THE PEOPLE v. EDGAR SALDANA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The jury found defendants Fredrick Luna and John Parra guilty of the first degree murder (Pen.Code, § 187) ¹ of Isaiah Frias on December 17, 2006.   Defendant Edgar Saldana was found guilty of the second degree murder (§ 187) of Frias.   The jury found true the firearm allegations that Parra personally and intentionally used a handgun to kill Frias (§ 12022.53, subd. (d));  a principal personally and intentionally discharged a handgun to do so;  and Saldana personally and intentionally discharged a shotgun (§ 12022.53, subds. (b)-(c)).  The criminal street gang allegations under section 186.22, subdivision (b), were found true as to all defendants.   Luna and Parra received sentences of 50 years to life for the first degree murder, as enhanced by the firearm findings.   Saldana received a term of 40 years to life for the second degree murder as enhanced by the firearm findings.

In his timely appeal, Luna contends:  (1) the trial court had a sua sponte duty to instruct on imperfect self-defense and voluntary manslaughter;  (2) there was constitutionally insufficient evidence to support the criminal street gang finding under section 186.22;  and (3) the admission of prosecution witness Manuel Asebedo's testimony as to statements by Parra-and admitted solely as to Parra-violated Luna's right to due process and right to present a defense.   Parra joins in the first two of Luna's contentions, and Saldana joins in all three.

Saldana further contends there was constitutionally insufficient evidence to support his personal firearm enhancement.   He also contends his other firearm enhancement, based on a principal's firearm usage, was improper because his liability for the murder could have been premised on the natural and probable consequences doctrine, in which case the jury would have found him to have aided and abetted offenses that are not enumerated as predicate crimes under the enhancement statute.

We disagree with all of the contentions and affirm.

STATEMENT OF FACTS

The prosecution case began with testimony from teenagers and children, who provided the background for the shooting incident, although they did not witness the fatal shooting itself.   On December 17, 2006, 14-year-old Bryce, his sister Brittany, and friends, Michael and Joel, were playing in the dirt field next to the Montecito Apartments on Avenue L and 10 th Street in Lancaster.   At approximately 12:30 p.m., while they were shooting BB guns, a green Audi approached the apartment complex and stopped along the dirt field.   A Hispanic male exited the Audi and walked to the corner of a brick wall surrounding the apartment complex.   He looked over the wall and yelled into the complex, toward the carport or garage area.   Three more Hispanic males exited the Audi and jogged towards the brick wall.   The wall was approximately shoulder height.   One of the Hispanic males went inside the complex;  the others stayed behind the wall.

Bryce saw one of the Hispanic males pointing a revolver in his extended arm.   One of the Hispanics ran back to the Audi and told Bryce and his friends, “You should run, you should leave.”   The Hispanic male opened the trunk, removed a “bigger gun,” and ran back to the complex.   As Bryce ran away with his friends, he heard a “big boom.”   Bryce heard someone yell, “I think I got him” or “I think you got him.”   The Audi drove away.

Eleven-year-old Brittany remembered two cars stopping on the dirt road near the Montecito Apartments, one less than a minute after the other.   The first was green and one person exited it from the passenger side.   Two persons exited the second, which was red.   One of them told her, Bryce, and their friends, “I think you guys should leave.”   As Brittany and the others walked away, she heard two gunshots from the corner of the apartment complex.   She ran back to get the boxes for their air guns.   One of three males standing by the apartment wall told her, “You better get out of here.”   All three had firearms-two carried handguns and the other had a longer firearm.   One fired the “big gun” over the wall into the complex, while the other two crouched behind it.   As she ran away, she heard a gunshot and two women scream.   One of the males said, “Did you get ‘em?”   Another said, “I think so.”   One dropped his gun into the grass, but another said, “You idiot.   Don't do that.   Find it.   Hurry up.”   They could not find the firearm and ran back to the car and drove away.   Brittany recalled that the first two gunshots made the same sound.   The third was louder.

Michael recalled a car pulling up to the dirt road and three or four persons getting out and saying, “You guys better get out of here.   Something bad is going to happen.”   One of them had a shotgun, another carried a handgun.   Michael and his friends began to pack up their air guns, while the men went to the wall of the apartment complex.   Michael heard two gunshots, followed by another, louder gunshot.   In between the firing, he heard someone say, “Did you get him?”

Victim Frias's cousin, 14-year-old David, lived at the Montecito Apartments with his mother Esperanza Deleon.²  He went out with Frias to pick up some food for lunch.   The two returned after 12:30 p.m. and went to Frias's apartment.   Deleon was there, along with Frias's girlfriend, Esmerelda Hernandez and children.   David walked to the balcony overlooking the dirt field and told the others that he saw “a guy down there.”   A bearded man wearing a beanie was walking back and forth outside the complex wall.³  A green Audi drove by.   Parra, whom he knew as “Johnny,” was in the passenger seat.   Luna, whom he knew as “Wolfie,” stood next to the man with the beard.   Luna was carrying a shotgun.   He threw it into the car's back seat and hopped over the wall.   David said, “Wolfie and Johnny are here.”

Frias yelled to Luna, “Do you want to get down?”   David understood “get down” to mean a fist fight.   Luna said, “Yes.” Frias told David to get Christopher Flores.   David knew that Frias, Flores, and Luna were members of the Crazy Kings Familia (C.K.F.) gang.   David ran downstairs to Flores's apartment and delivered the message to Flores, who was there with David's grandmother and Frias's sister, Josie.   As David ran back to Frias's apartment, he saw Frias and Flores walking down the stairs.   Luna, who was downstairs, ran toward the bearded male and said, “Dump, fool, dump.”   The bearded male standing on the other side of the wall said, “Shoot ‘em” and fired approximately three gunshots in the direction of Frias.   Frias fell.   Luna and the bearded male fled in a car.

Hernandez, Frias's girlfriend, was an old friend of the three, whom she had met through Frias.   She knew Luna as Wolfie, Parra as Sugar Bear, and Saldana as Crickett.   Frias and Luna were no longer friendly and were not talking to each other.   Hernandez remembered that after Frias and David returned with the food for lunch, David looked out the window and said, “Wolfie's out there.”   Hernandez looked outside and saw Luna downstairs inside the apartment complex.   Luna had a gun in his waistband and called out for Frias.   Frias went to the window and asked, “What's up?”   Luna told Frias to come down to him.   Hernandez put the children into the bedroom, and Frias left the apartment.   As Hernandez went downstairs, she heard two gunshots and saw Frias lying on the ground.   Within seconds, she heard another gunshot, which was louder than the first two, fired from the direction of the dirt field.   She saw Parra outside the complex, but she did not see Deleon go down the stairs at any time during the incident.

Deleon recalled looking out the balcony and seeing a man dressed in black approach the complex wall.   Parra was walking along the wall bordering the field.   He crouched behind and peeked over the wall.   The man in black was standing behind the adjoining wall, pointing a rifle “like a sniper.”   Deleon saw Luna inside the complex walls before the shooting began.   Luna called Frias down to fight.   Three shots were fired.   Luna and Parra, along with the man in black, ran back to the green car.

Frias's sister, Josie, lived in a different apartment within the same complex.   In the months preceding the shooting, Frias and defendants did not get along.   When David ran inside and said that Parra and Luna were there, she believed they were there to hurt her brother because they had previously threatened his life.   When visiting her brother, he received a telephone call and told her, “Crickett, Johnny Boy, and Wolfie” were threatening to kill him.   After hearing David's statement, Josie ran to Frias's apartment and saw her brother and Flores walking out from his apartment toward the complex wall.   She heard “like seven” gunshots.   Hernandez was at the top of the stairs.   Frias turned back and fell.   Josie ran to her sister's apartment and called the 9-1-1 operator.

Flores witnessed the killing.   He was in custody at the time of trial, having been charged with possessing marijuana in a vehicle.   When David arrived at his apartment and told him Parra and Luna were there, Flores put on his shoes and ran to Frias's apartment.   He found Frias at the bottom of the stairwell.   The two walked side by side to the parking lot, where they saw Luna, Parra, and Saldana standing next to each other on the outside of the complex wall.   Luna challenged them to a fight.   Frias and Flores walked to the middle of the parking lot, intending to fight them.   Frias threw up his hands and said, “What's up?”   Parra immediately fired several shots.   Flores and Frias hit the ground and they crawled toward the stairs.   Flores lifted his friend's shirt and saw he had been hit in the chest.   The wound would prove fatal, having punctured his heart.

Flores explained that he and Frias were close friends, and they were acquainted with defendants.   All of them were members of C.K.F., but Frias and Flores were at odds with defendants.   Frias and Flores expressed their disapproval of using and selling drugs, but defendants continued to do both.   Approximately six weeks before the shooting, Flores and Frias had stopped “hanging out” with defendants.   Both were still C.K.F. members at the time of the shooting, but had lost interest in the gang and planned to leave it.   The gang had 10 to 15 members.   Flores had C.K.F. tattoos on his forearms, upper arms, and knuckles.   A few weeks before the shooting, Flores and Frias had been in a confrontation with Parra, his brother, and another C.K.F. member.   Flores and Frias drove to Parra's house and challenged him and his brother to fight.   Parra went inside his house and showed them a gun through the window, but would not return to fight.   In response, Flores, Frias, and David smashed some windows of Parra's house, along with windows of his car.⁴

On cross-examination, Flores admitted that he did not identify Parra as the shooter when he was initially interviewed after the shooting.   It was not until May 2007 that Flores did so.   Flores refused to identify anyone before that because he feared violent retaliation from C.K.F. His family convinced him, however, that telling the police was “the right thing to do.”   Detective Mitchell Robison explained that he had offered to relocate Flores.   To accomplish the relocation, the detective obtained court approval and funding from a state agency.   Flores had to justify his expenses before receiving reimbursement for rent;  he received a per diem amount for incidentals such as food.   Flores began to receive witness protection funds in June and moved to the Valley.   Over two years, he received $16,000 for rent and other expenses.   It was necessary to relocate Flores three times.

An audio recording of Flores's police interview on May 30, 2007, was played to the jury.   In it, Flores stated that he saw Parra “pull a gun out and start shooting.”   Luna was standing next to Parra.   If his statement “got out,” Flores believed he would “be dead.”   He was making the statement out of love for Frias's family.   After the shooting, Flores “walked away” and “turn[ed] his back” on the gang.   C.K.F.'s rule, however, required that members must “get jumped out” in order to leave the gang.   According to Flores, however, there was no one in charge of the gang anymore.

The jury also heard an audio recording of Saldana's custodial interview with Detective Robinson.   The interview took place after David had identified Saldana's photograph and the detective had learned the shotgun found at Saldana's residence had been tied to the expended shotgun casings at the shooting scene.   Saldana waived his Miranda rights.   He admitted being at the murder scene, but would not identify those who accompanied him.   He said he never entered the apartment complex, but was “simply there as a back-up, and with [his] own ․ firearm,” a 12-guage shotgun.   He fired the shotgun twice during the incident, but only at the side wall of the parking lot.   He was driven to the scene in a dark green or blue car.   Prior to the shooting, he was told they “were gonna talk to [Frias] because they're fucking up, and they're disrespecting a friend's house.”   He was there purely in a defensive role, “simply to try to stop the hom[i]es getting hurt.”   The first gunshots had already been fired when Saldana approached the complex.   He fired at the building as an “alert” to allow everyone to run away, not to hurt anyone.   He confirmed there were some kids playing in the field with air guns at the time.

The police investigation of the shooting scene uncovered two empty shotgun shells and a black .38 revolver in the grass just inside the complex wall bordering the field.   Five of its six chambers had ammunition;  the empty one did not have an expended casing inside.   There were footprints in the dirt leading to tire marks.   The tire pattern showed the vehicle had sped away or “peeled out.”   The .22 caliber long rifle bullet recovered from Frias's body could have been fired from a .22 caliber revolver, but not the .38 caliber revolver found at the shooting scene.

Detective Robison observed that an apartment wall inside the complex had impact marks from shotgun pellets.   During the course of his investigation, he received information that Parra and Luna were in Utah. The detective travelled there and found Parra and Luna, who were arrested and placed in custody in the Salt Lake City county jail.   While there, telephone calls made by Luna were recorded.   Those conversations were admitted solely as to Luna. In one conversation, Luna repeatedly asked, “why is Cricket locked up?”   He was aware “[t]hey took Johnny, Johnny's car and shit.”   Luna agreed with the female he was talking to-apparently his mother-that Parra's car was not at the scene, even though the detectives thought it was.   In another conversation, Luna verified that his mother disposed of some of his property at his residence.   In another, he told his mother he was being extradited to Los Angeles.   His mother told him not to be “stressed out” because he “didn't do it.”   When she added, “the truth will come out,” he replied, “Well, I don't fuckin' want the truth to come out, okay?”   Once in custody in Los Angeles, Luna joked that the prosecution “must think ․ Johnny was holding the gun and I was pulling the trigger or something.”

Detective Michael Thompson served a search warrant at Saldana's Lancaster residence on February 14, 2007.   Saldana was present.   He told the detective that he lived in a bedroom that had been converted from a part of the garage.   Inside that bedroom, the detective found Saldana's identification card and a paper with “Crickett” written on it, along with some methamphetamine, marijuana, and a pipe.   Secreted in a small space between the bedroom and the garage ceiling was a loaded Remington 12-gauge shotgun and a box of Remington 12-gauge ammunition, which was the same type as the empty cases found at the shooting scene.   Forensic examination showed the two expended shotgun casings had been fired from that same 12-gauge shotgun.

Detective Robert Gillis testified as the prosecution gang expert to the effect that defendants were C.K.F. members, as were Frias and Flores.   Two C.K.F. members had committed predicate crimes for purposes of the gang enhancement.   The expert opined that the killing of Frias resulted from an internal struggle within C.K.F., in which defendants sought to punish Frias for trying to split up the gang and to warn other potential dissident members that such disloyalty would not be tolerated.

Defense

Luna testified that he had been a C.K.F. member since 1997, when he was 14 years old.   At that time, he lived around the corner from the Frias residence.   From 2002 to 2004, however, he was not active in the gang because he was working full time for Saturn and living in Pacoima.   After losing that job, he returned to Lancaster and the gang.   In January 2006, he was arrested with Frias, Johnny Roman, Deleon, and Saldana.   When he was released, he tried to stop associating with the gang and the Frias brothers, who were the “heart and soul” of C.K.F.

In October 2006, Parra had returned from the hospital with a newborn baby.   Luna and Saldana went to the Parra residence to visit Parra and the baby.   Frias and Flores arrived at the gate.   Frias punched Luna. David Frias and Deleon jumped out of their car.   Frias asked why Luna no longer wanted “to be from the hood․  Why don't you come out here and get jumped out”?   When Parra told them to leave, Frias swore at him and threatened to kill him and his children.   Frias threatened that he “was gonna smoke” Luna. Frias and the others drove away, but returned 15 minutes later.   Deleon or David Frias pointed a gun at the Parra home, and the others began smashing car windows.   From that time, Luna lived in fear.   Frias and the others repeatedly called Saldana, demanding that Luna, Parra, and Saldana go to Frias's house “to get jumped out or else.”   On December 16, Deleon called and ordered them to go to Frias's house that night to “get jumped out.”

Having been threatened with death and fearing an ambush, Luna, Parra, and Saldana decided not to go there that night.   They believed David Frias, the “shot caller” for C.K.F., had ordered them to be shot on sight.   On the following morning, Luna discovered the back window of his car had been smashed again.   Tired and frustrated with the constant threats, Luna called Saldana and suggested they visit Frias and get jumped out of the gang.   They drove to Frias's apartment complex and walked toward his apartment.   Frias appeared on the balcony, waived his hands, and told them he would be “right down.”   Sensing there would be violence, Luna and Saldana told the children playing outside that they should leave.

Luna was carrying a .38 caliber revolver.   Saldana was also armed;  Parra was not.   Luna hoped the matter would be resolved without the need for weapons.   Luna jumped the wall into the complex, intending to meet with Frias to “talk everything out ․ and get jumped out.”   It was Deleon, however, who emerged from the apartment alone and pointing a semiautomatic handgun at Luna. He heard two gunshots fired, followed by some shotgun blasts.   Luna turned and ran back to the car without having fired his handgun, which had fallen out of his pocket.   Luna found out Frias had been shot the following day, when he read it in the newspaper.   Luna had no more contact with C.K.F. He decided to leave town for Utah in early January, after his grandmother's car window was smashed.   On February 12, his father was killed.

DISCUSSION

Jury Instructions

Parra and Saldana join Luna's contention the trial court had a sua sponte duty to instruct on imperfect self-defense and voluntary manslaughter.   At trial, the jury received instructions on self-defense and defense of others, as well as first and second degree murder, based on Luna's testimony that it was Deleon who incited the shooting incident by drawing a handgun and pointing it at him.   None of the defendants requested instructions on imperfect self-defense or voluntary manslaughter.   The jury found Luna and Parra guilty of willful, deliberate, and premeditated first degree murder and Saldana guilty of second degree murder.   Defendants' claim fails because there was no substantial evidence to support either a voluntary manslaughter verdict or an imperfect self-defense finding.

As our Supreme Court recently reiterated in People v. Cruz (2008) 44 Cal.4th 636, 664 (Cruz ):  “In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties.  [Citation.]  The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged.”   Manslaughter is a lesser included offense of murder, which occurs when the unlawful killing is committed without malice.  “Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of passion’ (§ 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment.”  (Cruz, supra, at p. 664.)   The imperfect self-defense doctrine applies “when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury․”  (Ibid.)

The Cruz court explained that “a trial court must instruct on provocation/heat of passion as a theory of manslaughter, if supported by substantial evidence, even when the defendant objects on the basis that the instructions would conflict with his theory of the defense.  [Citation.]  The same sua sponte instructional obligation applies to unreasonable/imperfect self defense, for such is not an affirmative defense, but rather a description of one type or theory of voluntary manslaughter.  [Citation.]  However, the ‘substantial’ evidence required to trigger the duty to instruct on such lesser offenses is not merely ‘any evidence ․ no matter how weak’ [citation], but rather ‘ “evidence from which a jury composed of reasonable [persons] could ․ conclude[ ]” ’ that the lesser offense, but not the greater, was committed.   [Citations.]”  (Cruz, supra, 44 Cal.4th at p. 664;  see also People v. Barton (1995) 12 Cal.4th 186, 201 [the need to instruct sua sponte arises only when there is substantial evidence the defendant killed in unreasonable self-defense, “not when the evidence is ‘minimal and insubstantial’ ”].)

Here, neither the prosecution nor the defense case supported giving the unrequested instructions on voluntary manslaughter and imperfect self-defense.   The prosecution presented overwhelming evidence that defendants planned an armed ambush of Frias, with no evidence that either the victim or Flores was armed and nothing to support the inference that they did anything to put defendants' lives at risk.   Nor was there any prosecution evidence that Deleon was present, much less that she threatened defendants prior to the shooting.   As such, there was no substantial evidence of any victim-instigated sudden quarrel or other provocation sufficient to cause a reasonable person in defendants' situation to act rashly and without deliberation.   Nor was there any prosecution evidence that defendants acted in an actual but unreasonable belief that they were in imminent danger of death or great bodily injury.

By the same token, a reasonable juror who believed Luna's testimony could only have found perfect self-defense.   As the Attorney General points out, People v. Rodriguez (1997) 53 Cal.App.4th 1250 is on point on the question of imperfect self-defense because the witness accounts were “wholly divergent” and “created no middle ground from which the defendant could argue he reasonably misinterpreted the victim's conduct.”  (Id. at p. 1275.)   Accordingly, “there was no substantial evidence warranting an instruction that defendant could in good faith actually believe in the need to defend, but be mistaken in this belief, based on [the victim's] conduct.   Either [the victim] attacked defendant with a knife-an unequivocal act-or he did not.   If he did, defendant acted justifiably in response.   If he did not, no substantial evidence supported the notion defendant had an actual, but mistaken belief, in the need to kill [the victim] in self-defense.”  (Id. at pp. 1275-1276.)

In any event, we conclude that any error in failing to instruct the jury as to the lesser included offense of voluntary manslaughter or on the theory of imperfect self-defense was harmless.  “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 836].   A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art.   VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].”  (People v. Breverman (1998) 19 Cal.4th 142, 178.)

Here, not only did the jury reject self-defense and find Luna and Parra acted with premeditation and deliberation, but it found all defendants acted with malice and committed the shooting on behalf of a criminal street gang.   Those findings, which are inconsistent with voluntary manslaughter and imperfect self-defense, eliminated any reasonable possibility of prejudice.  (People v. Prettyman (1996) 14 Cal.4th 248, 276.)   Similarly, as to Saldana, in rejecting self-defense and defense of others, and finding he acted with malice, the jury's findings were inconsistent with a voluntary manslaughter verdict.   Even if the jury credited his pretrial statements to the effect that he was armed and present merely to defend his gang confederates, it would not have supported voluntary manslaughter or imperfect self-defense.   Saldana stated that after hearing the initial gunshots, he intentionally fired the shotgun to help effect their escape.   There was no evidence that his decision to shoot resulted from a mental state consistent with voluntary manslaughter or imperfect self-defense.  (See Cruz, supra, 44 Cal.4th at p. 665 [jury's special circumstance findings “negate[d] any possibility that defendant was prejudiced from the failure to instruct on provocation/heat of passion or unreasonable self-defense theories of manslaughter”].)

Criminal Street Gang Findings

Parra and Saldana join Luna's contention that there was constitutionally insufficient evidence to support the criminal street gang finding under section 186.22 because the murder resulted from internal dissention and did not benefit the gang, but rather weakened it almost to the point of nonexistence.   As we explain, however, a killing by gang members either to intimidate or eliminate wayward members, as shown by the prosecution case, falls within the section 186.22 criteria because it amounts to criminal conduct by gang members in association with a criminal street gang.

A. Expert Testimony

Detective Gillis had investigated gang-related crimes for 13 years and had done so in the Palmdale area since 2002, when he learned about the C.K.F. gang.   In 2006, C.K.F. had 70 documented members, approximately 20 of whom were on the streets and had admitted membership.   The gang “was involved in a lot of crime back then.”   Members recognized a crown as their symbol and used a special hand signal.

The detective knew all three defendants as admitted C.K.F. members.   He had approximately 20 contacts with Luna, including an arrest and investigation for stealing a car in the year preceding the shooting incident.   Luna, Saldana, another C.K.F. member, along with Deleon and Frias were in the same vehicle at the time of the arrest.   Deleon was carrying a concealed firearm.

The detective also investigated a “rash of drive-by shootings” in which Frias's residence and a rival's residence were “getting shot up on almost a weekly basis.”   Detective Gillis stopped a car containing members of the LC-B3 gang with a loaded shotgun, who admitted they had planned to “shoot up the Frias house.”   In August 2003, there was a fatal shooting at a gas station in which the victim was a member of a rival gang, and C.K.F. members were at the scene.   There were “countless” shooting incidents involving C.K.F. and rivals.   Detective Gillis testified as to two predicate crimes committed by C.K.F. members, a 2006 grand theft automobile offense by Saldana, and a 2005 burglary by Richard “Tiny” Abelar.

In gang culture, a gang member tasked with committing a shooting would have no alternative but to commit the requested act.   Doing so would elevate the member's status within the gang, as well as the level of respect from members of other gangs.   In taking part in a gang-related task or “mission,” it would be typical for the gang to employ multiple members, each having his own role.

Detective Gillis opined that gangs were often comprised of smaller subgroups or “clicks,” which claimed specific territories or had “splintered off” from the larger gang.   Sometimes members of one click would attack or kill members of another click within the same “umbrella” gang.   It would be the “ultimate” act of disrespect for members of one gang to challenge another member of that gang and vandalize the other member's residence.   Such an act would call for an “elevated response” from the victimized party.

With regard to the underlying shooting, the detective was aware that within the C.K.F. gang, “there were two groups that were kind of going in different directions.”   The Frias brothers moved residences and no longer appeared to be involved in criminal activity, while other C.K.F. members continued as before.   Detective Gillis testified that the shooting of Frias would have benefitted defendants by sending a message to rival gangs that “this specific faction within C.K.F.” was so ruthless that it would even kill another C.K.F. member.   It also sent the message to C.K.F. members who might contemplate siding with the Frias brothers that no such “waffling” would be tolerated.

The expert agreed with Flores's assessment that C.K.F. had been “torn apart” by the shooting of Frias.   However, the fact that the shooting had precipitated the gang's breaking up did not change his opinion that the shooting was committed for the benefit of the gang.   The intent was to show how strong C.K.F. would be even without the dissident members;  however, the actual result was the opposite-to weaken, if not destroy, the gang.   It was unlikely the remaining C.K.F. members would permit Frias to “walk away” from the gang.   The expert opined that the killing of Frias resulted from an interDP1⌑B. Analysis

“In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578.)   The federal standard of review is to the same effect:  Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)   The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.  (People v. Stanley (1995) 10 Cal.4th 764, 792.)”  (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)  “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.  [Citation.]  Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.  [Citation.]”  (People v. Young (2005) 34 Cal.4th 1149, 1181.)  “The substantial evidence standard of review applies to section 186.22 gang enhancements.”  (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)

Here, the issue is whether there was substantial evidence that the underlying crimes were “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)   A gang expert's testimony may properly be admitted to prove motive and intent.  (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)   Expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.”  (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew ).)   An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury's common experience.  (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.)

Defendants' primary argument is that the gang enhancement is inapplicable because the evidence showed the killing of Frias did not benefit the gang in any way, but rather all but destroyed it.   However, a “specific intent to benefit the gang is not required.”  (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)   Subdivision (b) of section 186.22 “is satisfied if the crime was ‘committed ․ in association with a[ ] criminal street gang, with the specific intent to promote, further, or assist in ․ criminal conduct by gang members․'  [Citation.]”  (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.)   Consistent with Flores's testimony to the effect that Frias had left the gang and had vandalized Parra's home and car, the expert opined that C.K.F., or whatever faction of it that remained viable, would have felt compelled to retaliate and to kill Frias to save face and to prevent other C.K.F. members from defecting.

“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.”  (People v. Villalobos (2006) 145 Cal.App.4th 310, 322;  see also People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199 [intent to commit robbery in association with other known gang members supported an inference of intent to assist criminal conduct by fellow gang members].)   In any event, Detective Gillis's testimony also supported the reasonable inference that, regardless of the ultimate effect of the shooting, it was committed with the intent of benefitting the gang.

Admission of Prosecution Witness Asebedo's Testimony

Luna contends his federal due process right to present a defense was violated by the admission of prosecution witness Manuel “Bird” Asebedo's testimony that Parra had made statements indicative of Parra's involvement in the shooting.⁵  Saldana seeks to join in the claim, but presents no additional argument.   The claim was forfeited because there was no timely and specific objection to the testimony at trial.   Moreover, the admission of the testimony was harmless as to Luna and Saldana because the trial court instructed that it was admitted solely as to Parra.

At trial, prosecution witness Asebedo admitted being a member of C.K.F.⁶ In testimony offered solely against Parra, Asebedo said he received a telephone call from Parra after Frias was shot, asking if Asebedo “heard what happened.”   Asebedo denied telling Detective Robison that a few days before the shooting, Parra told Asebedo that he was “having problems” with Frias and would “take care of it.”   He told the detective that after the shooting, Parra confirmed that it “had been taken care of”-which Asebedo understood as referring to the murder of Frias.   In a tape recorded interview by Detective Robison, offered only as to Parra, Asebedo told the detective that Parra said “he took care of it.”   In a telephone call a few days before the shooting, Parra told Asebedo, “he would take care of it.”

It is the general rule that challenges to the admissibility of evidence will not be reviewed on appeal unless there has been a timely and specific trial court objection on the ground urged on appeal.  (E.g., People v. Alvarez (1996) 14 Cal.4th 155, 186;  People v. Saunders (1993) 5 Cal.4th 580, 590, quoting United States v. Olano (1993) 507 U.S. 725, 731 [“ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”  [Citation.]’  [Citation.]”].) Luna argues admission of Asebedo's testimony concerning Parra's statements rendered his trial fundamentally unfair because he had “no realistic opportunity” to challenge those statements because Parra chose not to testify.   However, he makes no attempt to explain why the general forfeiture rule does not apply to him.   We do not perceive any basis for disregarding the general rule.

Moreover, given that the trial court instructed that the evidence could be considered only as to Parra, there was no significant likelihood of prejudice as to the other defendants.  “ ‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’  [Citation.]  ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’   [Citations.]”  (United States v. Olano, supra, 507 U.S. at p. 740;  People v. Romo (1975) 14 Cal.3d 189, 195;  People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153.)   As such, Luna and Saldana fail to raise a cognizable claim under the federal due process clause.  “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.”  (People v. Partida (2005) 37 Cal.4th 428, 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70;  Spencer v. Texas (1967) 385 U.S. 554, 563-564;  People v. Falsetta (1999) 21 Cal.4th 903, 913.)   As there is no reason to think the jury considered Asebedo's testimony against Luna and Saldana-and there was overwhelming evidence against both without recourse to that testimony-admission of the belatedly challenged evidence did not render the trial fundamentally unfair.

Luna's reliance on Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers ) is misplaced.   In Chambers, the Supreme Court held that exclusion of defense evidence of a witness's out-of-court confessions under state evidence law as hearsay, combined with the inability of a defendant to cross-examine the prosecution witness regarding his prior confession when the witness had denied complicity on the stand, violated due process by depriving defendant of the right to present a defense.  (Id. at pp. 297-298, 302-303.)   Here, not only does Luna fail to identify any improperly excluded defense evidence, but he fails to explain how lack of cross-examination would have made any difference in light of the fact that the trial court instructed the jury not to consider the evidence against him.

Saldana's Enhancement for Personal Firearm Use

In connection with Saldana's second degree murder conviction, the jury found he personally used and discharged a shotgun within the meaning of section 12022.53, subdivisions (b) and (c).  Saldana contends there was constitutionally insufficient evidence to support those personal firearm enhancements because the prosecution case did not show that he shot at Frias, but merely established that he fired the shotgun to help his comrades escape after Parra fired the fatal shot.   According to Saldana, the murder was complete before he fired the shotgun, making defendant effectively a mere accessory after the fact.   We disagree.

“We review the sufficiency of the evidence to support the enhancement according to accepted rules of appellate review:  we view the record in the light most favorable to the prosecution and may not reverse the judgment if any rational trier of fact could have found the essential elements of the enhancement beyond a reasonable doubt.”  (People v. Frausto (2009) 180 Cal.App.4th 890, 897.)  “The stated legislative purpose of section 12022.53 is to impose progressively longer prison sentences on felons who use firearms in the commission of enumerated crimes.  [Citation.]  It is to be construed expansively, not narrowly.”  (Id. at p. 898.)

“The firearm enhancement statutes, section 12022.53, subdivisions (b) and (c), require that the defendant personally use or discharge a firearm in the commission of the underlying felony.”  (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058 (Carrasco ).)   As our colleagues in Division Six explain:  “ ‘A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.’  [Citation.]  The enhancement is not limited ‘to situations where the gun is pointed at the victim․’  [Citation.]   Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime.  [Citations.]”  (Id. at p. 1059.)   It follows that “ ‘when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure․’  [Citation.]”  (Ibid.)

Here, as the Attorney General points out, not only did Saldana admit that he used the shotgun to protect his fellow gang members, but Deleon testified that just prior to the shooting, the “man in black” was standing behind the apartment complex wall, pointing a rifle “like a sniper.”   Additionally, according to Brittany, all three assailants had firearms, and the one with the “big gun” fired it over the wall into the complex, while the other two crouched behind it.   Thus, with regard to the subdivision (b) finding that Saldana used the shotgun in commission of the murder, the jury had strong and credible evidence that Saldana intentionally displayed his shotgun in a menacing manner to facilitate the murder of Frias.  (Carrasco, supra, 137 Cal.App.4th at pp. 1058-1060.)

Citing People v. Esquivel (1994) 28 Cal.App.4th 1386 (Esquivel ), Saldana argues he could not have discharged the shotgun in the commission of the murder because all the evidence supported his testimony that he fired the shotgun after the fatal shots had been fired by a codefendant.   In Esquivel, however, the court concluded that where the defendant took personal property from the victim after the victim's death and before the defendant became an aider and abettor, the defendant could not be adjudged “retroactively culpable for the killing.”  (Id. at p. 1397.)   The underlying case is entirely distinguishable from Esquivel because the evidence supported the reasonable inference that Saldana knowingly worked in concert with codefendants before the shooting to ambush the unarmed victim.   Further, there was reliable evidence that Saldana fired the shotgun within a few seconds of the fatal gunshots in order to help himself and the others escape.

Not only were the shotgun blasts fired in such close temporal proximity as to support the almost inescapable inference that they were part of the same fatal transaction, but it appears highly unlikely that Frias died before Saldana commenced firing.   Hernandez testified that the shotgun blast occurred less than five seconds after the initial shots, and that Frias was able to tell her that he had been “hit.”   Flores testified that the victim and he crawled back to the stairs after Parra fired the handgun.   According to the medical examiner, Frias could have survived for “a few minutes” after receiving the fatal wound.  “In a simple murder case, i.e. not involving the felony-murder rule, a person may aid and abet a murder after the fatal blow is struck as long as the aiding and abetting occurs before the victim dies.”  (People v. Celis (2006) 141 Cal.App.4th 466, 473-474;  cf., People v. Frausto, supra, 180 Cal.App.4th at p. 902 [“a firearm is discharged ‘in the commission of’ a felony within the meaning of section 12022.53[, subd.] (d) if the underlying felony and the discharge of the firearm are part of one continuous transaction, including flight after the felony to a place of temporary safety”].)

Saldana's Enhancement Based on a Principal's Firearm Use

As part of its second degree murder verdict, the jury found a principal in the murder personally and intentionally discharged a handgun to proximately cause Frias's death, within the meaning of section 12022.53, subdivisions (b) through (e), which resulted in an additional sentence of 25 years to life.   The firearm enhancement statute applies to a variety of enumerated offenses, including murder. (§ 12022.53, subd. (a).)  Subdivision (e) provides that the “enhancements provided in this section shall apply to any person who is a principal in the commission of an offense.”   Further, the enhancements can apply only if, as was the case here, the gang allegation under section 186.22 was pled and proved in conjunction with the enumerated predicate crimes.   Saldana's jury was instructed on alternative theories of liability for the murder-either direct liability as an aider and abettor of the murder or, under the natural and probable consequences doctrine, based on aiding and abetting the target offenses of disturbing the peace or assault.

It is Saldana's contention that a finding on the firearm enhancement based on the latter theory would have been improper because the jury was required to find him to be a principal as to a crime listed as a predicate offense under subdivision (a) of the firearm enhancement statute, and neither misdemeanor target offense is among those enumerated.   The argument fails because under the well established law of this state, the natural and probable consequences doctrine serves to make a person liable as a principal for the nontarget crime as long as it is a natural and probable consequence of the intended crime.

“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)”  (People v. Prettyman, supra, 14 Cal.4th at p. 259.)   Moreover, “ ‘[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.   The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.  [Citation.]’  [Citation.]   Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’  [Citation.]”  (People v. Medina (2009) 46 Cal.4th 913, 920.)

It is well established that an aider and abettor “is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.”  (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5;  People v. McCoy (2001) 25 Cal.4th 1111, 1117 [“if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault”];  People v. Price (1991) 1 Cal.4th 324, 442, fn. omitted [“a person who ․ aids and abets another in the commission of an offense is guilty not only of that offense but also of any reasonably foreseeable offense committed by a coconspirator or by the person aided and abetted”].)   That is, “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.”  (People v. Croy, supra, at p. 12, fn. 5.)

Saldana nevertheless argues, as a matter of statutory construction, the plain language of section 12022.53 limits its application to those who aid and abet an offense enumerated in subdivision (a), not to those whose liability is “vicarious” under the natural and probable consequences doctrine.  “The legislative intent behind section 12022.53 is clear:  ‘The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.’  (Stats.1997, ch. 503, § 1.) With respect to aiders and abettors, one Court of Appeal has observed that section 12022.53, subdivision (e)(1), ‘is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang.’   (People v. Gonzales [ (2001) ] 87 Cal.App.4th [1,] 15 [ (Gonzales ) ].)   This subdivision provides a ‘clear expression of legislative intent’ (ibid.) to ‘severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang.   It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms.’  (Id. at p. 19.)”  (People v. Garcia (2002) 28 Cal.4th 1166, 1172 (Garcia ).)

Saldana misreads both Gonzales and Garcia in asserting those decisions require a finding of aiding and abetting as to the enumerated offense without regard to the natural and probable consequences doctrine.   To the contrary, in Gonzales, the court found “[s]ection 12022.53, subdivision (e) is precisely the clear expression of legislative intent to extend an enhanced penalty to aiders and abettors,” and “the only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.”   (Gonzales, supra, 87 Cal.App.4th at p. 15.)   Saldana's reading would be “contrary to aider and abettor jurisprudence in California.”  (Ibid.) Nor did Garcia hold or imply that application of longstanding aiding and abetting jurisprudence-including the natural and probable consequences doctrine-is somehow proscribed or suspended when applying section 12022.53, subdivisions (d) and (e).   Rather, the Garcia court addressed the issue of whether application of the enhancement to an aider and abettor who was a principal in the offense required the prosecution to “plead and prove the conviction of the offense by the principal who intentionally and personally discharged a firearm”-and concluded the statute imposed no such obligation.   (Garcia, supra, 28 Cal.4th at p. 1174.)   Nothing in the opinion suggested the enhancement could be applied only if the aider and abettor intended to aid in the commission of a murder.⁷

DISPOSITION

The judgments are affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

FERNS, J.^*

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. Deleon had been a member of the San Fernando, or “San Fer,” gang.   Her moniker was “Evil.” She testified that she left the gang nine years before the incident..  FN2. Deleon had been a member of the San Fernando, or “San Fer,” gang.   Her moniker was “Evil.” She testified that she left the gang nine years before the incident.

FN3. David testified that the bearded male was not Saldana.   Prior to trial, however, he chose Saldana's photograph out of a “six pack” because he “[l]ooked like the shooter.”.  FN3. David testified that the bearded male was not Saldana.   Prior to trial, however, he chose Saldana's photograph out of a “six pack” because he “[l]ooked like the shooter.”

FN4. Parra's defense case consisted of testimony by investigator Alan Rush concerning his interview of Flores, who admitted vandalizing Luna's car four to five weeks before the shooting incident.   Around the same time, Flores and Frias challenged Parra and Luna to a fight, which did not occur.   On cross-examination, the investigator recalled that Flores also said that it was Parra who shot Frias, using a .22 caliber hand gun..  FN4. Parra's defense case consisted of testimony by investigator Alan Rush concerning his interview of Flores, who admitted vandalizing Luna's car four to five weeks before the shooting incident.   Around the same time, Flores and Frias challenged Parra and Luna to a fight, which did not occur.   On cross-examination, the investigator recalled that Flores also said that it was Parra who shot Frias, using a .22 caliber hand gun.

FN5. Luna does not purport to raise a claim under Crawford v. Washington (2004) 541 U.S. 36 or under the Aranda/Bruton line of cases (see People v. Aranda (1965) 63 Cal.2d 518;  Bruton v. United States (1968) 391 U.S. 123)..  FN5. Luna does not purport to raise a claim under Crawford v. Washington (2004) 541 U.S. 36 or under the Aranda/Bruton line of cases (see People v. Aranda (1965) 63 Cal.2d 518;  Bruton v. United States (1968) 391 U.S. 123).

FN6. He also testified that C.K.F. existed at the time of the trial and had approximately 50 members..  FN6. He also testified that C.K.F. existed at the time of the trial and had approximately 50 members.

FN7. People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 15-17 provides no support for Saldana's position.   There, the high court declined to give collateral estoppel effect in favor of a non-shooter coconspirator based on a shooter's acquittal of felony murder and conviction of voluntary manslaughter, even assuming the coconspirator's liability would be vicarious under the natural and probable consequences doctrine..  FN7. People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 15-17 provides no support for Saldana's position.   There, the high court declined to give collateral estoppel effect in favor of a non-shooter coconspirator based on a shooter's acquittal of felony murder and conviction of voluntary manslaughter, even assuming the coconspirator's liability would be vicarious under the natural and probable consequences doctrine.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.