THE PEOPLE v. JOHNNY SANTOS GARCIA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY SANTOS GARCIA et al., Defendants and Appellants.

B217972

Decided: January 20, 2011

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Santos Garcia. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Marquez. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Daniel Marquez and Johnny Santos Garcia appeal from the judgments entered after a jury convicted them of murder, attempted murder, kidnapping, robbery, and other related counts.   We modify the judgment to strike a firearm use enhancement imposed on Marquez as to one robbery count.   We also modify the judgment to stay the sentence imposed on Garcia for shooting at an occupied vehicle.   We reject appellants' numerous other contentions, including claims of evidentiary error, violations of the prohibition against multiple punishment (Pen.Code, § 654), racial prejudice during jury selection, and insufficiency of the evidence to support some of the convictions.   We therefore affirm the modified judgments.

FACTS AND PROCEDURAL HISTORY

On the afternoon of February 15, 2005, Jose G.'s friend Moe invited Jose back to Moe's house to smoke marijuana.   Although Moe said nobody else would be there, when Jose arrived he found Daniel Marquez, Johnny Santos Garcia, and Juan Morales inside Moe's house.   Morales accused Jose and someone named Ruben of taking and perhaps selling a gun that Morales had loaned to Ruben.   Morales had a gun in his waistband, showed it to Jose, and told him he had to get the gun back or pay him for it.   Jose offered to pay $100 that he had on him, along with his wristwatch, until he could come up with the rest of the money.   Garcia took the cash, the watch, and some stereo gear from Jose's truck.   Jose then got in his truck and drove off.   According to Jose, Marquez was not doing or saying anything during this time.

At around 7:00 p.m. on February 19, 2005, Marquez, Garcia, and Morales burst into a “clubhouse” located behind Jose's house.   Jose, Pedro M. and Tayiana R. were inside the clubhouse, drinking liquor and smoking marijuana.   Marquez was carrying a sawed-off shotgun.   Garcia and Morales had handguns.   Garcia's gun was a Glock.   The three armed intruders demanded that Jose pay them $600 or $700 for Morales's missing gun, but Jose denied owing them any money.   Garcia took a watch and money from Jose, and a mobile phone from Pedro.   Garcia forced Jose and Pedro at gunpoint to leave the clubhouse and walk to Jose's truck.   When Jose said the keys were inside the main house, Garcia told him to go get them.   Instead, Jose went into the house and refused to come out.   Garcia said he would take Pedro as collateral.

Garcia ordered Pedro to get in Morales's red Chevy Blazer.   Morales and Marquez also got in the car, and they drove off with Pedro.   Garcia took Pedro's identification documents, struck him with the gun, and threatened to kill him.   When Pedro said he could get money from his stepfather, he was driven to the stepfather's house.   When Pedro told his stepfather, Daniel J., that he needed $600, Daniel said he needed time to get the money.   Garcia ordered Pedro back into the car and struck him with a gun again.   Eventually, the three attackers let Pedro go with a warning that they would kill him and his family if he told anybody what had happened.   As Pedro walked away, he did look back.   Garcia pulled out a gun and pointed it at Pedro, but Morales grabbed Garcia's arm.   Garcia agreed he would not shoot Pedro, and Pedro ran away.

Later that same night, Morales, Marquez, and Garcia were walking along San Marino Avenue in Paramount when they crossed paths with a pickup truck driven by Eduardo G. His cousins, 14-year-old Cesar G. and Manuel G., were passengers.   When Eduardo stopped at a stop sign, Marquez, Morales, and Garcia approached the truck.   Eduardo backed up, then heard gunshots from behind and saw a bullet hole in the windshield.   He drove off but then realized Cesar had been shot.   Cesar died from a gunshot wound to the head.

Efren S., who was 13, saw the shooting from the window of his grandparents' house.   He positively identified Garcia and Marquez as two of three men who approached Eduardo's truck.   Garcia seemed to be yelling and flashing gang signs, then pulled out a gun and fired at the truck.   Although Efren initially told the police he thought he saw gunfire coming from inside the truck, Efren later realized he was seeing Garcia's gunfire reflected in the truck's windows.

Gloria A. lived nearby and went outside right after hearing the gunfire.   She had known Garcia and Marquez since they were children, and saw them running up the street, then driving away in a red Blazer.

Sheriff's Sergeant Steve Brannigan was on patrol nearby when he heard six gunshots that sounded like they all came from the same gun.   He called in the shooting and drove toward the area from which the shots came.   As Brannigan drove to the location, Eduardo drove up behind him and honked his horn.   Brannigan stopped and Eduardo pulled over.   When Brannigan saw that someone had been shot, he called for paramedics.   Brannigan never saw a gun inside Eduardo's truck.

Four shell casings were found at the scene of the shooting, and a criminalist who tested them concluded that all four had been fired from a .40-caliber Glock handgun.   The lead detective assigned to the case walked the area and found evidence of no other firearms.   No gunshot residue was found on Cesar's body, but lead particles were found on Eduardo's hands.   According to a criminalist testifying for the defense, gunshot residue consists of lead, barium, and antimony, and the latter two were not found on Eduardo's hands.   As a result, the expert could not say whether Eduardo in fact had gunshot residue on his hands.   The lead particles found on Eduardo's hands could indicate that Eduardo fired a gun, was near a gun when it was fired, or that he picked up the particles while in contact with objects containing lead.

Marquez, Garcia, and Morales were charged in the first three counts of the information with crimes arising from the February 19 incident with Eduardo's truck:  (1) first degree murder of Cesar;  (2) attempted murder of Eduardo;  and (3) shooting at an occupied vehicle.   Garcia and Morales (but not Marquez) were charged in count 4 with robbery arising from the February 15, 2005 incident with Jose. In connection with the February 19 robbery at Jose's clubhouse, Garcia, Morales, and Marquez were also charged with two counts of home invasion robbery (count 5 as to robbing Jose and count 6 as to robbing Pedro), one count of kidnapping Pedro for ransom (count 7), and one count of attempted murder based on Garcia pointing his gun at Pedro as Pedro fled (count 8).   According to a police gang expert, Marquez, Garcia, and Morales were members of the San Streets gang, and all the crimes took place in that gang's territory.   It was therefore alleged that the crimes were committed for the benefit of a criminal street gang.  (Pen.Code, § 186.22.)

Appellants ask us to reverse the judgments for numerous reasons:  (1) the prosecutor violated their constitutional right to a fair trial by challenging prospective jurors who were African-American;  (2) the trial court should not have allowed the jury to hear Jose's and Daniel's testimony from the first trial because the prosecution had not been diligent in securing their attendance at the second trial;  (3) the trial court erred by admitting evidence of threats made to two prosecution witnesses;  and (4) the trial court erred by warning defense counsel that if they pursued a line of questioning about why the police did not follow up on certain leads, then evidence of Morales's statements incriminating appellants might be allowed.   Garcia contends as to himself alone that:  (1) the trial court erred by not allowing him to ask gang experts questions relevant to his self-defense theories;  (2) there was insufficient evidence to support the convictions arising from the shooting death of Cesar;  (3) cumulative error requires that the entire judgment be reversed;  and (4) his sentence for shooting at an occupied car should have been stayed.   Marquez contends as to himself alone that:  (1) it was error to try him for the February 15 robbery because he was not charged with that count during the first trial;  (2) the new robbery count was the result of prosecutorial vindictiveness and violated his due process rights;  (3) there was insufficient evidence to support his conviction for the February 15 robbery;  and (4) a firearm use enhancement charged in connection with that robbery should be stricken.

DISCUSSION

1. Claim of Wheeler/Batson Error During Jury Selection

A. Applicable Law

During jury selection, the prosecutor peremptorily challenged nine black prospective jurors.   Garcia contends that as to eight of these, the prosecutor violated his constitutional right to a fair trial by exercising those challenges due to the race of the prospective jurors.   Marquez makes the same contention as to only one of those eight prospective jurors.   Because Marquez joins in Garcia's arguments insofar as they apply to him, our discussion applies equally to each appellant.

Both the federal and California Constitutions prohibit lawyers from using peremptory challenges in order to exclude jurors due to their race.  (Batson v. Kentucky (1986) 476 U.S. 79 (Batson );  People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler ).)   When a motion on this ground is made, a three-step inquiry is triggered.   First, the trial court determines whether the defendant has made a prima facie case that the prosecutor exercised a peremptory challenge based on race.   Second, if that showing is made, the burden shifts to the prosecutor to show that the challenges were exercised for a race-neutral reason.   Third, the trial court determines whether the defendant has shown that purposeful discrimination occurred.   The ultimate burden of persuasion always stays with the party who objects to a peremptory challenge on this ground.   (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix ).)

If the trial court concludes the first step by determining that a prima facie showing of discrimination was made, the prosecutor must provide a clear and reasonably specific explanation of the legitimate reasons for the challenges.   The justification does not have to rise to the level applicable to challenges for cause, and even a trivial reason, if genuine and neutral, is satisfactory to dispel the inference of discrimination.   A prosecutor may legitimately challenge a juror based on facial expressions, gestures, hunches, and arbitrary or idiosyncratic reasons so long as they are legitimate and not race-based.   At this second stage of the Wheeler/Batson inquiry, the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations are credible.   Factors employed in making this determination include the prosecutor's demeanor, how reasonable or improbable the explanations seem, and whether the reasons stated have some basis in accepted trial strategy.   The trial court draws upon its own observations of the voir dire, its own experiences as a lawyer and judge, and upon the common practices of the prosecutor and the agency for which he works.  (Lenix, supra, 44 Cal.4th at pp. 612-613.)

We defer to the trial court's ruling and examine only whether substantial evidence supports its conclusions.   We exercise great restraint when doing so and respect the trial court's ability to distinguish honest reasons from sham excuses.   So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.  (Lenix, supra, 44 Cal.4th at pp. 613-614.)

B. Facts Relevant to Appellants' Wheeler Motions

Garcia made three separate Wheeler motions in response to three sets of peremptory challenges by the prosecutor to prospective jurors who were black.   As to each motion, the trial court found that a prima facie showing of discriminatory intent had been made, but denied each motion after concluding that the prosecutor's justifications for the challenges were legitimate.

The first Wheeler motion came after the prosecutor excused prospective Juror Nos. 26, 3, and 11.

 Juror No. 3

Juror No. 3 was a clerical worker who was single and had no children.   She had served on a civil jury that reached a verdict.   She had never been a crime victim, but ricocheting bullets entered her mother's house several years earlier.   Her mother was not harmed.   Her cousin had been convicted of robbery.

 Juror No. 26

Juror No. 26 was a letter carrier.   He was single, had no children, and had never served on a jury.   He never witnessed a crime and had never been a crime victim.   His brother did “federal time,” but he did not know anything about the nature of the conviction.   When the prospective jurors were asked whether they wanted to serve on the jury or had some doubt about their ability to be fair, he raised his hand.

 Juror No. 11

Juror No. 11 was a safety trainer at Los Angeles International Airport.   He was single and had no prior jury experience.   He and his brother were the targets in two separate gang shootings.   Juror No. 11 had not been harmed, but his brother was shot five times.   The brother survived.   All three of his brothers had been arrested.   Two were involved with gangs, and one was “locked up forever.”

The prosecutor justified his peremptory challenges to these three prospective jurors because they had relatives who had been convicted of crimes.   As to prospective Juror No. 11, the prosecutor added that the juror had two brothers who were gang members.   As to prospective Juror No. 26, the prosecutor added that his office believed postal workers made for unpredictable jurors.   The trial court found these reasons legitimate and denied the first Wheeler motion.

The next Wheeler motion came after the prosecutor peremptorily challenged prospective Juror Nos. 20 and 31.

 Juror No. 31

Juror No. 31 was a retired registered nurse.   Her son was in prison for about one year for a drug offense.   She served on a jury four or five times before, in one of the cases the defendant ended up entering a guilty plea and verdicts were reached in all the others.   She was in the process of changing religions and thought it would be a hardship to find someone guilty because she would question whether she was doing the right thing.   She also raised her hand to show that she either did not want to serve as a juror, or had a doubt about her ability to be fair.

 Juror No. 20

Juror No. 20 was a retail supervisor who was single and had no children.   Someone once broke into her car.

When asked to explain why he excused Juror No. 31, the prosecutor reminded the court that he had earlier unsuccessfully challenged that same juror for cause because the prosecutor believed Juror No. 31 had said she could not vote guilty even if the prosecutor had proven his case.   Although the court denied the challenge for cause because it disagreed with that interpretation of the prospective juror's statement, the prosecutor still had doubts whether Juror No. 31 could find appellants guilty even if the case were proved.   The prosecutor was also concerned about the fact that her son served prison time for a drug offense.   As for Juror No. 20, the prosecutor said he was young, single, and did not have a “particular stake in the community.”   In response to questioning by defense counsel, Juror No. 20 said he could not be swayed by other jurors and also appeared to be falling asleep.

The trial court did not directly address the reasons given for challenging Juror No. 20.   Instead, it said, “I think based on the representation from counsel I am going to accept their offer of proof as to the rational[e].   And I do note that it is race neutral as the basis for excusing the juror, in particular Juror Number 31.   She was an individual who said because of her religious transition she could not judge.   And while the court ․ didn't grant a challenge for cause, those were certainly some of the things that she had represented.”

The final Wheeler motion came after the prosecutor peremptorily challenged prospective Juror Nos. 23, 42, and 67.2

 Juror No. 42

Juror No. 42 was a personnel assistant for Los Angeles County.   She was single and had never served on a jury.   She was twice a purse snatching victim.   Her cousin was in jail.   When asked why, she said, “I think weed.”   She did not attend the cousin's trial and did not believe her cousin's conviction would affect her ability to be fair.

 Juror No. 67

Juror No. 67 was a homemaker.   She had no previous jury experience.   The prosecutor asked her about the possibility of a witness testifying to “an explanation of the [defendants' gang] tattoos that it was in some way relevant to the case.  [¶] If that happened, would you be able to take that evidence into account, or would you still feel it's unfair just because somebody was talking about the tattoos?”   Juror No. 67 replied, “I think it would still be unfair for me to judge them for the simple fact even though they might have a tattoo that's relevant, they may not have [known] that it was a relevant tattoo or what it meant at the time that they got the tattoos.”

 Juror No. 23

Juror No. 23 was challenged because he had been sleeping.   The trial court agreed with that, and Garcia concedes the propriety of that peremptory challenge.

The prosecutor explained that he challenged Juror No. 42 in line with his usual concern about jurors with close relatives who are in prison.   The prosecutor was also concerned by the juror's informal use of the phrase “in prison for weed” when describing the nature of her cousin's offense.   The prosecutor said “it seemed like a very informal, not very serious way to refer to somebody being in prison for marijuana possession.   And it kind of, given the formality of the court setting, kind of took me aback.   I couldn't understand what she was saying at first.  [¶] So I was disturbed by that.”   As for Juror No. 67, the prosecutor was troubled by her answer about her evaluation of expert testimony concerning the defendants' tattoos.   Even though he got her to say she would take it into account, it “felt like it was a bit of a struggle.”   The prosecutor added that Juror No. 67's response also troubled his investigator.   The prosecutor conceded it was a close call, but said he had been “burned too many times by having a question about a juror and deciding, you know what, I'm going to ignore the question in my mind and go ahead and try the case.   And then that person ends up hanging up the jury.   So my increasing position over the years has been if there's a question, I will dismiss the juror.   And I had a question based on that answer.”   The prosecutor also pointed out that he had already accepted panels that included two black jurors.3

After checking the court reporter's notes and examining the questions asked and answers given by prospective Juror No. 67, the court said “it did indicate that she still thought it would be unfair to take the tattoos into consideration, even if they were in his hypothetical deemed to be relevant.”   The court therefore denied the Wheeler motion as to that prospective juror.   As for prospective Juror No. 42, the trial court found that the prosecutor offered a legitimate, race-neutral basis for his peremptory challenge.

C. No Wheeler/Batson Error Occurred

Juror Nos. 3, 26, 11, 31, and 42 each had family members in prison, which is a legitimate, race-neutral reason for a prosecutor's peremptory challenge.  (See People v. Jordan (2006) 146 Cal.App.4th 232, 258, and cases cited therein.)   In addition, the court properly found a race-neutral reason as to Juror No. 31 because her emerging religious convictions made it hard for her to cast a guilty vote even if the case were proven.   In People v. Cash (2002) 28 Cal.4th 703, 725, the Supreme Court held that a challenge to a prospective juror was proper because his religious bent made it difficult for him to impose the death penalty.   By parity of reasoning, a religious bent that would prevent a juror from finding a defendant guilty even if the prosecutor proved his case is sufficient grounds for a peremptory challenge.

The prosecutor challenged Juror No. 20 because he was young and did not appear to have a stake in the community.   Because we focus on whether the prosecutor's reason was subjectively and genuinely race-neutral, and not on its objective reasonableness, we conclude the trial court did not err by finding no Wheeler violation as to that juror.  (People v. Hamilton (2009) 45 Cal.4th 863, 903-904.)   Finally, Juror No. 67 expressed hesitancy to credit expert testimony about the relevance of gang tattoos.   A peremptory challenge is proper when a prospective juror indicates he might be biased in favor of expert witnesses.  (People v. Jose (2002) 28 Cal.4th 1083, 1124-1125.)   The flip side of that notion is the propriety of a peremptory challenge to a prospective juror who indicates her unwillingness to consider such evidence.

Given the deference we accord the trial court in this area, we conclude that no Wheeler/Batson error occurred.

2. No Error in use of Absent Witnesses' Prior Trial Testimony

Jose G., the victim of the February 15 and 19 robberies, was not available to testify at the second trial.   Neither was Daniel J., the stepfather of February 19 robbery and kidnap victim Pedro M. Defense counsel moved to prevent use of their testimony from the first trial on the ground that the prosecutor did not use reasonable diligence in attempting to secure the attendance of those witnesses, but the trial court denied the motion.   Appellants contend the trial court erred.

An absent witness's testimony from an earlier trial may be admitted in evidence at a subsequent trial if the witness was subject to cross-examination by the defendant during the first trial, and if the prosecution exercised reasonable or due diligence in attempting to secure the witness's attendance at the new trial.  (Evid.Code, §§ 240, subd. (a)(5), 1291;  People v. Cromer (2001) 24 Cal.4th 889, 897-898 (Cromer ).)   There is no mechanical definition of the term “due diligence.”   However, it implies perseverance, and substantial and untiring efforts made in earnest.   Factors to be considered include whether the search was timely commenced, the importance of the witness's testimony, and whether leads were competently explored.  (Cromer, at p. 904.)   If the facts concerning the prosecution's efforts to secure a witness's presence at trial are in dispute, we defer to the trial court's factual findings.   We then independently review those facts against the requisite legal principles.  (Id. at pp. 900-901.)

Our decision in Garcia I was filed in January 2008, and the second trial began in April 2009.   Sheriff's Detective Eddie Brown testified at the hearing on the admissibility of the missing witness's prior testimony.   Brown said that he spoke with robbery victim Jose by phone, then met with him in person, in February 2009.   Jose said he had received some threatening letters and was afraid to testify.   Brown went to Jose's last-known address in mid-March 2009 but saw no evidence that Jose still lived there.   Brown surveilled the location several times after that in the hope of spotting Jose. When Brown learned that Jose was supposed to meet with his probation officer in early April, Brown attended that meeting and served Jose with a subpoena to appear at the trial.   Jose said he would be there.   When Jose did not appear on the promised date, a warrant for his arrest was issued.

The following week, Brown learned that witness and robbery-kidnap victim Pedro was being held by the San Diego County Sheriff's Department.   Because Pedro and Jose knew each other, Brown arranged to have Pedro transferred to Los Angeles County.   After the transfer took place, Brown interviewed Pedro, who told him where Jose might be found.   Brown and several deputies went to that location but could not verify that Jose lived there.   Brown then put out an alert to hospitals, coroners offices, and the booking system for Southern California counties.   He also checked the records of the Department of Motor Vehicles (DMV), but they listed the original address where Brown had already checked.   Brown also spoke with Jose's family members, including his mother, who said she had not heard from Jose and did not know where he was living.   The mother promised to leave a message with Jose.

As for his efforts to locate Daniel, Brown testified that in March 2009 he went to a Bellflower address listed in the DMV records, where he spoke with people who were not related to Daniel and who said Daniel did not live there.   Because Daniel was Pedro's stepfather, Brown asked Pedro where Daniel could be found.   Pedro would not provide an address, but did give Brown Daniel's mobile phone number.   Brown called that number and spoke with Daniel, who said he would not testify at the upcoming second trial.   Daniel said he moved away because he had been threatened.   Acting on a request from Brown, Pedro tried but failed to convince Daniel to testify.

On April 24, 2009, Brown obtained a material witness warrant for Daniel, and left a message about the warrant on Daniel's voicemail system the next day.   Brown also checked with various jails, coroners offices, hospitals, and police departments in an attempt to find Daniel.

The trial court found that both witnesses were unavailable and that the prosecution had exercised due diligence in trying to secure their attendance at trial.   Appellants do not contend that the actual efforts taken were insufficient.   Instead, they contend the prosecutor waited far too long - more than a year after we reversed the judgment in the first trial - to begin those efforts.4  Appellants contend that the decisions in People v. Sanders (1995) 11 Cal.4th 475, 524-525, and People v. Walton (1996) 42 Cal.App.4th 1004, 1010-1011, disapproved on another ground in Cromer, supra, 24 Cal.4th at page 901, footnote 3, support their claim that the prosecution did not act promptly.   We disagree.   In both decisions, which concerned defense counsel's failure to secure a witness's attendance, the focal point of the analyses was the inadequacy of the efforts themselves, not the time at which they began.

By contrast, in People v. McElroy (1989) 208 Cal.App.3d 1415, disapproved on another ground in Cromer, supra, 24 Cal.4th at page 901, footnote 3, witness subpoenas were obtained by the prosecution 24 days before trial.   The appellate court held that time period was more than enough to establish due diligence, noting that “even shorter periods have been found reasonable.”   (Id. at p. 1427.)   Efforts to secure the attendance of the missing witnesses in this case were begun at least a month before the second trial started.   We therefore hold that the trial court did not err by concluding the prosecution exercised reasonable diligence in attempting to secure their attendance at trial.

3. Evidence of Threats to Prosecution Witnesses

A. Gang Threat Evidence

Evidence concerning threats to prosecution witnesses Gloria and Pedro specifically, and to witnesses generally, was introduced over defense objections.   Pedro, the February 19 robbery-kidnap victim, was allowed to testify that he got a phone call from someone telling him that “stay[ing] lost” was in the best interests of him and his family.   The caller did not mention testifying at trial, but did say Pedro should disappear.   The caller also said he knew where Pedro's family lived, and the call worried Pedro.   Pedro testified that the voice sounded like that of his friend Fly. Over a defense objection, the court let Pedro testify that he believed Fly was a gang member because he ran with the San Streets gang.   The court sustained an objection to the question whether appellants belonged to a gang.

After holding a hearing on the issue, the court allowed Gloria, who saw appellants run off and get into a red Blazer right after Cesar was shot and killed, testify about threatening phone calls she received.   According to Gloria, she received seven or eight calls the day before she was set to testify.   The callers, who were female, did not identify themselves and did not mention the trial or the subject of testifying at the trial.   The callers said Gloria was a “fucking bitch,” “a slut,” and a “Spanish bitch.”   The callers also threatened to rape Gloria.   Gloria recorded one of the calls on her mobile phone and played it for the jury.

The threat evidence was admitted under People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 (Olguin ) as evidence concerning both the witnesses' states of mind and credibility at the time of their testimony.

Later, when questioning his gang expert, the prosecutor posed a hypothetical keyed to the threatening call Pedro received, and asked whether the expert believed that meant the crimes of which appellants were accused were gang-related.   This was allowed over a defense objection that the question as framed was both compound and improper impeachment.   The expert replied “[m]ost definitely, because that's what gangs do.   That's why they're in a gang, because they have a bunch of people watching their back that are willing to commit violent acts in order to get what they want and to prevent justice from happening.”   After the answer came in, the trial court called the lawyers to the bench, where defense counsel explained he meant to object that the question was an improper hypothetical.   The trial court reminded the prosecutor that it had permitted the threat evidence to show the witnesses' states of mind, but the prosecutor was now using the evidence to establish its truthfulness.   The court therefore admonished the jury that the threat evidence it was hearing was to be used solely to evaluate the witnesses' states of mind and credibility, and could not be used to determine the truth of the threat evidence.   It also overruled appellants' motions for a mistrial based on the improper admission of the evidence.

The gang expert next testified that intimidating witnesses was one of the primary activities of the San Streets gang, and that the witnesses he interviewed in this case seemed afraid when he questioned them.

Over defense objections of relevancy and undue prejudice, the prosecutor was then allowed to ask his expert about the presence in court of San Streets gang member Javier “Creeper” Carrillo, and whether that might intimidate witnesses.   The expert testified that “[s]ome San Street gangster by the name of Carrillo came in the back and [sat] in the back corner with a female.”   A defense objection to calling Carrillo a gangster was sustained.   The expert then testified that Carrillo was in court when Efren testified.

However, the trial court learned soon after that Carrillo was Marquez's brother-in-law, and that his presence during the trial might have been motivated by the family connection, not the gang connection.   Even so, the court overruled renewed objections to the evidence.   When the expert testified that Carrillo was a member of the San Streets gang, the prosecutor asked a hypothetical as to whether Carrillo's presence in court the week before was relevant to the expert's opinion regarding appellants' membership in the same gang.   The expert answered that it was very common for a criminal defendant's fellow gang members to come to court to show support for the defendant, and to take note of who testified and what they said.   If the witness knew the gang member, it might change their testimony or otherwise intimidate him.   When defense counsel objected that this testimony exceeded the permissible scope of the court's ruling on the topic, the trial court did not rule on the objection and told the prosecutor to ask another question.

Finally, during closing argument, the prosecutor made three statements concerning the evidence of threats and intimidation that are raised as issues on appeal:  (1) after referring to Carrillo's presence in court, the prosecutor said “it is something that gangs do, they engage in this pattern of intimidation and there is a fellow gang member that comes to court to watch Efren testify”;  (2) summarizing his expert's testimony as evidence that people joined gangs to be part of a larger group that was violent, which made it known that if “I go to court, my gang is going to back me up and they may be threatening witnesses”;  (3) the prosecutor argued that some of the witnesses were frightened because of possible retaliation by the gang or by people related to the case.

After the trial ended, Garcia, joined by Marquez, brought a new trial motion on several grounds, including error in allowing evidence of the threats made to Pedro and Gloria.   That motion was denied.

B. No Error Occurred in Admitting the Evidence, or Denying the Mistrial

and New Trial Motions

Garcia contends that the trial court erred by admitting the various evidence of gang threats and intimidation.   He contends the evidence from Gloria and Pedro was irrelevant and unduly prejudicial.   He contends the gang expert's testimony about the effect of that evidence was improperly used to prove the gang benefit allegations.   He also contends that evidence concerning fellow gang member Carrillo's presence in the courtroom was improper.   Marquez does not challenge the admissibility of the evidence per se, but contends the trial court erred by denying the mistrial and new trial motions that were brought in response to some of that evidence.

The fact that a witness testifies after having received threats is relevant, even if there is no evidence linking the threat to the defendants, because it enhances the witness's credibility.  (Olguin, supra, 31 Cal.App.4th at p. 1368.)   If the threat came from the defendant's fellow gang member, the gang connection is also relevant because that makes the threat more credible.   (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.)   Evidence from Gloria about the threats she received was therefore admissible even though she could not link the threats to the appellants, their gang, or her testimony at trial.   Evidence from Pedro about the threat he received was admissible because he thought the caller was someone named Fly, who Pedro believed was a member of the San Streets gang.

Although the trial court could have excluded the evidence under Evidence Code section 352 if it found the prejudicial effect outweighed its probative value, we review the court's decision under the abuse of discretion standard.   No abuse of discretion occurred because the trial court admonished the jury that the threat evidence was to be used only in connection with the witnesses' credibility and state of mind.  (People v. Burgener (2003) 29 Cal.4th 833, 869.) 5  The same is true as to the gang expert's testimony.6

As far as allowing the gang expert to testify about the intent and effect of Carrillo's presence in the courtroom, assuming that any error occurred, we conclude it was harmless beyond a reasonable doubt.   To the extent the evidence was allowed to show that appellants were members of the San Streets gang, evidence on that point came from other sources and was not disputed.   To the extent the evidence was allowed to show that witnesses were being intimidated, it was cumulative of the testimony from Pedro and Gloria, and was offset by evidence that Carrillo may have attended the trial solely because he was Marquez's brother-in-law.

As for Marquez's contention that the trial court erred by denying the new trial motion, the motion argued only that the evidence from Gloria and Pedro was not properly admitted.   It did not discuss the gang expert's testimony at all.   Because we have already held that the evidence from Gloria and Pedro was properly allowed, there was also no error in denying the new trial motion.

In regard to the mistrial motion that was made after the gang expert testified based on a hypothetical derived from evidence of the threat made to Pedro that appellants' crimes were gang-related, the trial court had considerable discretion to decide whether its admonition to use the testimony only in regard to the credibility of Pedro and Gloria was sufficient to cure any erroneous admission of that evidence.  (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)   We disagree with Marquez that the admonition was ineffective, and hold that the trial court did not abuse its discretion when it denied the mistrial motion.

Finally, to the extent Marquez bases his contentions on the three statements the prosecutor made during argument, we note that no objections were made to the prosecutor's statements, and they were not raised as grounds for a new trial.   As a result, any issues as to those statements are waived.

4. No Error in Trial Court's Warning About Possible Consequences of

Asking the Investigating Officer Why Certain Leads Were Not Followed

Defense counsel questioned lead sheriff's detective Brown about statements by Efren and two others that shots were fired from within Eduardo's truck.   In response to defense questioning, Brown also testified that although gunshot residue samples were taken from the people inside the truck, he did not order testing of those samples.   When defense counsel indicated that they wanted to ask Brown why he did not order the testing, the prosecutor said Brown would likely respond by stating that his decision was based on information from anonymous tipsters who identified appellants.   The trial court also noted that codefendant Morales's statements implicating appellants might also be “fair game” if the question was asked.

Appellants contend the trial court's warning impermissibly curtailed their cross-examination of Brown and therefore restricted their defense.   They are wrong.   Because the court did no more than warn of the potential consequences of pursuing their line of questioning, no limits were imposed on their cross-examination.  (People v. Gallego (1990) 52 Cal.3d 115, 174.)   We will not speculate as to what rulings the trial court might have made on questions that the prosecutor did not ask, or on answers that a witness did not give.

5. Exclusion of Evidence from Gang and Police Investigation Experts

In connection with counts 1 through 3 arising from the shooting death of Cesar, Garcia contends the trial court erred by preventing him from asking both the prosecution and defense gang expert witnesses whether a reasonable gang member would have feared for his life when, while in gang territory at night, a strange car backed up toward him with its lights out.   Instead, the court said Garcia could argue the inference of a fearful reaction to the jury.   Garcia claimed this evidence was relevant to his theories of perfect and imperfect self-defense and sudden quarrel/voluntary manslaughter in connection with counts 1 through 3. Garcia was also not allowed to ask a police criminalist who planned to testify on his behalf whether the sheriff's department conducted a shoddy investigation because it did not search for gunshot residue inside Eduardo's truck.   As a result, the witness did not testify.

Garcia contends the trial court erred because the admissibility of the evidence was the law of the case due to our decision in Garcia I. As Garcia points out, such evidence was admitted at the first trial, and the presence of that evidence led us to reverse in Garcia I because it obligated the trial court to instruct the jury on theories of perfect and imperfect self-defense.   As respondent points out, however, the admissibility of that evidence was not at issue in Garcia I, and it is therefore not law of the case.  (People v. Cooper (2007) 149 Cal.App.4th 500, 524.)

In Garcia I, we cited People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on another point in People v. French (2008) 43 Cal.4th 36, 48, footnote 5, for the proposition that evidence of a defendant's state of mind could come from sources other than the defendant's own testimony.   At issue in Hill was whether the trial court erred by refusing to instruct on self-defense.   The Hill court held that no error occurred, noting in passing that even though evidence of a defendant's state of mind could come from outside sources, there was no evidence from the defendant or any other witness about the defendant's state of mind.  (Hill, supra, at p. 1102.)  Hill, in turn, cited People v. De Leon (1992) 10 Cal.App.4th 815, 824 for that proposition.  De Leon in turn cited People v. Castillo (1987) 193 Cal.App.3d 119, 126, and People v. Anderson (1983) 144 Cal.App.3d 55, 62, for the proposition that evidence of a defendant's state of mind related to the need for self-defense may be present without defendant's testimony.   Both Anderson and Castillo were sexual assault cases where the issue was whether there was evidence from the victims that would support the defendants' belief that they had consent for the sex acts.   In short, neither Hill nor its decisional antecedents address the issue whether an expert witness can render an opinion on what a particular defendant's state of mind relative to the need for self-defense might be in reaction to certain situations.

Assuming for the sake of argument only that the questions should have been allowed, we hold that the error was harmless even beyond a reasonable doubt.   In regard to questions about a hypothetical gang member's reaction to seeing a strange truck without its lights on back up towards him at night while in gang territory, we agree with the trial court that a jury could reasonably infer on its own that a gang member would react fearfully.   Expert testimony would add nothing to that inference.7

In regard to an expert opinion that the investigation was shoddy because gunshot residue tests were not ordered by the lead detective, the jury knew the testing had not been ordered, and was therefore free to draw its own inferences about whether that led to a shoddy investigation.   Furthermore, despite the detective's failure to order the testing, a residue test was taken from Cesar, and was negative, while the jury heard about the presence of lead particles on Eduardo's hands that could have come from either a gun fired inside the truck or a bullet entering the cabin from outside the truck.   Having an expert opine that the investigation was shoddy would not have added anything significant to the jury's evaluation of the evidence.

6. There Was Sufficient Evidence of Garcia's Participation in Counts 1-3

Garcia contends there was insufficient evidence to support his convictions of murder, attempted murder, and shooting at an occupied vehicle arising from the February 19 shooting death of Cesar.   Although Efren said Garcia fired the gun at Eduardo's truck, and Gloria saw appellants run off together right after the shooting, Garcia contends conflicts in the evidence render that testimony so insubstantial that we must reverse the three convictions.   These include:  (1) it was dark and rainy and Efren got only a brief look at appellants;  (2) Efren said he saw appellants approach the truck and throw gang signs, but Eduardo did not testify that the men who approached him did so;  (3) Efren said Garcia wore a T-shirt, but Eduardo said all three men wore hooded sweatshirts;  (4) Gloria testified that she ran outside and saw appellants within seconds of the shooting, but was impeached by her prior testimony that several minutes had elapsed;  (5) consistent with Eduardo, but inconsistent with Efren, Gloria said the men she saw wore hooded sweatshirts;  (6) Efren said right after the shooting that he saw shots fired from inside Eduardo's truck, but later changed his story;  and (7) Deputy Chheang Chab, who came to the scene, testified that Efren told him about the shots coming from within the truck.8

When a defendant challenges the sufficiency of the evidence to sustain a judgment, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence upon which a trier of fact could find the defendant guilty beyond a reasonable doubt.   Evidence is substantial when it is reasonable, credible, and of solid value.  (People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince ).)   We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, whether it was direct or circumstantial.  (Ibid.) The resolution of conflicts or inconsistencies in the testimony is the exclusive province of the jury.  (People v. Solomon (2010) 49 Cal.4th 792, 818.)

With these rules in mind, we hold that the evidentiary conflicts Garcia points to were simply matters for the jury to work out, and did not render Efren's eyewitness identification inherently incredible.   We therefore conclude that substantial evidence supports the verdicts in counts 1 through 3.

7. Garcia's Sentence for Shooting at an Occupied Vehicle Should Have Been Stayed

Count 3, for shooting at an occupied vehicle, arose from the same acts as the murder of Cesar and the attempted murder of Eduardo.   The trial court imposed consecutive sentences on Garcia for all three counts, including 15 years to life, along with another 10 years for a firearm use enhancement on count 3. Garcia contends the sentence for shooting at an occupied vehicle should have been stayed instead under Penal Code section 654.   Respondent agrees that this is so if there were only two occupants in the truck, but contends it is arguable there was a third person because, even though Efren testified at trial he could not see how many occupants there were, he originally told Deputy Chab that he saw three persons inside.

The jury was not asked to find that there was a third person in the truck, and that does not appear to have been the prosecutor's theory of the case.   In fact, when arguing the murder and attempted murder charges to the jury, the prosecutor referred to only Cesar and Eduardo as having been in the “kill zone,” and when arguing the shooting-into-an-occupied-vehicle count, never contended there was anyone else inside the truck.   The prosecution's sentencing memorandum said that Eduardo was driving Cesar, but did not mention a third occupant, and the prospect of a third occupant was never mentioned at the sentencing hearing.   Accordingly, because there were only two occupants in the vehicle, and because Garcia was convicted and sentenced for separate acts of murder and attempted murder of both victims, the sentence for shooting at an occupied vehicle should have been stayed.   As a result the 10-year firearm use enhancement (Pen.Code, § 12022.53, subd. (b)) that was added to that sentence, must also be stayed.  (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.)

8. Charging Marquez with the February 15 Robbery Was Not Improper

A. Penal Code Section 654

At the first trial, Marquez was not charged with the February 15 robbery of Jose that took place at Moe's house.   The testimony at both trials was generally that Marquez was present during the robbery but was not an active participant.   After we reversed the judgment in Garcia I, a new prosecutor decided to add that charge against Marquez.   Marquez claims that doing so violated the double jeopardy principles contained in Penal Code section 654 and raised a presumption of vindictive prosecution that violated his constitutional due process rights.

Under Penal Code section 654, “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.   An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”  Section 654 addresses both multiple punishment and multiple prosecutions.   The bar against multiple prosecutions is designed to prevent harassment, and double prosecution may be precluded even when double punishment is not.  (People v. Valli (2010) 187 Cal.App.4th 786, 794-795 (Valli ).)

Marquez relies on Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett ), where the court held that Penal Code section 654 was violated in the case of a defendant who was first charged with a misdemeanor count of exhibiting a firearm.  (Pen.Code, § 417.)   He was later charged with a felony count of being a felon in possession of a firearm.   The defendant pled to the misdemeanor charge and moved to dismiss the pending felony.   When the trial court denied that motion, the Supreme Court issued a writ of prohibition ordering dismissal of the new felony charge.   The court reasoned that when section 654 was read in conjunction with section 954, which permits the prosecutor to file separate charges arising from or based upon factually connected acts, it showed the Legislature intended to require the joinder of related offenses in a single prosecution.  (Kellett, supra, at p. 826.)   This was designed to prevent not just the harassment of defendants, but to avoid the waste of public funds by needlessly repetitive prosecutions.  (Id. at pp. 826-827.)

The Kellett court held that when “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause.   Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.”  (Kellett, supra, 63 Cal.2d at p. 827.)

Marquez contends Kellett applies because the prosecution was certainly aware he was present during the February 15 robbery, and the evidence showed that the February 19 robbery was connected to, and a continuation of, the first robbery.   He is mistaken.  “Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding.”  (People v. Cuevas (1996) 51 Cal.App.4th 620, 624 [Kellett not applicable to bar separate prosecutions of separate cocaine sales taking place on separate days].)   In People v. Douglas (1966) 246 Cal.App.2d 594, defendants Meyes and Douglas committed a series of robberies and assaults over a three-month period.   Ten days after the last such crime, they killed a police officer who tried to arrest them.   Both were charged with the murder of the police officer.   After Meyes was convicted and Douglas was acquitted, both were charged with the earlier robberies and assaults, and both were then convicted.   The separate prosecutions did not violate Kellett because they involved unrelated offenses arising from separate physical acts performed at different times.   Crimes like murder, robbery, and assault normally have a beginning and an end, and where they do not overlap, simultaneous prosecution is not required.  (Id. at pp. 598-599.)

Kellett is not necessarily a simple “different time/different place” limitation.   When the evidence needed to prove one offense necessarily supplies proof of the other, multiple prosecutions may be barred.  (Valli, supra, 187 Cal.App.4th at pp. 798-799.)   However, when there is some trivial overlap of the evidence, such as the use of evidence from one crime to show motive for the other, Kellett does not apply.  (Valli, at p. 799.)

That is precisely the case here.   The February 15 and February 19 robberies were completely separated by not just time, but by the facts required to prove each one.   That the February 15 robbery established a motive or otherwise explained the events of February 19 does not call Kellett into play.9

We alternatively hold that the issue was waived because it was not raised with the trial court.  (People v. Jones (1998) 17 Cal.4th 279, 313.)

B. Claim of Vindictive Prosecution

It is a violation of a defendant's constitutional due process rights to bring new or increased charges in retaliation for the defendant's exercise of his constitutional rights.   If the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right - here, his right to appeal - the defendant has made an initial showing of apparent vindictiveness.  (Valli, supra, 187 Cal.App.4th at pp. 802-803.)   Once that presumption is raised, the prosecution bears a heavy burden of rebutting it with an explanation that eliminates actual vindictiveness.   In order to do so, the prosecution must show that:  (1) the increase in charges was justified by some objective change in the circumstances or the state of the evidence that legitimately influenced the charging process;  and (2) the new information could not reasonably have been discovered when the original charges were brought.   The trial court should consider the prosecutor's explanation in light of all the circumstances.  (Id. at p. 803.)

Respondent contends Marquez cannot raise the presumption of vindictiveness because the new charge did not arise out of the same nucleus of operative facts as the original charge.  (United States v. Robison (9th Cir.1981) 644 F.2d 1270, 1272-1273.)   However, as the Ninth Circuit later clarified, Robison made clear that the relatedness of the charges was neither dispositive nor essential to prove vindictiveness.  (United States v. Jenkins (9th Cir.2007) 504 F.3d 694, 701, citing Robison, supra, at p. 1272.)

Ultimately, we need not decide the issue because it was waived when Marquez failed to raise it as an issue at trial.  (People v. Ledesma (2006) 39 Cal.4th 641, 730.) 10

C. Ineffective Assistance of Counsel

Marquez claims that he received ineffective assistance of counsel because his trial lawyer did not object to the new robbery charge under either Penal Code section 654 or on principles of vindictive prosecution.   In order to prevail on this claim, Marquez must show:  (1) his lawyer's performance was deficient, meaning it fell below an objective standard of reasonableness under prevailing professional norms;  and (2) the deficient performance prejudiced him, meaning that without counsel's errors, a different outcome was reasonably probable.  (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.)   A reasonable probability is a probability sufficient to undermine confidence in the outcome.  (In re Thomas (2006) 37 Cal.4th 1249, 1256.)

As discussed above, we hold that the addition of the new robbery charge did not violate Penal Code section 654.   Therefore, defense counsel's failure to object on that basis was not an example of deficient performance.  (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [failure to make futile or unmeritorious objection is not ineffective assistance of counsel].)

As for vindictive prosecution, because no such motion was made, we have no record by which to evaluate the merits of such a claim.   Accordingly, the issue is more appropriately resolved by a petition for writ of habeas corpus, where a proper evidentiary record may be made.  (In re Harris (1993) 5 Cal.4th 813, 834, fn. 8;  People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.)

9. Sufficient Evidence Supported the New Robbery Count

Marquez contends there was insufficient evidence that he aided and abetted or otherwise took part in the February 15 robbery because all the evidence shows is that he was present while Morales and Garcia robbed Jose. An aider and abettor acts with knowledge of the perpetrator's criminal purpose and with the intent of committing, encouraging, or facilitating the commission of that crime.   Mere presence at the scene, or the failure to take steps to prevent the crime, is not enough standing alone to prove aider and abettor liability.   However, those factors may be considered with other evidence to establish such liability.  (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.)   Therefore, in addition to presence at the scene, companionship with the perpetrators and conduct both before and after the offense are factors to consider when determining whether the defendant was an aider and abettor.  (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)   Under the substantial evidence standard of review, we draw all reasonable inferences in favor of the judgment.  (People v. Autry (1995) 37 Cal.App.4th 351, 358.)

While it is true that Jose testified that Marquez did not do or say anything during the February 15 robbery, other evidence supports an inference that he aided and abetted that crime.   Moe told Jose that there was nobody else at his house, but when they arrived, Marquez was there along with Morales and Garcia.   Four days later, Marquez took an active role in the second robbery of Jose, which was carried out for the same purpose as the first robbery:  to recover money owed for Morales's missing gun.   Marquez said that Jose had “messed up” because he had not given “them” the money or the gun.   Marquez then stayed with Morales and Garcia and was with them to aid and abet in the shooting death of Cesar and the attempted murder of Eduardo.   Based on this, a reasonable jury could infer that Marquez was not present by accident on February 15 and was in fact there to help out if needed, or to provide silent encouragement.  (See People v. Hawkins (1968) 268 Cal.App.2d 99, 104 [evidence of aiding and abetting where appellants were together during commission of the robbery, and were in each other's company two days later].)

10. The Firearm Use Enhancement Imposed on Marquez for the February 15 Robbery Must Be Stricken

In connection with count 4, arising from the February 15 robbery of Jose, the jury found true allegations that the crime was committed for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)(4)), and that a principal personally used a firearm during the commission of that crime.   (Pen.Code, § 12022.53, subds.(b), (e)(1).)   The trial court imposed both an indeterminate term of 15 years to life as part of the gang benefit allegation, and another 10 years for the firearm use enhancement.   Marquez contends, and respondent concedes, that because the jury did not find that he personally used a firearm, the enhancement imposed under Penal Code section 12022.53 must be stricken.  (People v. Brookfield (2009) 47 Cal.4th 583, 590, 595-597.)   Accordingly, we will order that enhancement stricken.

11. Cumulative Error Claims

Appellants contend that the cumulative effect of the various errors they asserted call for reversal of the judgments.   As to most of their claims, we have found that no errors occurred.   Others were deemed waived.   Only two were arguably considered errors - the exclusion of expert evidence and the admission of evidence of Carrillo's presence in the courtroom - and we held those were harmless.   On this record, we conclude beyond a reasonable doubt that accumulation of those errors was also harmless.

DISPOSITION

The judgment as to appellant Garcia is amended to stay the sentence of 15 years to life, and the concomitant 10-year firearm use enhancement (Pen.Code, § 12022.53), that were imposed on count 3 for shooting at an occupied vehicle.   The judgment is modified as to appellant Marquez to strike the 10-year firearm use enhancement (Pen.Code, § 12022.53) that was imposed as part of the sentence on count 4 arising from the home invasion robbery of February 15, 2005.   The superior court is directed to modify the abstracts of judgment accordingly and then send corrected copies of the abstracts to the Department of Corrections and Rehabilitation.   In all other respects, the judgments are affirmed.

WE CONCUR:

FOOTNOTES

FN1. We will refer to Marquez and Garcia collectively as appellants..  FN1. We will refer to Marquez and Garcia collectively as appellants.

FN2. Garcia contends that this Wheeler motion also included Juror No. 59, but we conclude the motion did not include that juror.   The final Wheeler motion was first made after Juror No. 67 was excused.   After asserting that Juror No. 67 had been excused by the prosecutor due to her race, defense counsel said, “I think also with respect to juror number 59, he was also African-American.   He was to be excused.”   Defense counsel then mentioned Juror Nos. 23 and 42, and asked for an explanation by the prosecutor as to why those individuals should be excluded.   When the trial court asked defense counsel to clarify the disputed prospective jurors, he said, “Particularly the last [Juror No. 67].   I just noted for the record the others and for number 42, I would ask them to explain number 42.[¶]  And also number 23. 23, 42, and the last one that was just excluded [Juror No. 67].”   The prosecutor gave explanations as to only Juror Nos. 23, 42, and 67, and the failure to address Juror No. 59 was never mentioned.As we read the record, although defense counsel mentioned Juror No. 59, he did so to place the other challenged jurors in historical perspective.   When asked to specify the jurors as to which he wanted an explanation, defense counsel did not mention Juror No. 59, and we therefore hold any Wheeler/Batson claim as to that prospective juror was waived..  FN2. Garcia contends that this Wheeler motion also included Juror No. 59, but we conclude the motion did not include that juror.   The final Wheeler motion was first made after Juror No. 67 was excused.   After asserting that Juror No. 67 had been excused by the prosecutor due to her race, defense counsel said, “I think also with respect to juror number 59, he was also African-American.   He was to be excused.”   Defense counsel then mentioned Juror Nos. 23 and 42, and asked for an explanation by the prosecutor as to why those individuals should be excluded.   When the trial court asked defense counsel to clarify the disputed prospective jurors, he said, “Particularly the last [Juror No. 67].   I just noted for the record the others and for number 42, I would ask them to explain number 42.[¶]  And also number 23. 23, 42, and the last one that was just excluded [Juror No. 67].”   The prosecutor gave explanations as to only Juror Nos. 23, 42, and 67, and the failure to address Juror No. 59 was never mentioned.As we read the record, although defense counsel mentioned Juror No. 59, he did so to place the other challenged jurors in historical perspective.   When asked to specify the jurors as to which he wanted an explanation, defense counsel did not mention Juror No. 59, and we therefore hold any Wheeler/Batson claim as to that prospective juror was waived.

FN3. The panel ultimately selected included three black jurors..  FN3. The panel ultimately selected included three black jurors.

FN4. To the extent they do contest the sufficiency of the efforts made to secure the attendance of the witnesses, we conclude the efforts were substantial and amounted to reasonable or due diligence.  (See People v. Bunyard (2009) 45 Cal.4th 836, 855-856, and cased cited therein.).  FN4. To the extent they do contest the sufficiency of the efforts made to secure the attendance of the witnesses, we conclude the efforts were substantial and amounted to reasonable or due diligence.  (See People v. Bunyard (2009) 45 Cal.4th 836, 855-856, and cased cited therein.)

FN5. We reject appellants' contention that the admonition was ineffective.   The court's statement was clear and positive, and we presume the jury obeyed the admonition.  (People v. Avila (2006) 38 Cal.4th 491, 574.).  FN5. We reject appellants' contention that the admonition was ineffective.   The court's statement was clear and positive, and we presume the jury obeyed the admonition.  (People v. Avila (2006) 38 Cal.4th 491, 574.)

FN6. Furthermore, to the extent appellants rely on the expert's testimony that witness intimidation was a primary gang activity and that the witnesses he interviewed were scared, no objection was made to that testimony and the issue is therefore waived.  (Evid.Code, § 353, subd. (a);  People v. Ervin (2000) 22 Cal.4th 48, 82.).  FN6. Furthermore, to the extent appellants rely on the expert's testimony that witness intimidation was a primary gang activity and that the witnesses he interviewed were scared, no objection was made to that testimony and the issue is therefore waived.  (Evid.Code, § 353, subd. (a);  People v. Ervin (2000) 22 Cal.4th 48, 82.)

FN7. We note that in response to Garcia's self-defense argument to the jury, the prosecutor's argument was brief.   His rebuttal was geared only to the evidence and its reasonable inferences, not that the absence of expert gang evidence on this point was at issue..  FN7. We note that in response to Garcia's self-defense argument to the jury, the prosecutor's argument was brief.   His rebuttal was geared only to the evidence and its reasonable inferences, not that the absence of expert gang evidence on this point was at issue.

FN8. Garcia also points to the trial court's “shock” that Deputy Chab changed his testimony from the first trial by claiming at the retrial that Efren told him that two men in Eduardo's truck fired back after Garcia shot at them first.   In Garcia I, we summarized Chab's testimony at the first trial as having claimed that Efren told him the men in the truck fired first.   The retrial was conducted by a different judge.   When deciding that it would give a self-defense instruction, the trial court at the retrial said that based on its reading of Garcia I, it believed Chab would testify accordingly, and was therefore shocked that his testimony did not square with our account in Garcia I. (Garcia I, supra, B190891 [at p. 5].) However, appellants did not impeach Chab with any such testimony during the second trial..  FN8. Garcia also points to the trial court's “shock” that Deputy Chab changed his testimony from the first trial by claiming at the retrial that Efren told him that two men in Eduardo's truck fired back after Garcia shot at them first.   In Garcia I, we summarized Chab's testimony at the first trial as having claimed that Efren told him the men in the truck fired first.   The retrial was conducted by a different judge.   When deciding that it would give a self-defense instruction, the trial court at the retrial said that based on its reading of Garcia I, it believed Chab would testify accordingly, and was therefore shocked that his testimony did not square with our account in Garcia I. (Garcia I, supra, B190891 [at p. 5].) However, appellants did not impeach Chab with any such testimony during the second trial.

FN9. Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 612-613, cited by Marquez, is not helpful.   There, following reversal of grand theft charges by the Court of Appeal, the prosecution filed a new information alleging forgery and presenting a forged document “based on the identical conduct” as the reversed grand theft charges.   This violated Kellett.   The present case does not involve new charges based on the same facts, but a new charged based on different facts:  the February 15 robbery that was not originally charged against Marquez..  FN9. Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 612-613, cited by Marquez, is not helpful.   There, following reversal of grand theft charges by the Court of Appeal, the prosecution filed a new information alleging forgery and presenting a forged document “based on the identical conduct” as the reversed grand theft charges.   This violated Kellett.   The present case does not involve new charges based on the same facts, but a new charged based on different facts:  the February 15 robbery that was not originally charged against Marquez.

FN10. On the merits, we observe that given the limited role Marquez appears to have played in the February 15 incident, a prosecutor filing the information could have reasonably concluded that accomplice liability might be difficult to prove.   On remand, however, a new prosecutor, having reviewed the evidence from the first trial, could have reasonably reached the contrary conclusion.   Marquez's active involvement in the events of February 19 suggests that four days earlier he was acting as a backup to those more actively engaged in the robbery and encouraged or facilitated that robbery with the same state of mind he more clearly demonstrated on February 19..  FN10. On the merits, we observe that given the limited role Marquez appears to have played in the February 15 incident, a prosecutor filing the information could have reasonably concluded that accomplice liability might be difficult to prove.   On remand, however, a new prosecutor, having reviewed the evidence from the first trial, could have reasonably reached the contrary conclusion.   Marquez's active involvement in the events of February 19 suggests that four days earlier he was acting as a backup to those more actively engaged in the robbery and encouraged or facilitated that robbery with the same state of mind he more clearly demonstrated on February 19.

BIGELOW, P. J. FLIER, J.