2] We shall reverse the judgment and remand to the trial court with directions as set forth below.

II.                Factual and Procedural Background

A.                 The Trial

1. Preliminary Expert Evidence of Gang Culture

The prosecutions overall theory was that Sanchez and Ayala were members of a gang that had planned the crimes in retaliation for a prior attack upon a fellow gang member. San Jose Police Officer Gregory Lombardo testified as an expert on Hispanic gangs and local gang culture. He explained that the Norteo and Sureo gangs are enemies. The rivalry between them stemmed from two rival prison gangs, the Nuestra Familia and the Mexican Mafia. Norteo and Sureo are umbrella terms. Local Hispanic gangs identify with one or the other. Norteo gangs are associated with the color red, the letter N, and the numbers 14 and 4. The Sureos associate with the color blue, the letter M, and the numbers 3 and 13. Gang members frequently have tattoos that signify their gang affiliation. A tattoo of four dots signifies affiliation with a Norteo gang. Three dots signify affiliation with the Sureos. Norteos refer to Sureos by the derogatory terms scrapas or scraps. Sureos refer to Norteos as chapete.

Local gangs do not have a lot of money; all they really have is power from their reputations. Reputations are enhanced by intimidating people, by committing violent acts, and by threatening to commit violent acts. The crazier that act is, the more violent it is, the better the reputation you get. Thus, modern gang confrontations often involve the use of weapons, including guns. It is rare that gangs will settle their differences with fists alone. If a gang member is attacked by another gang, the gang would not go to the police but would retaliate, and up the ante. If I get beat up I have to go back out and I got to stab somebody. If I get stabbed I got to go back out and I got to go shoot somebody. Typically, gang members will discuss a planned crime among themselves. Loyalty is highly valued and disloyalty is punished. The gang functions on trust and is very territorial. If someone from one gang enters into the territory claimed by the other gang, he or she is likely to be attacked. Olinder Park in San Jose is Sureo territory.

Vario Meadow Fair (VMF) and Vario Norte Catorce (VNC) are sister Norteo gangs in the San Jose area. The two gangs are on friendly terms and their members often socialize together. Sanchez and Ayala belonged to VMF. Diaz was a member of VNC. Frankie Duran, Isaac Cortinez, Joseph Rojo, Javier Ayala (defendant Ayalas brother),^[3] and Jesse Salinas all belonged to either VMF or VNC. Jonathan Pipkin had many friends who were Norteo gang members but he did not belong to a gang.

2. The Stabbing of Javier

Sometime prior to the April 2003 murder, Pipkin had been driving a car in which Javier was a passenger. He was stopped at a stoplight when several men dressed in blue San Jose Sharks jerseys got out of a nearby car and approached Pipkins car. One of the men reached in and stabbed Javier. The VMF gang members later speculated that the attackers had mistaken Javier for his brother, defendant Jorge Ayala, who had a reputation for fighting with Sureos.

3. The Post-stabbing Meeting

Mary Mendozas house on Longacre Court had become a gang hangout after Sanchez started staying there early in 2003. Jose Aguilar, who was not a gang member, was Mendozas roommate. Aguilar testified that he was present in an adjacent room at Mendozas house while a number of gang members met to discuss the stabbing of Javier. Diaz, Salinas, Duran, Rojo, Pipkin, and Ayala were present. Aguilar did not recall Sanchez being present for that meeting.

Aguilar overheard more than one person at the meeting say that the gang needed to retaliate because a homey had been stabbed by a scrap. Someone said something to the effect that [w]ere gonna blast em or kill them or fuck these scraps. The gist of the conversation was that the gang needed to do a jale or put in work on their enemies, which meant you know, beat somebody up. Go kill somebody, stab somebody. Can you go do some sort of crime. More than one voice said that the scraps should be killed. The voices referred to Javier as a friend or homeboy, not a brother. Aguilar was certain it was Duran he heard talk about the need to blast a scrap although it was later determined that Duran had been in custody around this time. Duran and Diaz commonly bragged about killing people. In addition to the voices calling for retaliation, Aguilar heard at least one voice stating that retaliation was stupid. But another responded with something like, no, fuck that, we gotta go put in work with these scraps, or we gotta do this.

Pipkin was present at a meeting among the gang members at Mendozas house a day or two after Javier was stabbed. He believed Sanchez had been there along with Ayala, Diaz, Salinas, Rojo, and Cortinez. Pipkin recalled Diaz advocating retaliation but did not hear him say anything about shooting anyone. Pipkin testified that he thought the idea of retaliation was stupid. Others present at the meeting disagreed with the retaliation idea, too. Pipkin was not sure who the dissenters were.

4. The Shooting

On April 24, 2003, within a week after the meeting at Mendozas house, Diaz asked Aguilar to give him a ride. Aguilar initially refused but Diaz persisted and Aguilar finally agreed. Diaz and Sanchez got into Aguilars car and, just as Aguilar started the engine, Salinas and Rojo jumped in. Aguilar drove the foursome, at Diazs direction, to a place near Olinder Park. There was little discussion along the way. Aguilar did not hear any reference to a jale and did not see a gun.

Aguilar dropped his passengers off near Olinder Park. When Aguilar asked if they needed a ride home the men told him not to worry about it. About a minute or two after Aguilar turned toward home, he saw Pipkin driving toward him. Ayala was in the car with Pipkin. Aguilar wondered why the others had asked him for a ride when their friends, Ayala and Pipkin, were going the same way.

Also on April 24, 2003, Luis and Jimenez walked to Olinder Park to meet their friend Diana L. Luis testified that on the way to the park they came across three men who stared them down as if they wanted to fight. The boys continued on into the park, saying nothing, but the three men continued staring at them. When the boys did not find Diana in the park, Luis called her. Diana received the call around 6:40 p.m. She had noted the time because she was supposed to be home that night at 7:00 p.m.

Diana soon arrived and gathered with the two boys at the picnic tables. The men were still staring so the three friends decided to move to the other side of the park to get away from them. Jimenez wanted to go to another playground where there were more people but when they got near they found the gate to that playground was locked. Then, two of the men who had been staring approached, called the boys chapetes, and asked if they did drugs or claimed. The boys replied that they did not claim and were not chapetes. Luis explained that, although he had grown up surrounded by Sureos, on the date of the shooting he was not a gang member. He acknowledged that he and Jimenez both had tattoos of three dots, which was a Sureo-type tattoo. Luis knew nothing about a stabbing a week or so prior to his encounter with the men at Olinder Park.

The two men acted friendly and seemed to want the boys to admit that they were Sureos. They invited the boys to go find some chapetes to beat up, suggesting that the men were Sureos themselves. Luis found this odd since one of the men was wearing red shoes, which a real Sureo would never do. Diana recalled that one man said that he claimed blue and that both made statements suggesting that they were members of a Sureo gang.

While the conversation about chapetes was taking place, Diana saw a third man hiding in the bushes a short distance away. The two men who had been talking to the boys eventually went to join the third man in the bushes and the three talked among themselves. Soon, the first two men returned and one said, Lets do it. They then attacked Jimenez and Luis with hands and feet. Luis identified Sanchez as the one who beat him. Luis fell to the ground; his hood was pulled up over his head so he could not see what was happening to Jimenez but he did hear Jimenez say, Leave him alone and We dont bang.

While the attack upon Jimenez and Luis was taking place, Diana saw the third man pop out of the bushes with a gun in his hand. Diana ran, yelling for someone to call the police. She was running away calling for help when she heard a gunshot. Immediately after the gun went off, the assailant who was beating Luis stopped his attack. Luis looked up and saw one of the men, the one with a teardrop tattoo or birthmark near his eye and a tattoo of cursive handwriting on the back of his neck, bending over a gun as if to reload it. (Sanchez has the name Josephine tattooed in cursive letters across the back of his neck.) Luis ran. When he turned to look back he saw the three men jumping over a fence. Jimenez was on the ground.

Meanwhile, that same evening, Pipkin and Ayala had been driving in Pipkins car when Ayala got a call on his cell phone, following which Ayala asked Pipkin if he could pick up some of the homies at Olinder Park. Pipkin got off the freeway and headed to the park. On the way, Ayala received two or three more phone calls. Indeed, he was on the phone almost constantly. At one point he heard Ayala ask, where you at? Pipkin was concerned about going to Olinder Park because he knew it was Sureo territory. Pipkin drove around the perimeter of the park for about 10 minutes looking for Ayalas friends. He could have been in the area for as long as 40 minutes.

Just as Pipkin was getting frustrated and ready to leave the area, Diaz, Salinas, and Sanchez appeared and jumped in the backseat of the car. They slouched over as if they were hiding and instructed Pipkin to drive them to Amelia Ruizs house, which was a gang hangout. Pipkin complied and then he and Ayala went on their way. Pipkin later returned and dropped Ayala off at Ruizs house where Diaz, Sanchez, and Salinas were still convened.

Pipkin later learned that someone had been killed at Olinder Park the day he had picked up Diaz, Sanchez, and Salinas there. Pipkin had not asked any questions of his friends because he did not want to know what the gang was up to. At trial, having testified against the gang, he was afraid for his life.

A man walking in Olinder Park on the night of the shooting reported having passed by three men, one of whom was yelling into a cell phone. The man walked past the threesome and shortly thereafter heard what sounded like a firecracker. He then saw a girl running in his direction and four men running away from the area of the shooting.

5. Events Post-shooting

Later in the evening of April 24, 2003, Diaz, Salinas, Rojo, and Sanchez went to Mendozas house and spent the night there. The next morning, Diaz and Sanchez went out for a newspaper. The newspaper contained an article about the shooting and a police sketch of the suspects. Sanchez said to Mendoza, look at these three fools and what they had done. He asked, If it was us, you wouldnt tell on us, would you? Mendoza thought he was joking. Sanchez continued to follow the story in the newspaper over the next several days.

On April 27, 2003, Ayala spoke by telephone with Duran, who was then in custody in county jail. Duran asked Ayala about the injuries Javier sustained in the stabbing and Ayala told him that Javier had not even gone to the hospital. Duran then asked, [W]as that shit the homies? To which Ayala replied, Hell yeah boy. Duran told Ayala, Tell that fool, I said get another, get a bigger tattoo fool . . . Tell that fool Tiny [Diaz] I said get a tattoo.

An autopsy showed that Jimenez had been killed instantly by a single shotgun blast to the chest fired from approximately three feet away. An unusual plastic wadding was recovered from Jimenezs chest, along with a large number of shotgun pellets. It was later determined that the plastic wadding was unique to certain shot shells manufactured by Fiocchi, of Italy. No spent shotgun cartridges were found at the scene.

Police officers searched Mendozas house on May 9, 2003. Diaz was present and was arrested. Police recovered two shotguns, one of which had a pistol grip and had been sawed off, marijuana, methamphetamine, baggies, scales, and Fiocchi shotgun shells that contained the same kind of plastic wadding found in Jimenezs body. Sanchez was arrested May 14, 2003. Jail officers later intercepted a letter from Sanchez to Diaz, complaining that Pipkin had been speaking with the police. Sanchez told Diaz not to worry because the gang would hire a lawyer for Diaz. He closed the letter with, One love one heartbeat.

6. Cell Phone Evidence

Records for the cell phones belonging to Diaz and Ayala showed many calls between them beginning around 6:02 p.m. and continuing until about 7:15 p.m. on the evening of the shooting. Ayalas phone records showed that at 6:17 p.m. on April 24, 2003, he made a call that was routed through the Olinder Court cellular tower near Olinder Park. The tower has a range of about one and one-half miles. Diazs cell phone records revealed that, until about 6:39 p.m. that evening, his phone was located near Longacre Court but between 6:40 and 7:06 p.m., his phone was involved in three calls routed through the Olinder Court tower. Diazs cell phone directory contained the names of several gang members, some listed by nickname. The entry for Hitman corresponded to Sanchezs home telephone number.

7. Further Expert Testimony

In addition to his testimony pertaining to gang culture and local gangs in general, Officer Lombardo testified about defendants gang affiliations and the gang-related aspects of the crimes in this case. He explained that both defendants were known gang members. They showed their gang affiliation with their tattoos, among other things. Sanchez had several gang-related tattoos, including the words Norte, vario M F, San Ho, and Fuck the World in various places on his upper body. He also had a tattoo of the number 863, which corresponds to the letters VMF on a cell phone, four dots on the knuckles of his left hand, and the letter X and the number 4 on his face next to his left eyebrow. While the trial was in progress, Sanchez was found in possession of a handwritten document that explained the history of the Nuestra Familia prison gang and described the Sureos as enemies of the Norteos. According to Lombardo, Sanchezs possession of the document showed his continued interest in the Norteo lifestyle. Ayala also had a number of gang-related tattoos, including four dots on his hand, XIVMF in large block letters across his chest, and a shark with the words San Ho tattooed on his torso.

The prosecutor posed a lengthy hypothetical describing the crimes according to the prosecutions theory of the case and asked the expert if, under the circumstances described, he believed the crimes had been committed for the benefit of or at the direction of the gang. Lombardo responded that he believed the murder was done at the direction of the gang because the meeting at Mendozas house followed the incident where Javier was stabbed and the gang actually talk[ed] about what they are going to do and possibly plan[ned] it out at that time. That shows me that there is some direction there. Based on the evidence in this hypothetical situation, this entire operation--and I call it that because it was executed like a proper operation. There was a drop-off person, people committing the crime. There was somebody else picking them up. Telephone communication. It sounds to me like it was done actually very well, if you look at it from that standpoint. Everything went flawless. That shows me that there is some direction there, that this wasnt a spontaneous act. Its just too smooth, too well orchestrated, to be something spontaneous like that. Lombardo later elaborated, stating that the circumstances described showed that the attack at Olinder Park was preplanned, that it had some thought put into it, that the participants most likely had distinct roles to make it work properly, and that the plan had gone pretty flawless. Therefore, it was Lombardos opinion that the crimes had been committed at the direction of the gangs.

8. The Defense

The defense theory was that Diaz was violent and unpredictable and that defendants did not know he was planning to kill and did not know he had taken a gun to Olinder Park. Pipkin had testified that Diaz was impulsive and unpredictable; he also had a reputation as a violent person, although Pipkin had never known him to use a gun. While in prison, Diaz had twice stabbed fellow inmates and once blew a contraband dart at another.

Ayala pressed the theory that he was not a particularly committed gang member. His neighbor, Simon Ortiz, stated that he knew Ayala to be a hard worker. He knew that Ayala was affiliated with VMF but he did not believe Ayala was obsessed with the gang. Ayalas mother, Benita Ayala, said that her son lived at home and worked for UPS and sometimes for his fathers landscaping business. She recalled her other son, Javier, having suffered a minor injury to his right upper chest sometime in April 2003. The injury did not bleed or swell and was not serious.

B.                 Post-evidentiary Proceedings

At the close of the first day of deliberations, the bailiff told the court that the jurors had asked for an escort to their cars. According to the bailiff, two jurors were fearful because Ortiz, one of the defense witnesses, had been parking next to them in the parking structure and watching them as they got in and out of their cars. Jurors had also seen Ayalas mother in the jury assembly area during break times and believed that she too had been watching them. The court arranged for the jury to be escorted to their cars that evening and for them to be picked up the following morning at an undisclosed location. The following day, the court declined a defense request to hold an evidentiary hearing and denied counsels motion for a mistrial.

During deliberations, the jury submitted several questions, including the question whether a defendant could be liable for the section 12022.53 firearm enhancement if he did not know the perpetrator had been carrying a firearm. The trial court responded to that question in the affirmative.

On December 7, 2006, the jury returned verdicts of guilty. Defendants moved for a new trial based upon the jurors concern over the defense witnesses conduct and upon the introduction of what defendants characterized as inflammatory gang evidence. The trial court denied the motion.

The court sentenced both defendants as follows:

Count 1 (first degree murder) 25 years to life

Firearm enhancement ( 12022.53, subd. (d)) 25 years to life

Count 3 (attempted murder) 7 years (principal midterm)

Gang enhancement ( 186.22, subd. (b)(1)(C)) 10 years

Arming enhancement ( 12022, subd. (a)(1)) 1 year

Count 2 (aggravated assault) 1 year (1/3 midterm)

Gang enhancement ( 186.22, subd. (b)(1)(B)) 1 year 8 mos. (1/3 of five years)

The court ordered all terms to run consecutively for a total of 50 years to life plus 20 years eight months. The court ordered defendants to pay restitution to Jimenezs mother and to the victim restitution fund, imposed restitution fines of $10,000 pursuant to section 1202.4, and imposed and stayed parole revocation fines of $10,000 pursuant to section 1202.45. The court added $1,000 to each of the restitution fines as an administrative fee.

III.             Contentions[4]

Defendants contentions pertaining to the guilt phase challenge the natural and probable consequences instructions, Lombardos testimony regarding defendants subjective intent, the admissibility of particular evidence pertaining to Sanchez, the sufficiency of the evidence to support their convictions, and the jurys exposure to Ortiz and Benita Ayala outside the courtroom. As to the sentencing phase, defendants argue that section 654 precludes consecutive sentences for counts 2 and 3, that aggravated assault is not a serious felony for purposes of the section 186.22, subdivision (b)(1)(B) enhancement, and that an enhancement of 25 years to life under section 12022.53, subdivision (d) is unconstitutionally cruel and unusual punishment. They also argue that the victim restitution order should reflect that it is the joint and several obligation of all codefendants in this case and that there is no statutory authority for the $1,000 administrative fee added to the $10,000 restitution fine.

IV.              Discussion

A.                 Instructions on Natural and Probable Consequences

1. Murder as a Consequence of Simple Assault or Breach of the Peace

Although both defendants were charged with murder, it was stipulated that neither one had fired the shot that killed Jimenez. Thus, in order to obtain convictions for murder, the prosecution had to rely upon theories of vicarious liability, one of which was the natural and probable consequences doctrine. Defendants challenge the instructions pertaining to that doctrine.

Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a natural and probable consequence of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the natural and probable consequences doctrine, the jury must find that, with knowledge of the perpetrators unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendants confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a natural and probable consequence of the target crime that the defendant assisted or encouraged. (People v. Prettyman (1996) 14 Cal.4th 248, 254.)

Whether one criminal act is a natural and probable consequence of another criminal act is generally a question for the trier of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The determination requires the application of an objective rather than subjective test. (Ibid.) That is, the issue does not turn on the defendants subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act the defendant specifically intended. (Ibid.)

In the present case, the trial court instructed the jury in a modified version of CALCRIM No. 403, explaining that defendants could be guilty of murder or attempted murder, even if their intent was to aid and abet only disturbing the peace, fighting or challenging someone to fight, simple assault, or aggravated assault, if the more serious crimes were the natural and probable consequence of the less serious crimes.^[5] Defendants argue that if they intended no more than a simple assault or breach of the peace, they could not have possessed malice aforethought and, therefore, could not be guilty of murder or attempted murder.^[6]

Defendants argument misses the salient point of the natural and probable consequences doctrine. [A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury. (People v. Prettyman, supra,14 Cal.4th at p. 261, quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) It follows that the jury was not required to find defendants shared Diazs intent to kill in order to find them guilty of murder and attempted murder under the natural and probable consequences doctrine.

Defendants also argue that the crimes of simple assault and breach of the peace are such trivial offenses that murder or attempted murder could not be natural and probable consequences of them. People v. Medina(2009) 46 Cal.4th 913 (Medina), undermines the argument. In Medina, two gang members had participated in a simple assault upon a member of a rival gang. After the fistfight stopped and the victim escaped to his car one of the gang members got a gun and fired it at the retreating victim, killing him. The issue on appeal was whether there was sufficient evidence to support the defendants murder conviction under the natural and probable consequences doctrine based on the target offenses of assault and battery. The Supreme Court held that there was.

Medina explained, when assessing liability under the natural and probable consequences doctrine, [t]he issue is whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the [shooting] was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Medina, supra,46 Cal.4th at p. 927, quoting People v. Nguyen, supra,21 Cal.App.4th 518, 531, italics added by Medina.) Evidence that the nontarget crime was closely connected to the crimes the defendants had intended, expert testimony pertaining to gang culture that emphasizes respect, fear, and retaliatory violence in the face of disrespectful behavior, (Medina, supra, at p. 927) and evidence that the crimes were committed as part of that culture, was sufficient to support the finding that defendants would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable. (Id. at pp. 927-928.) Thus, although murder (or attempted murder) may not always be a natural and probable consequence of a simple assault (People v. Godinez (1992) 2 Cal.App.4th 492, 502), under certain factual situations, particularly in the gang context, a jury is entitled to find that it was (Medina, supra, at pp. 927-928; see also, People v. Montes (1999) 74 Cal.App.4th 1050, 1056). Accordingly, we reject defendants argument that, as a matter of law, they could not be guilty of murder or attempted murder if all they intended was simple assault or breach of the peace.

2. First Degree Murder as a Natural and Probable Consequence

In addition to the instructions on the natural and probable consequences doctrine as set forth above, the trial court instructed the jury: The defendant is guilty of first-degree murder if the people have proved that the killer acted willfully, deliberately, and with premeditation, and that the defendant is also guilty of the murder and, A defendant is guilty of murder in the first-degree if the people have proved that the killer committed [the crime], while lying in wait or immediately thereafter, and the defendant is also guilty of murder. In instructing on the concept of aiding and abetting the court told the jury, A person is equally guilty of the crimes whether he or she committed it personally or aided and abetted the perpetrator who committed it. In short, the instructions stated that, in order to determine the degree of the murder for which defendants were liable, the jury was to look to Diazs conduct. Defendants maintain that this is an erroneous statement of the law. They argue that they could not be guilty of first degree murder under a natural and probable consequences theory unless the jury found that first degree murder was a natural and probable consequence of the target crimes. The argument is based upon the holding of Woods, supra,8 Cal.App.4th 1570.

In Woods,two defendants went to an apartment building, assaulted two people living in one of the apartments, and stole some property on their way out. While the defendants were stowing the loot in the trunk of their car outside, one of them pulled a gun and shot and killed the occupant of a car nearby. Both defendants were convicted of first degree murder. (Woods, supra,8 Cal.App.4th at p. 1577.) During deliberations, the jury asked the trial court if it could convict the accomplice of second degree murder even if the shooter was guilty of first degree murder. The trial court responded, no. (Id. at p. 1579.) The appellate court held that was error and that an aider and abettor may be found guilty of a lesser crime than that ultimately committed by the perpetrator where the evidence suggests the ultimate crime was not a reasonably foreseeable consequence of the criminal act originally aided and abetted, but a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was such a consequence. (Id. at p. 1577.)

As Woods explained, because the analysis of liability under a natural and probable consequences theory requires separate factual determinations for (1) what crimes have been committed, and (2) what crimes are the reasonably foreseeable consequences of the offense originally contemplated, it is self-evident that the aider and abettor does not stand in the same position as the perpetrator. While the perpetrator is liable for all of his or her criminal acts, the aider and abettor is liable vicariously only for those crimes committed by the perpetrator which were reasonably foreseeable under the circumstances. Accordingly, an aider and abettor may be found guilty of crimes committed by the perpetrator which are less serious than the gravest offense the perpetrator commits, i.e., the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrators criminal acts were reasonably foreseeable under the circumstances and which were not. (Woods, supra,8 Cal.App.4th at pp. 1586-1587.)

Applying this reasoning, Woods concluded that, under the facts of its case, the trial court had erred in telling the jury that it could not find the aider and abettor guilty of second degree murder. The jury could have determined it was not reasonably foreseeable that the codefendant would commit premeditated murder of an innocent bystander but that it was foreseeable that he might kill intentionally but without premeditation. (Woods, supra,8 Cal.App.4that p. 1590.)

The Woods rationale was extended in People v. Hart (2009) 176 Cal.App.4th 662 (Hart), where the defendant was an accomplice to attempted murder committed in the course of an attempted armed robbery. The defendant was convicted of first-degree premeditated attempted murder under instructions similar to those given in this case. On appeal, the defendant argued, as defendants do here, that the instructions erroneously precluded the jury from finding him guilty of any lesser degree of murder. The appellate court agreed that the instructions were insufficient. The court determined that the evidence was such that the jury could have found that attempted unpremeditated murder was a natural and probable consequence of the armed robbery but that attempted premeditated murder was not. (Id. at p. 672.) But the instructions had not informed the jury that in order to find the accomplice guilty of attempted premeditated murder it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery. (Id. at p. 673, italics added.) Hart concluded, given the evidence, that the trial court had a sua sponte duty to instruct the jury to determine whether premeditation and deliberation, as it relates to attempted murder, was a natural and probable consequence of the target crime. (Ibid.)

Under Woods and Hart,therefore, a trial court has the sua sponte duty, when a defendants liability for first degree murder is as an accomplice under a natural and probable consequences theory, to instruct the jury that it must determine whether premeditation and deliberation, as it relates to the murder, was a natural and probable consequence of the target crime. The duty arises, however, only when the evidence would support a finding that a lesser degree of murder was foreseeable and that the greater degree of the crime was not foreseeable. (Hart, supra,176 Cal.App.4th at p. 673.) We agree with the reasoning in these cases.

People v. Cummins (2005) 127 Cal.App.4th 667 (Cummins), cited by the Attorney General, does not convince us otherwise. Although Cummins rejected the need for a Hart-type instruction, the facts of Cummins would not have supported it in any event. The accomplice in Cummins was a willing and active participant in all the steps that led to the attempt on [the victims] life. (Id. at p. 680.) The defendants had kidnapped the victim, taken him to the edge of a cliff, and then one of the defendants pushed him off. Cummins concluded that, [a]lthough the evidence did not conclusively determine which defendant had physical contact with the victim when he was pushed, the accomplices conduct made him no less blameworthy than the actual perpetrator. (Id. at pp. 680-681.)

In the present case, the need for the instruction as it pertained to Sanchez is questionable. Sanchez directly participated in the planned attack upon the victims--singling them out, following them through the park, falsely posing as a Sureo, consulting with Diaz in the bushes, assaulting one while Diaz shot the other, then either attempting to shoot Luis or assisting Diaz in the attempt. Under those circumstances, no reasonable jury could find that unpremeditated second degree murder was reasonably foreseeable but that first degree murder (premeditated or by lying in wait) was not. As to Ayala, however, the instruction was required. He was not present at the scene of the crimes and had not accompanied the group on their trip to the park. Thus, he would not necessarily have known the precise details of what the others planned. If the jury believed that Ayala had intended to aid and abet only an assault or breach of the peace, the jury could have found that a reasonable gang member in Ayalas position would have or should have foreseen murder but that first degree murder was not foreseeable.

Since the error was comparable to a courts failure to instruct sua sponte on a lesser included offense in a noncapital case, it was an error of state law alone and is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th 142, 165.) Our examination of the whole record shows the error was prejudicial as to Ayala. In particular, the jurys question during deliberations about whether it was necessary for a defendant to know that the perpetrator had possessed a firearm in order to find the section 12022.53 firearm enhancement to be true, suggests that at least one juror believed that one of the defendants did not know Diaz had a gun. The question also suggests that the jury found at least one defendant guilty of murder on a natural and probable consequence theory. Given the evidence pertaining to Ayala, the question reasonably could have reflected the jurys doubt as to whether a gang member in his position should have foreseen a premeditated murder. Accordingly we shall reverse the judgment as to Ayalas conviction of first degree murder. If the People do not choose to retry the issue, the trial court shall reduce the conviction to second degree murder and resentence Ayala accordingly.

On the other hand, the absence of the instruction did not prejudice Sanchez. The evidence recited above shows that Sanchez directly aided and abetted or conspired to commit the murder and attempted murder. The jury did not need the natural and probable consequences theory to find him liable for first degree murder. But even if the jury did not believe Sanchez shared Diazs murderous intent, no reasonable jury could have found that a reasonable person in Sanchezs place would have or should have foreseen an unpremeditated murder but not murder of the first degree. Although Sanchez also points to the jurys question pertaining to the arming enhancement, it is not reasonably probable that the jury believed Sanchez was unaware that Diaz was armed. Although the shotgun was sawed off, it was not a tiny handgun. Sanchez and Diaz were together when the two of them got into Aguilars car to go to the park. And as soon Diaz fired the gun at Jimenez, Sanchez ceased his attack upon Luis and took possession of the gun himself, bending over it as if to reload. Under those circumstances, it is not reasonably probable that the jury could have found, as to Sanchez, that he did not know about the gun so that first degree murder was not reasonably foreseeable.

B.                 Expert Opinion

Defendants argue that they received ineffective assistance of counsel when their attorneys did not object to certain testimony from the prosecutions gang expert. To demonstrate constitutionally ineffective assistance of counsel, defendants must prove that counsels failure to object was unreasonable when measured by prevailing professional norms and that it is reasonably probable the result would have been more favorable to defendants had counsel performed more effectively. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Defendants maintain that Lombardos opinion that the crime was planned implied that defendants had the intent needed to find them guilty of murder. According to defendants, this was impermissible expert testimony and their attorneys provided ineffective assistance by failing to object to it. We disagree.

A gang expert may testify on matters that are sufficiently beyond common experience, such as gang territories, culture, practices, and habits, if such testimony would assist the trier of fact. (See Evid. Code, 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617.) Such testimony is admissible even if it encompasses ultimate issues in a case. (People v. McDonald (1984) 37 Cal.3d 351, 371, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) The challenged testimony in this case came in the course of the prosecutors exploration of the gang allegation. The prosecutor proposed a lengthy hypothetical based upon the prosecutions version of the events of April 24, 2003. The prosecutor then proceeded to establish the experts opinion as to whether, as alleged in the indictment, the murder committed on April 24, 2003, under these circumstances would benefit the criminal street gangs VMF and VNC. Based upon the circumstances described by the prosecutor and his own understanding of gang culture and the level of trust that existed among gang members, Lombardo opined that the crimes had been planned in advance and were committed at the direction of the gang. The opinion was one reasonably beyond common experience because a lay person might not appreciate the extent of the loyalty and trust that typically exist between and among members of a criminal street gang. That one might infer from such testimony that a particular gang member had a particular intent and state of mind does not, in our view, render the more general opinion inadmissible.

People v. Killebrew (2002) 103 Cal.App.4th 644, upon which defendants rely, does not convince us otherwise. In Killebrew, a gang expert testified hypothetically that gang members would travel in large groups with at least one firearm among them in order to protect themselves from retaliation by a rival gang. The expert further opined that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Id. at p. 652.) The appellate court noted that typically, a gang expert will testify about the expectations of gang members in general when confronted with a specific action but that here the experts testimony spoke directly to the subjective knowledge and intent of each of the people involved. (Id. at p. 658.) The former is generally admissible. However, where the charge is conspiracy to possess a gun, as it was in Killebrew, the experts testimony was the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. (Ibid.) The present case is different. Here the expert opined, based upon his knowledge and experience and the hypothetical scenario posed, that the crimes had been planned by the gangs. He did not testify, as did the expert in Killebrew, about defendants individual knowledge and intent.

Given the foregoing, defense counsel reasonably could have declined to object to the testimony because the objection would have been overruled. (See People v. Osband (1996) 13 Cal.4th 622, 678.) But even if we assume, for arguments sake, that an objection would have been sustained, the record does not compel reversal. In jury trials, the admission of unnecessary expert opinion on matters within the jurys experience creates a risk that jurors might attribute unwarranted significance and weight to the opinion simply because of the witness status as an expert. (See People v. Housley (1992) 6 Cal.App.4th 947, 957.) There was little risk of that here. Given counsels multiple other objections to Lombardos testimony, the transcript is peppered with the trial courts admonitions pertaining to the proper consideration of expert opinion. For example, early on during the direct examination of Lombardo, the trial court overruled an objection, stating, The jurors may place whatever value on the experts opinion they choose. Later, after overruling another defense objection, the court gave the jury a four paragraph admonition, concluding, Experts opinions may be worth nothing, they may be worth everything, or something in between. Ultimately the value that you place on an experts opinion is entirely for you to decide. The trial court overruled another objection and admonished the jury: Ladies and gentlemen, the questions the expert is being asked dont necessarily mean that the facts assumed or referred to have to be something that is found by you, but only that they are within the realm of evidence that you may conclude. Another objection drew the admonition: If you find that the predicate or the preface to the question differs from what you find to be the proven facts, you should then decide what effect, if any, that has on the weight you give to the opinion.

In light of these multiple, careful, and accurate instructions to the jury, even if Lombardos unchallenged testimony was improper, it does not undermine our confidence in the verdict. That is, we detect no reasonable probability that the verdict would have been more favorable to defendants had the testimony been stricken. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)

C.                 Evidence Against Sanchez

Sanchez argues that the trial court abused its discretion and violated his right to due process and a fair trial when it allowed the prosecutor to introduce evidence of Diazs cell phone entry for Sanchez labeled as Hitman, Sanchezs Fuck the World tattoo, and the Nuestra Familia document Sanchez possessed during trial. We detect no error.

Evidence Code section 352 gives the trial court the discretion to exclude evidence that is otherwise admissible if the court determines that the probative value of the evidence is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The trial courts ruling on an Evidence Code section 352 objection must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

All the evidence Sanchez challenges was relevant in that it established his gang involvement. The cell phone entry showed that Sanchez had a nickname and it was established at trial that gang members used nicknames. The tattoo reflected an antisocial attitude that was common among gang members. The Nuestra Familia document confirmed that, for Norteos, Sureos were the enemy. It supported the inference that Sanchez had a continued interest in the Norteo lifestyle, which reinforced evidence that Sanchez was a committed gang member and committed the crimes as part of a plan to retaliate against the sworn enemies of his gang.

The prejudice of the Hitman evidence, according to Sanchez, is that Hitman, by definition, means killer so that admission of the evidence was tantamount to informing the jury that Diaz thought of Sanchez as a killer. This is, at best, an exaggeration. As the trial court observed, Who knows why people adopt nicknames. Hit, is used colloquially both as a noun and as a verb in a variety of contexts. For example, Hitman could easily have referred (in Diazs mind) to a history of asking for things, as in hitting on someone for a favor. The word is not as inherently prejudicial as defendant maintains.

As to the tattoo, the trial court carefully admonished the jury that this tattoo, and the many other tattoos that both defendants had, were not admitted to show whether or not the person who wears such a tattoo is a good or bad person but only to provide some factual background from which you might get some expert testimony about what the tattoos might signify. . . . In other words, its not character evidence. The evidence was not the kind of evidence that would have inflamed the jury and the trial courts admonition would have cured any improper inferences the jury might have drawn.

As to the Nuestra Familia document, Sanchez argues that, because the Nuestra Familia is a prison gang with a history of murderous violence, allowing the document into evidence was, in effect, allowing evidence of defendants bad character. Sanchez relies for that contention upon People v. Albarran (2007) 149 Cal.App.4th 214, but that case is distinguishable. In Albarran, the defendant had been convicted of attempted murder, shooting at an inhabited dwelling, and attempted kidnapping for carjacking, all committed for the benefit of a criminal street gang. ( 186.22.) The trial court granted the defendants motion for new trial as to the gang enhancement because, even though there was evidence the defendant belonged to a gang, there was insufficient evidence to support the finding that the crimes had anything to do with his gang. The appellate court held that the court should have granted a new trial as to the substantive crimes, as well. (People v. Albarran, supra, at pp. 231-232.) Even if the gang evidence was relevant to the issues of motive and intent, other extremely inflammatory gang evidence had been admitted, which had no connection to the crimes. (Id. at p. 227.) The appellate court concluded, This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendants trial fundamentally unfair. Given the nature and amount of this gang evidence at issue, the number of witnesses who testified to Albarrans gang affiliations and the role the gang evidence played in the prosecutors argument, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Consequently, the court erred in failing to grant Albarran a new trial on all of the charges. (Id. at p. 232.)

The present case is not one of the rare and unusual occasions to which Albarran referred. Here, there was ample evidence that the crimes were committed to benefit the gangs so that Sanchezs affiliation with and allegiance to his gang was highly relevant to the issues of his motive and intent and to the enhancement allegations. Indeed, it is the more vicious aspects of gang culture that helped explain the seemingly random violence of the crimes in this case. Since the challenged evidence was relevant, formed but a small part of the prosecutions case, and was not particularly inflammatory, the trial court did not abuse its discretion in permitting its introduction.[7]

D.                            Sufficiency of the Evidence

Ayala argues that the evidence is insufficient to support his convictions for murder, attempted murder, and aggravated assault. He maintains that there is no substantial evidence to show that he either agreed or intended to aid and abet a gang-related brawl, the reasonable consequences of which was homicide or attempted homicide. We disagree.

To assess the evidences sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) If the circumstances reasonably justify the jurys factual findings, we must affirm the judgment. (Medina, supra, 46 Cal.4th 913, 924, fn. 2.)

In this case there was evidence that Ayala was present at the meeting at Mendozas house during which the gangs agreed upon a plan to attack unspecified Sureos in retaliation for the stabbing attack upon Javier. Ayala points out that at least one attendee at the meeting voiced disagreement with the plan, and if we eliminate all those who probably did not dissent, we must conclude that Ayala was the dissenter. But the argument ignores our standard of review. Substantial evidence supports the contrary conclusion. Ayala had a reputation for fighting with Sureos, it was his own brother who had been stabbed, and there had been speculation that defendant Ayala, not Javier, had been the true target of the stabbing. Just days after the crimes were committed, Ayala responded with an unequivocal, hell ya, boy, when Duran asked him if the homies had committed the murder at Olinder Park. All of this tends to suggest that Ayala did not dissent from the planned retaliation. Furthermore, the dissenter had voiced the opinion that retaliation was stupid, the very word Pipkin used at trial to describe his opinion of the scheme. Thus, the jury reasonably could have concluded someone other than Ayala, possibly Pipkin, was the dissenter.

Even if Ayala had initially resisted the idea, his dissent was met with, [N]o, fuck that, we gotta go put in work with scraps. There was also evidence that Ayala was a committed member of the Norteo-affiliated gang, that gangs generally had a habit of retaliating for attacks upon fellow gang members, and that Olinder Park was Sureo territory. Furthermore, the cell phone evidence showed that Ayala was present near Olinder Park before Diaz and Sanchez got there and that he tracked the progress of the crimes--or the location of the perpetrators--during and after the commission of the crimes. In light of all this, any reasonable jury could have concluded that Ayala knew Diaz and Sanchez were going to Olinder Park to carry out an attack upon Sureos and that he made sure a vehicle was available to whisk the perpetrators out of the vicinity as soon as the attack was complete. Thus, the evidence supports a finding that Ayala agreed in advance to the plan and aided and abetted the crimes.

The evidence further supports a finding that Ayala knew or should have known, regardless of the crimes he personally intended, that murder was foreseeable. The discussion at the meeting at Mendozas house included mention of killing Sureos. Lombardo had explained that retaliatory attacks in the gang context are typically more violent than the precipitating attack and that weapons are commonly