People v. Campaz

Full title: THE PEOPLE, Plaintiff and Respondent, v. CARLOS TOMAS CAMPAZ, JR.…

Court: California Court of Appeals, Third District, Sacramento

Date published: Apr 27, 2010

C056880, C058484 (Cal. Ct. App. Apr. 27, 2010)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. CARLOS TOMAS CAMPAZ, JR., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JOHN DOUGLAS WHITE, Defendant and Appellant. C056880, C058484 California Court of Appeal, Third District, Sacramento April 27, 2010

NOT TO BE PUBLISHED

Super. Ct. No. 04F07255

SIMS, Acting P. J.

In these separate appeals consolidated for oral argument and disposition, defendant Carlos Tomas Campaz, Jr., (Campaz) appeals following his conviction for first degree murder of Jerimi Millican (the victim), and defendant John Douglas White (White) appeals following his conviction in a second trial for second degree murder of the same victim. (Pen. Code, § 187; undesignated statutory references are to the Penal Code.) Campaz contends the jury instructions impermissibly allowed a conviction on a “misdemeanor-murder” theory that he aided and abetted a simple assault that resulted in murder. White, who was convicted in a second trial after his separate jury in the first trial deadlocked, claims evidentiary and instructional error and contends the trial court erred in denying his request for jurors’ identifying information.

We shall affirm the judgments as to both Campaz and White.

PROCEDURAL BACKGROUND

Campaz, White, and Robert Moreno Montoya (who did not appeal) were charged with murder, with allegations of personal use of a knife and lying in wait. A joint trial was held with three juries. Theories of culpability included aiding/abetting first or second degree murder and aiding/abetting a target crime of simple assault, assault with a deadly weapon, or assault likely to cause great bodily injury, where murder was the natural and probable consequence.

Montoya’s jury found Montoya not guilty of first degree murder but guilty of second degree murder and found he personally used a knife.

Campaz’s jury found Campaz guilty of first degree murder but found not true the allegations of personal use of a knife and lying in wait. The court denied a motion for new trial and sentenced Campaz to an indeterminate term of 25 years to life.

White’s jury deadlocked, and the court declared a mistrial. In the retrial, the prosecution dropped the “natural and probable consequence” theory; Montoya testified as a prosecution witness; and the jury found White not guilty of first degree murder but guilty of second degree murder, with a finding that he did not personally use a knife. The trial court denied a defense petition for access to juror identifying information and sentenced White to a term of 15 years to life.

Different evidence was adduced in the two trials, and we set forth the evidence separately for each defendant.

I. Campaz’s Appeal

A. Facts

Evidence adduced at the trial in which Campaz was convicted included the following:

On August 5, 2004, around 8:00 a.m., park maintenance workers discovered the victim’s body in a restroom at Gardenland Park near Northgate Boulevard in Sacramento. The cause of death was multiple stab wounds; the time of death was estimated at 5:00 a.m.

Marie Ceragioli, who was friendly with Campaz and performed home improvement work at White’s house, testified that a few days after the killing, she was at a restaurant with Campaz when he admitted his participation. Campaz said, “Doug [White] got me twenty-five to life. I think I’m in some serious trouble, and I’m like what’s going on.”

Ceragioli testified at trial that Campaz told her the following: White planned to beat the victim “badly” for raping White’s sister when White had been too young to do anything about it, and Campaz went to “back him up” to stop anyone from interfering.¹ Campaz and White waited at the park. Montoya brought the victim there on the pretext of a drug buy. They went into the park bathroom, where White started screaming and “just going crazy,” “whaling on [the victim]... in a rage” with two knives, one of which had spikes. Campaz was in shock; he did not expect this and had no idea White had a knife. The victim tried to run out of the bathroom, but Campaz panicked and pushed the victim back in. (Although there was some evidence that Campaz, in recounting the incident to Ceragioli, displayed a stabbing gesture rather than a pushing gesture, the jury found Campaz did not personally use a knife.) The victim fell, and White continued the attack. Campaz told White to stop because the victim was dying. In later conversations with Ceragioli, Campaz changed details, e.g., he said Montoya also stabbed the victim and the planned beating was over drug debts rather than rape. At some point, Campaz and White told Ceragioli they took money and drugs from the victim to make it look like a drug transaction. White threw the weapons in the river. They tried but failed to burn their escape vehicle -- a stolen truck in White’s possession. (The police found White’s blood and the victim’s blood in the truck.)

1 Aiding/abetting liability may be predicated on being present to serve as a lookout or to give warning of anyone seeking to interfere. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-744.)

Ceragioli called the crime “tip line,” believing she could stay anonymous, but a police detective contacted her. She told the detective on August 20, 2004, that Campaz said the plan was to murder the victim. At the preliminary hearing, Ceragioli said Campaz thought the plan was to beat the victim, not murder him. At trial, Ceragioli said Campaz said the plan was to beat the victim badly enough to hospitalize him.

At trial, Ceragioli was asked about her preliminary hearing testimony, where she said the plan according to Campaz was to “beat” the victim, but she did not say “badly.” She testified at trial that the amount of information was overwhelming, and “you guys were very vague at prelim.” She said Campaz said the plan was to beat the victim “badly” and “put him in the hospital.”

At trial, Ceragioli acknowledged she used methamphetamine during some of the conversations with Campaz and White. She was asked about her preliminary hearing testimony, where at one point she invoked the Fifth Amendment to a question about her own drug use but at another point answered “no” to a question, “have you in fact used methamphetamine yourself.” At trial, she said she interpreted this latter question as referring to the specific time of the murder.

Ceragioli did construction work at White’s house even after learning of the killing. White said he stepped over the victim to “take a piss,” and White bragged about getting an uninvolved acquaintance, Anthony Martinez, to confess on audiotape. Ceragioli testified she felt it was her duty to keep returning to the home of someone she believed to be a killer, because she used to work in the victim witness program in the San Diego District Attorney’s office.

Campaz always carried a distinctive Protech pocket knife given to him by Ceragioli. After the killing, he gave it to her, and she turned it over to the police. It had a small pinkish stain, which did not test positive as blood but was more likely rust.

Campaz eventually agreed to turn himself in to the police, and Ceragioli made the call.

In cross-examination of Ceragioli, the Campaz defense elicited that Ceragioli was angry with her ex-lover, Geri Quintana, for supporting Campaz, and left threatening phone messages. Ceragioli received a $500 reward from the police but also had to relocate due to threats she received warning her not to testify against White. Ceragioli admitted prior hospitalizations for mental health problems.

Martinez testified he and others consumed drugs at White’s house the night of the killing. Martinez saw the victim leave the house with Montoya; Campaz and White left with them or a few minutes later. Martinez was awakened when the three later returned without the victim. Campaz appeared nervous and scared. White left briefly, and Campaz and Montoya argued over who killed the victim. White returned and said he killed the victim for raping White’s sister, and he was going to kill Martinez so he could not snitch. White told Campaz to stab Martinez, but Campaz said no, Martinez was like a brother to him. White held a machete to Martinez’s throat and forced him to say, “I killed Jerimi” into a tape recorder.

Michael Gardner testified he was sleeping at White’s house the night in question, was awakened and saw White, Campaz and Montoya on the roof, and later overheard a conversation between Campaz and Montoya, in which Gardner believes he heard Montoya say something to the effect “did we hurt him?” or “did we kill him?” After a couple of seconds or minutes, Campaz said something like “keep quiet” or “don’t tell [White].”

Timothy Chacon testified White phoned him around 6:00 a.m. on August 5, 2004, needing a ride. White was upset and crying. He said, “I” and “we” “fucked up.” Chacon drove to the levee. White got out of the car. Chacon saw a splash in the water. Days later, White was on drugs and said he killed someone who owed money for methamphetamine, but Chacon did not believe him.

In the first trial (wherein Campaz and Montoya were convicted but White’s jury deadlocked), White testified in his own defense, in front of all three juries. White denied any animosity toward the victim at the time of the killing. White was previously upset with the victim for failing to return a truck and money borrowed from White. The victim later returned the truck and money, and everything was fine between them. White’s sister was raped years earlier, but not by the victim, and White denied accusing the victim of rape.

On August 4, 2004, White spent much of the day consuming marijuana and methamphetamine with Campaz, who arrived already “wired.” They continued the party that night with Montoya, the victim, and others. They consumed alcohol and smoked marijuana and methamphetamine. The victim and Montoya borrowed from White a blue pickup truck (stolen by someone else) and went to the park to buy drugs from Montoya’s cousin. Later, White and Campaz went to the park in a friend’s red pickup truck. They found Montoya and the victim sitting on a bench. White went into the park bathroom to urinate and then joined the others outside. Because it was windy, Montoya, Campaz, and the victim went into the bathroom to smoke some methamphetamine. White stayed outside and smoked marijuana. Campaz came out, saying, “Let’s get the fuck out of here.” Montoya then came out with a blank look on his face. White looked into the bathroom and saw the victim face down on the ground.

White, Campaz, and Montoya drove in White’s truck to the red pickup, but they saw a police car and kept going. Campaz said, “Man we fucked up. We fucked up.” They drove to White’s house, but the other party people were still there, sleeping, so White had Campaz and Montoya get up on the roof and remove their bloody clothes. White testified he was afraid of Campaz from having been threatened by him several weeks earlier, when White saw Campaz stab a friend, Fernando Perez, for allegedly stealing a Play Station.

By now, it was daylight. White called a friend, Tim Chacon, for help. Chacon drove White to the river, where White threw two knives, a wallet, a key ring and a cell phone off a bridge. White wrapped the bloody clothes in a blanket and set fire to it. White testified he told Chacon, “I fucked up” but did not say he hurt anyone.

The next day, White briefly “whal[ed] on” Anthony Martinez over a suspected theft. White said it was Campaz who ordered Martinez to say into a tape recorder operated by White, “I, Anthony Martinez, killed Jerimi Millican at Gardenland Park.” White said Ceragioli told him he better not snitch on Campaz. White testified he was afraid of Campaz because White thought Campaz was a member of the Norteño street gang. White admitted to being a Norteño associate while in jail during the trial.

White admitted he lied in his statement to the police.

Tomas Wayne testified he loaned his red pickup truck to his friend, Campaz. Several days after the killing, Wayne discovered his truck near the park and called the Crime Alert tip line. Wayne reported that Montoya said he was being blamed for the killing but all he did was drop the victim off at the park. Wayne previously saw White showing off a knife with spikes.

Campaz did not testify but put on a defense case that included testimony of Dr. John Wicks, an expert in clinical psychology, in an attempt to impeach Ceragioli. Dr. Wicks reviewed Ceragioli’s mental health records, which revealed a diagnosis of borderline personality disorder with features consistent with methamphetamine abuse.

Dr. Wicks testified that persons with severe personality disorders tend to have amorphous memories and distort information, particularly when stressed. Threatening phone messages left by Ceragioli are consistent with an ongoing personality disorder. Methamphetamine abuse can also cause brain damage affecting memory function, exacerbating the problems related to the personality disorder.

As indicated, Campaz’s jury found Campaz guilty of first degree murder but found “Not True” the two allegations of Campaz (1) lying in wait and (2) personally using a deadly and dangerous weapon, to wit, a knife. Montoya’s jury found Montoya guilty of second degree murder, with personal use of a knife. White’s jury deadlocked, and the court declared a mistrial.

B. Discussion - Campaz’s Appeal

Campaz lists 10 assignments of error, but several relate to his main theme that murder cannot be a natural and probable consequence of aiding/abetting a simple assault, and the possibility that he was convicted on such a theory compels reversal. Campaz also argues (1) an aider/abettor cannot be convicted of first degree murder where the actual perpetrator was convicted of second degree murder; (2) jury instructions on voluntary intoxication were erroneous or inadequate; (3) cumulative error warrants reversal; and (4) this court should exercise its discretion to reduce his first degree murder conviction to second degree murder. We shall affirm the judgment.

1. Murder as Consequence of Aiding Simple Assault

Under separate headings, Campaz argues (a) there is no “misdemeanor-murder” rule in California; (b) the natural and probable consequence doctrine cannot legally serve as a substitute for a jury finding he acted with malice in a prosecution for murder based on aiding/abetting a misdemeanor assault; (c) error in instructing the jury that murder may be the natural and probable consequence of aiding/abetting simple assault (over defense objection) requires reversal; (d) the jury instruction defining liability for murder based on a natural and probable consequence theory erroneously permitted the jury to base a conviction for murder on findings that Campaz aided only a simple assault without finding that murder was a natural and probable consequence of such assault; and (e) predicating murder liability on aiding/abetting assaultive crimes under the natural and probable consequences doctrine violates People v. Ireland (1969) 70 Cal.2d 522 (Ireland), which held that when the underlying felony is assaultive, the felony assault merges with the homicide and cannot be the basis for a felony-murder instruction.

We shall conclude that murder may be found to be a natural and probable consequence of aiding/abetting a simple assault but, even assuming for the sake of argument it cannot, any error was harmless in this case because, regardless whether Campaz knew of the knives, the planned assault was to inflict great bodily injury and therefore was not a “simple” assault. (§ 240 [“assault is an unlawful attempt, coupled with a present ability, to commit a violent injury² on the person of another”; § 245 [separate offense for assault with a deadly weapon or “by any means of force likely to produce great bodily injury”].)

2 “Violent injury” in the simple assault statute is not synonymous with great bodily injury but includes any wrongful act committed by means of physical force, even though only the feelings of the victim are injured by the act. (People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.)

a. Background

Ceragioli’s trial testimony indicated that Campaz at various times characterized the target crime as murder or as assault with force likely to inflict great bodily injury on the victim. Thus, as to a target crime of assault, Ceragioli testified that, at the restaurant, “He [Campaz] then tells me when the kid walks into the bathroom, [White] and [Campaz] follow him pretty closely behind him into the bathroom; where -- Carlos [Campaz] thought that -- he told me he thought that Doug [White] was just supposed to beat this kid up pretty badly, teach him a lesson for the fact he raped his sister. That was the story line Carlos understood when he was telling me.” Ceragioli admitted she did not use the word “badly” at the preliminary hearing but said the lawyers were more vague at the preliminary hearing.

Despite the absence of evidence of a mere simple assault as the target crime, simple assault was included in the jury instructions. Thus, the jury instruction on natural and probable consequences stated:

“One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.

“In order to find the defendant guilty of the crime of murder based upon a natural and probable consequences theory, you must be satisfied beyond a reasonable doubt that:

“1. The defendant is guilty of the crime of assault,³ assault with force likely to produce great bodily injury and/or assault with a deadly weapon.

3 “Simple assault” was defined for the jury as “an act that by its nature would directly and probably result in the application of force to a person.” Section 240 says assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

“2. During the commission of any of the above crimes, the crime of murder was committed;

“AND

“3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault, assault with force likely to produce great bodily injury and/or assault with a deadly weapon.

“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the assault, assault with force likely to produce great bodily injury and/or assault with a deadly weapon, then the commission of murder was not a natural and probable consequence of those crimes.

“To decide whether the crime of murder, assault, assault with force likely to produce great bodily injury and/or assault with a dangerous weapon were committed, please refer to the separate instructions defining those crimes.⁴

4 A jury instruction titled, “Simple Assault” said, “To prove that the defendant is guilty of assault, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force to a person.”

“The defendant is guilty of murder if you decide that the defendant aided and abetted assault, assault with force likely to produce great bodily injury or assault with a deadly weapon and that murder was the natural and probable consequence of one of these crimes. However, you do not need to agree about which of these three crimes the defendant aided and abetted.” (Italics added; original italics omitted.)

In closing argument to the jury, the prosecutor argued murder was the target crime. The defense argued Campaz was an innocent bystander; White admitted he would not need Campaz’s help to beat up the victim; even if Campaz knew about a planned assault, he did not know about the knives; and death was not a natural and probable consequence of a planned assault. In rebuttal, the prosecutor argued murder was the target crime, but if the jury believed the target crime was an assault, assault with a deadly weapon, or assault to commit great bodily injury, then defendant was guilty of second degree murder.

During jury deliberations, Campaz’s jury in Request No. 6 asked for:

“1. Clarification of Campaz/defendants culpability/accountability for perpetrator’s act.

“2. Clarification of Murder with Malice Aforethought.

“3. If we agree that one of the defendants met the requirements for 1st degree murder and we agree that our defendant met the requirements of P.C. [sic; CALCRIM] 400 - Aiding & Abetting, then does the law require us to find the defendant quilty of 1st degree murder as well?”

The trial court, after discussing the matter with counsel in chambers, responded to the jury:

“A person may be guilty of murder in three ways.

“First, if you find that he or she directly and actively committed the act constituting the murder.

“Secondly, if you find that he or she did not directly and actively commit the act constituting the murder but you find the following:

“1. That a perpetrator committed murder;

“2. That the defendant knew that the perpetrator intended to commit murder;

“3. That before or during the commission of the murder, the defendant intended to aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of murder;

“AND

“4. That the defendant’s words or conduct did in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of murder.

“If you find all of these have been proven beyond a reasonable doubt, then the defendant is equally guilty of the crime of murder. If you find that any one of these has not been proven beyond a reasonable doubt, then you must find the defendant not guilty of murder as an aider and abettor.

“Lastly, if you find that he or she did not directly and actively commit the act constituting the murder but you find the following:

“1. That the crime of assault, assault with force likely to produce great bodily injury and/or assault with a deadly weapon was committed;

“2. That the defendant aided and abetted the perpetrator in the commission of one of the above crimes;

“3. That during the commission of one of the above crimes, the crime of murder was committed;

“AND

“4. The crime of murder was a natural and probable consequence of the commission of the crime(s) originally aided and abetted.

“If you find all of these have been proven beyond a reasonable doubt, then the defendant is equally guilty of the crime of murder. If you find that any one of these has not been proven beyond a reasonable doubt, then you must find the defendant not guilty of murder under the natural and probable consequence doctrine.

“[Court referred to specified pages of instruction packet and gave further instructions on malice modeled after the CALJIC rather than the CALCRIM instruction previously given.⁵

5 “‘Malice aforethought’ is a state of mind that must exist in the mind of the perpetrator before the act that causes death is committed. Under the law malice may be ‘express’ or ‘implied.’ [¶] Express malice exists when the evidence convinces you beyond a reasonable doubt that before the act causing the victim’s death, the perpetrator manifested by word or conduct, a deliberate intent to unlawfully kill another person. [¶] Implied malice exists when the evidence convinces you beyond a reasonable doubt that the following have been proven: [¶] 1. That the defendant intentionally committed an act; [¶] 2. That the natural consequences of the act were dangerous to human life; [¶] 3. That at the time the defendant acted he knew his act was dangerous to human life; [¶] AND [¶] 4. That he deliberately acted with conscious disregard for human life.”

“Whether you find a person guilty of murder based upon aiding and abetting depends upon which crime you find the person aided and abetted. If you find a person aided and abetted murder, as those crimes are defined, that person is equally guilty of murder. If you find that a person aided and abetted assault, assault with force likely to produce great bodily injury, and/or assault with a deadly weapon, as those crimes are defined, but the crime of murder was committed, you must determine whether or not murder was the natural and probable consequence of the crime originally aided and abetted.”

The court then allowed defense counsel to state his objections on the record. He objected that the original instruction on malice required proof beyond a reasonable doubt of intent to kill, whereas the re-instruction said malice could be found if the perpetrator manifested by word or conduct a deliberate intent to kill. Campaz argued this change lightened the prosecution’s burden. The trial court disagreed. Campaz’s second objection was that the court, in instructing on guilt of murder under a natural and probable consequence theory, declined Campaz’s request to add instruction on guilt of voluntary and involuntary manslaughter under a natural and probable consequence theory. The trial court explained it omitted manslaughter because the jury’s question specifically asked about murder. Campaz’s attorney confirmed the omission of any distinction between first and second degree murder in the “natural and probable consequence” re-instruction was with his consent.

An hour later, Campaz’s jury submitted Request No. 7: “Do we, after making a decision about the defendant (specifically [sic] equally guilty of the crime of assault that resulted in murder) need to then determine the guilt of the perpetrator? That is, do we determine if the perpetrator committed murder, and to what degree? and this then decision [sic] applies to the defendant.”

After discussion with counsel, the trial court responded:

“In order to find the defendant guilty as an aider and abettor or under the natural and probable consequence doctrine, you must determine what crime, if any, the defendant himself intended to aid and abet.

“If you find that it has been proven that the defendant intended to aid and abet an unlawful killing, and you find that an unlawful killing occurred, you must determine whether it has been proven, beyond a reasonable doubt that the defendant himself, at the time he aided and abetted had the state of mind required for first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter.

“If you find that it has not been proven that the defendant intended to aid and abet an unlawful killing, but you find that it has been proven that he intended to aid and abet assault, assault with force likely to produce great bodily injury and/or assault with a deadly weapon, and you find that a perpetrator committed an unlawful killing, you must then determine whether or not the crimes of first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter were a natural and probable consequence of the assault, assault with force likely to produce great bodily injury, and/or assault with a deadly weapon.”

That same day, the jury returned its verdict finding Campaz guilty of first degree murder but finding he did not personally use a knife and did not lie in wait.

b. Analysis

“‘An aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime.’ (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).)... ‘Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.”’ (Ibid.) When the natural and probable consequences doctrine applies, 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, italics added (Croy).) Thus... ‘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.’ (McCoy, at p. 1117, citing People v. Prettyman (1996) 14 Cal.4th 248, 260, 267, italics added....” (People v. Caesar (2008) 167 Cal.App.4th 1050, 1057, [intended crime was assault and battery]; see also, People v. Medina (2009) 46 Cal.4th 913 (Medina).)

Campaz claims the instructions allowed the jury to convict him of first degree murder on a “legally inadequate” theory that he aided and abetted a simple assault. Citing People v. Guiton (1993) 4 Cal.4th 1116, Campaz argues the error requires reversal because there is no basis in the record for concluding that the verdict was actually based on one of three legally valid grounds -- (1) aiding and abetting murder, (2) aiding and abetting assault with a deadly weapon with death a natural and probable consequence, or (3) aiding and abetting assault by force likely to cause great bodily injury with death a natural and probable consequence.⁶

6 The Attorney General failed to address this prejudice argument, and we therefore had to request supplemental briefing on the issue.

We shall conclude there was no legally inadequate theory in this case and, to the extent a factually inadequate theory was presented, we presume the jury rejected it. Moreover, even assuming instructional error occurred, the error was harmless.

i. Merger

We first dispatch Campaz’s argument that a murder conviction based on aiding and abetting an assault violates the merger rule of Ireland, supra, 70 Cal.2d 522, which held felony assault merges with a homicide and cannot form the basis for felony murder. Campaz cites People v. Chun (2009) 45 Cal.4th 1172, which held that all assaultive-type crimes (determined by the elements, not the facts), such as shooting at an occupied vehicle in violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. However, Chun did not involve a theory of aiding and abetting under the natural and probable consequence doctrine.

In People v. Karapetyan (2006) 140 Cal.App.4th 1172 (Karapetyan), this court held the natural and probable consequences doctrine does not improperly merge all assaults into the felony murder rule. There, a defendant argued that a finding of murder based on aiding/abetting an assault was really just felony murder, barred by Ireland’s merger rule (Ireland, supra, 70 Cal.2d 522). (Karapetyan, supra, 140 Cal.App.4th at p. 1177.) This court disagreed. The opinion said the argument would be viable if the law stated that anyone who aided/abetted an assault that ended in death would be guilty of murder, whether or not the death was a natural and probable consequence of the assault. (Id. at p. 1178.) That would be a merged felony murder based on assault and would be prohibited by Ireland. However, the opinion said, “the natural and probable consequences doctrine operates independently of the second degree felony-murder rule. (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) The natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. Rather, it is a theory of liability for murder that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. [Citation.]

“‘An aider and abettor’s derivative liability for a principal’s criminal act has two distinct prongs: First, the aider and abettor is liable for the particular crime that to his knowledge his confederates are contemplating. Second, the aider and abettor is also liable for the natural and probable consequences of any criminal act he knowingly and intentionally aids and abets.... [¶]... The law’s policy is simply to extend criminal liability to one who knowingly and intentionally encourages, assists, or influences a criminal act of another, if the latter’s crime is naturally and probably caused by (i.e., is the natural and probable consequence of) the criminal act so encouraged, assisted, or influenced.’ [Citation.] Accordingly, the logical and legal impediments to felony-murder liability discussed in Ireland are inapplicable and do not limit the liability of an aider and abettor. [Citation.]” (Karapetyan, supra, 140 Cal.App.4th at p. 1178.)

People v. Culuko (2000)78 Cal.App.4th 307 (Culuko), said: “The natural and probable consequences doctrine operates independently of the second degree felony-murder rule. It allows an aider and abettor to be convicted of murder, without malice, even where the target offense is not an inherently dangerous felony. (See., e.g., People v. Lucas (1997) 55 Cal.App.4th 721, 732-733 [target offense of brandishing a firearm]; People v. Laster (1997) 52 Cal.App.4th 1450, 1463-1466 [target offense of discharging a firearm from a motor vehicle].)” (Culuko, supra, 78 Cal.App.4th at p. 322.) “The Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice. [Citations.]” (Culuko, supra, 78 Cal.App.4th at p. 322.)

Accordingly, we reject Campaz’s argument about merger.

ii. Claim of Legal Inadequacy

We next reject Campaz’s argument that guilt of murder cannot be predicated on aiding/abetting a simple misdemeanor assault, because to do so would be an impermissible back-door expansion of the felony-murder rule to a “misdemeanor-murder rule.” Campaz argues such facts would support no more than an involuntary manslaughter conviction, because under section 192, subdivision (b), a killing without malice during commission of a misdemeanor is involuntary manslaughter, not murder. He argues that predicating murder on aiding a simple assault would permit the intent to commit a misdemeanor, coupled with negligence about the scope of the conduct likely to result from that misdemeanor, to substitute for proving malice.

Campaz’s arguments are defeated by a California Supreme Court opinion filed while this appeal was pending (the pendency of which was noted in Campaz’s opening brief). Thus, People v. Medina, supra, 46 Cal.4th 913, held in a split decision (4-3) that two defendants’ lack of prior gang rivalry with a murder victim and lack of prior knowledge that their codefendant was armed did not preclude murder from being a natural and probable consequence of an assault. There, “a verbal challenge by defendants (members of a street gang) resulted in a fistfight between defendants and the victim (a member of another street gang). After the fistfight ended, one of the defendants shot and killed the victim as he was driving away from the scene of the fight with his friend.” (Id. at p. 916.) The jury found the aiders/abettors guilty of murder and attempted murder. The Court of Appeal reversed on the ground there was insufficient evidence that the nontarget offenses of murder and attempted murder were a natural and probable consequence of the target offense of “simple assault” which they had aided/abetted. (Ibid.) The California Supreme Court reversed the Court of Appeal “[b]ecause a rational trier of fact could have concluded that the shooting death of the victim was a reasonably foreseeable consequence of the assault, on the facts of [the] case.” (Ibid.)

Medina said, “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 reasonable foreseeable consequence of the act aided and abetted.’ [Citation.]” (Id. 46 Cal.4th at p. 920.) “A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury. [Citations.]” (Ibid.) “[P]rior knowledge that a fellow gang member is armed is not necessary to support a defendant’s murder conviction as an aider and abettor. [Citation.]” (Id. at p. 921.) A rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault, where the defendants challenged the victim by asking, “Where are you from?” and attacked the victim for responding in a manner they viewed as disrespectful. (Id. at p. 922.)

Medina, supra, 46 Cal.4th 914, said there was evidence that a gang member’s query “where are you from?” means “what gang are you from?” and is a verbal challenge which, depending on the response, “could lead to a physical altercation and even death.” (Id. at p. 922.) Evidence regarding gang culture spoke to violence as a response to disrespectful behavior. (Id. at p. 923.) The Supreme Court said that, “Given the gang-related purpose of the initial assault and the fact that, despite being outnumbered, [the victim] exhibited strength against three aggressors who could not avenge themselves in response to what they considered disrespectful behavior by [the victim], the jury could reasonably have found that a person in defendants’ position (i.e., a gang member) would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable as [the victim] was retreating from the scene. [Citation.]” (Id. at pp. 922-923.)

Thus, under Medina, supra, 46 Cal.4th 914, the critical point is not whether an assault could be characterized as a simple assault, but whether a rational trier of fact could conclude on the particular facts of the case that murder was a reasonably foreseeable consequence of the assault.

Campaz argues in his reply brief that Medina, supra, 46 Cal.4th 914, is distinguishable, because there the challenge was to the sufficiency of the evidence to support the verdict, not the sufficiency of the evidence to support instructing the jury on that theory. However, this distinction merely shows that Medina defeats Campaz’s claim of legal inadequacy (of murder as a natural and probable consequence of a simple assault), leaving only his claim of factual inadequacy. (Guiton, supra, 4 Cal.4th at p. 1128 [distinguishing between legal and factual inadequacy].)

iii. Factual Inadequacy

To the extent that Campaz views simple assault as a factually inadequate theory lacking in evidence that murder was a natural and probable consequence of aiding/abetting a simple assault, we see no grounds for reversal. We shall conclude there was insufficient evidence of a simple assault, and we therefore presume the jury disregarded it.

We first observe Campaz’s participation in the assault is not limited to his act of pushing the victim. He also aided/abetted the assault by being present to prevent anyone from interfering. (People v. Swanson-Birabent, supra, 114 Cal.App.4th at pp. 743-744.)

Campaz cites People v. Prettyman (1996) 14 Cal.4th 248, which said murder is not a natural and probable consequence of “trivial activities,” and to trigger application of the natural and probable consequences doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed. (Id. at p. 269.)

The jury was instructed that “simple assault” was an act that would directly and probably result in “the application of force to a person,” whereas assault with force likely to produce great bodily injury was an act that would directly and probably result in the application of force likely to produce great bodily injury, defined as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”

However, there was insufficient evidence that the plan involved a simple assault. The evidence was that, at a minimum, the planned assault was going to leave the victim with serious physical injuries. It was planned to be three against one in a secluded location late at night, away from defendants’ homes, for the purpose (according to Campaz’s understanding) of getting revenge for a rape of White’s sister. The victim stood around five feet, 10 inches tall. White is six feet, four inches tall and (at the time) weighed 165 pounds. Campaz weighed about 200 pounds. Although there was evidence that White’s real motive involved drug debts or a borrowed truck, Campaz says he did not know about these motives. For purposes of this appeal, it does not matter, because Campaz admitted to Ceragioli that the plan was to beat the victim “badly” enough to hospitalize him. Ceragioli’s failure to say “badly” at the preliminary hearing, where she was not asked to quantify the planned assault, does not constitute evidence the plan was a mere simple assault. Under these circumstances, regardless of White’s motive, Campaz had to expect great bodily injury would be inflicted on the victim, making it a felony assault. Moreover, after the victim was stabbed, Campaz pushed the victim back into the bathroom when the victim tried to escape. This evidence is consistent with a plan to inflict great bodily injury and inconsistent with a simple assault. That Campaz claimed he panicked is insufficient to show he intended to aid only a simple assault, given the evidence he knew the plan was to hospitalize the victim.

Campaz wants to focus on the jury’s findings that he did not use a knife and his claim that he did not know White was armed with knives and therefore did not intend to aid/abet an assault with deadly weapons. However, these points do not matter because Campaz fails to address liability predicated on an intent to aid and abet an assault with force likely to produce great bodily injury. Indeed, Campaz’s cited case, Prettyman, supra, 14 Cal.4th 248, said that when a defendant assists a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaults but kills the victim, the death is a natural or probable consequence of the assault. (Id. at pp. 262, 267 [if jury concluded that defendant encouraged perpetrator to assault victim with steel pipe “or by means of force likely to produce great bodily injury, then it could appropriately find” that the murder was a natural and probable consequence of the assault].)

In Karapetyan, supra, 140 Cal.App.4th 1172, this court upheld a murder conviction, even though it may have been based on a theory of aiding/abetting an assault with murder as a natural and probable consequence. (Id. at pp. 1176-1177.) Campaz notes that in Karapetyan the defendant entered the assault with weapons and with his sons also carrying weapons, whereas here the jury found Campaz did not use a knife, and there was some (minimal) evidence that Campaz did not have prior knowledge of White’s knives (i.e., his after-the-fact, self-serving statement to Ceragioli). Campaz cites cases holding that a homicide was not a natural and probable consequence of an assault with a deadly weapon, where the aider/abettor did not know about the weapon. (E.g., People v. Hickles (1997) 56 Cal.App.4th 1183; People v. Butts (1965) 236 Cal.App.2d 817.) However, that holding was criticized in People v. Godinez (1992) 2 Cal.App.4th 492, 501, which criticized Butts (an opinion issued by the Third Appellate District) to the extent it required aiders/abettors to know of and encourage the use of a deadly weapon. Moreover, in Campaz’s cited cases, the weapon was the factor making the planned assault felonious. Here, even assuming Campaz did not know about White’s knives, Campaz knew the plan was to beat the victim badly enough to hospitalize him. Thus, it does not matter whether Campaz knew of White’s knives, because Campaz knew that the plan was to commit an assault with great bodily injury.

Campaz cites gang cases such as People v. Godinez, supra, 2 Cal.App.4th 492, which reversed a conviction due to error in instructing the jury that murder was a natural and probable consequence of “any gang attack.” No such problem exists in this case.

We conclude there was insufficient evidence to instruct the jury on simple assault.

iv. Any Error in Instructing on Simple Assault Was Harmless

People v. Guiton, supra, 4 Cal.4th 1116, said: “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute,... [the] rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground. [Fn. omitted.] [¶] We do not, however, hold that affirmance is always appropriate [for factual inadequacy], or reversal [for legal inadequacy]. These are general rules to apply in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed.” (Id. at p. 1129.) Since the case before the Guiton court involved factual inadequacy, the Supreme Court said it did not need to decide the exact standard of review for cases of legal inadequacy but noted that in cases of legal inadequacy the general rule has been to reverse because the appellate court was unable to determine which of the prosecution’s theories served as the basis for the jury’s verdict. (Id. at p. 1130.) “But even this rule has not been universal. One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations.] [¶] There may be additional ways by which a court can determine that error in the [legal inadequacy] situation is harmless.” (Id. at pp. 1130-1131.)

Another way of finding harmless error in cases of legal inadequacy is if other aspects of the verdict or evidence leave no reasonable doubt that the jury made the findings necessary for the legally adequate theory. (Chun, supra, 45 Cal.4th 1172, 1203-1205 [error in instructing on felony murder was harmless where, on the evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice].)

Here, inadequacy of evidence of simple assault does not require reversal, because a valid ground for the verdict remains, and we see no affirmative indication in the record that the verdict actually rested on the inadequate ground. To the extent simple assault was a factually inadequate theory, we presume the jury disregarded it.

Contrary to Campaz’s arguments, the jury’s questions during deliberations do not reflect prejudice. That the jury’s note indicated the jury believed Campaz was guilty of an “assault that resulted in murder” does not mean the jury found a simple assault. Obviously, “assault” in that context was shorthand for the three variations of assault.

Campaz suggests that, because the jury’s second question asked about determining guilt of the perpetrator after finding guilt of the aider/abettor, the jury must have put the cart before the horse. However, the jurors’ first question indicated they had agreed one of the defendants met the requirements for first degree murder. The jury’s questions do not demonstrate prejudice.

We conclude the jury instructions on aiding/abetting do not compel reversal of the judgment.

2. Aider’s Liability Greater than Perpetrator’s Liability

Campaz argues he, as an aider/abettor, cannot be convicted -- under a natural and probable consequence theory -- of a crime greater than that committed by the actual perpetrator whom Campaz aided/abetted. However, Campaz fails to show that he was convicted of a greater offense than the perpetrator, and in any event the contention lacks merit.

People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), which said the liability of an aider/abettor may be greater than that of the actual perpetrator, is not controlling because it did not involve the natural and probable consequences doctrine and specified, “Nothing... in this opinion necessarily applies to an aider and abettor’s guilt of an unintended crime under the natural and probable consequences doctrine.” (McCoy, supra, 25 Cal.4th at pp. 1117, 1123 [reversal of McCoy’s conviction for instructional error regarding unreasonable self-defense did not compel reversal as to codefendant who did not assert that defense].)

We need not decide whether McCoy applies to the natural and probable consequence doctrine, because here there is nothing to indicate that Campaz’s jury found him guilty of a greater offense than the perpetrator.

Campaz was convicted of first degree murder. To the extent Campaz wants to rely on the verdict in White’s retrial finding White guilty of second degree murder, Campaz cannot do so, because that verdict was reached in a different trial by a different jury presented with different evidence. Standefer v. United States (1980) 447 U.S. 10 [64 L.Ed.2d 689] upheld the conviction of a person convicted of aiding/abetting a crime despite the fact that the alleged actual perpetrator had previously been acquitted of that crime in a different prosecution. The United States Supreme Court held the acquittal had no preclusive effect on the aider/abettor’s trial. “This case does no more than manifest the simple, if discomforting, reality that ‘different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. [Citations.] While symmetry of results may be intellectually satisfying, it is not required. [Citation.] Here, petitioner received a fair trial at which the Government bore the burden of proving beyond reasonable doubt that [the acquitted person] violated [the statute] and that petitioner aided and abetted him in that venture. He was entitled to no less--and to no more.’” (Id. at pp. 25-26.) The California Supreme Court cited Standefer with partial approval in People v. Palmer (2001) 24 Cal.4th 856, 862-863, which held consistent verdicts are not required in joint trials for conspiracy. Palmer did not, however, overrule People v. Taylor (1974) 12 Cal.3d 686, which held collateral estoppel barred conviction of a defendant where his guilt would have to be predicated on vicarious liability for the acts of a previously acquitted confederate. (Palmer, supra, 24 Cal.4th at p. 866; Taylor, supra, 12 Cal.3d at p. 698.)

While this appeal was pending, the California Supreme Court did expressly overrule Taylor in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1 (Sparks).) Sparks held: “Occasional inconsistent verdicts are inevitable in our criminal justice system. If a verdict regarding one participant in alleged criminal conduct is inconsistent with other verdicts, all of the verdicts may stand. [Citations.]” (Sparks, supra, 48 Cal.4th at p. 5, citing Standefer, supra, 447 U.S. 10, and Palmer, supra, 24 Cal.4th 856.) Sparks held the defendant could be prosecuted for murder, even though the prior separate murder trial of two other participants had yielded one acquittal and one verdict of voluntary manslaughter.

Thus, Sparks defeats Campaz’s complaint about inconsistent verdicts. Moreover, even without the newly-decided Sparks opinion, we would reach the same result. No one was acquitted at the time of the Campaz verdicts. What mattered here was what crime Campaz’s jury believed was committed by the perpetrator. The Campaz first degree murder verdict is explained by one of the Campaz jury’s questions to the court, indicating they agreed one of the defendants met the requirements for first degree murder. They asked, “If we agree that one of the defendants met the requirements for 1st degree murder and we agree that our defendant met the requirements of [aiding/abetting liability], then does the law require us to find the defendant guilty of 1st degree murder as well?” Thus, an entirely plausible explanation of the Campaz verdict is that the jury found White committed a first degree murder which was a natural and probable consequence of Campaz aiding/abetting an assault with force likely to produce great bodily injury.

Campaz cites People v. Caesar, supra, 167 Cal.App.4th 1050, which held that, in light of the jury’s determination that the defendant-shooter did not act with premeditation in attempting to murder a victim, the codefendant-nonshooter tried by the same jury could, at most, be convicted of attempted unpremeditated murder, under the natural and probable consequence doctrine of aider/abettor liability. Campaz acknowledges Caesar involved only one jury for both the perpetrator and aider/abettor. Here, the perpetrator and aider/abettor were tried by different juries. Moreover, the California Supreme Court in Sparks, supra, 48 Cal.4th 1, 18, expressly disapproved Caesar’s intolerance of inconsistent verdicts.

Campaz argues the trial court’s answers to the jury’s questions during deliberations misled the jury. Campaz argues the trial court’s response to jury Request No. 6 failed to tell the jury it had to determine what crime the perpetrator committed before it could determine whether the crime was a natural and probable consequence of aiding and abetting an assault. We see no error. Request No. 6 asked for clarification of malice aforethought, of Campaz’s culpability for a perpetrator’s act, and whether the jurors must find Campaz, as an aider/abettor, guilty of first degree murder if they found the perpetrator committed a first degree murder. The court instructed in part that, if the jurors found Campaz aided/abetted murder knowing the perpetrator intended to commit murder and with intent (by Campaz) to aid the perpetrator’s commission of murder, then Campaz would be guilty of murder, or if Campaz aided/abetted assault and first degree murder was the natural and probable consequence of that assault under the circumstances, then Campaz would be guilty of murder. Campaz complains the court’s answer did not require the jurors to determine whether Campaz himself had the state of mind required for first degree murder if they decided murder was the target crime. However, even assuming such an instruction would be proper, there could be no prejudice because, as Campaz himself asserts, the jury’s quick follow-up question reflected the jury viewed the target crime as assault.

Campaz says jury Request No. 7 indicated the jury did not find that murder was the target crime aided/abetted by Campaz. He argues that evidence he aided/abetted an assault resulting in murder showed that a reasonable person in his position would not expect that White and/or Montoya would kill the victim with premeditation and deliberation. Campaz says his own act of pushing the victim back into the bathroom (in asserted panic) was a simple assault. Campaz points to evidence that Montoya later asked Campaz, “Did we hurt him? Did we kill him?” Campaz says that, at most, these facts support a reasonable expectation that second degree murder was committed by the actual perpetrator(s). However, Campaz’s interpretation of the evidence does not render the jury instructions improper.

Campaz acknowledges that if he saw the victim was undergoing a “bad beating” with knives or with force likely to cause great bodily injury when he (Campaz) pushed the victim back inside and prevented him from leaving, then Campaz was aiding/abetting a level of assault dangerous to life from which murder would be a natural and probable consequence. (People v. Prettyman, supra, 14 Cal.4th at p. 262.) Nevertheless, says Campaz, the evidence did not show he knew White’s intent until it happened. Campaz appears to suggest that White did not stab or slug the victim “in a rage” until after Campaz pushed the victim back into the bathroom. However, no evidence supports that interpretation. The only evidence is that the victim tried to escape after being stabbed multiple times.

We conclude there was no reversible error regarding an aider/abettor having greater liability than a perpetrator.

3. Equally Guilty

In his reply brief, Campaz develops an argument about the instructions on an aider/abettor being “equally guilty” with the perpetrator on a natural and probable consequence theory. Campaz says he raised this argument (somewhere) in his (121-page) opening brief. He says one of the cited cases (People v. Samaniego (2009) 172 Cal.App.4th 1148) was published after he filed his opening brief (but it was published shortly before he filed his brief). The Attorney General responds to this argument in his supplemental brief, and we shall therefore consider it.

To the extent that Campaz’s argument turns on his assertion that he aided/abetted a simple assault only, we have already determined there was insufficient evidence that the plan was a simple assault only.

Campaz’s jury was instructed with CALCRIM No. 400, that a person may be guilty of directly committing a crime (perpetrator) or aiding/abetting the crime, and “[A] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence established aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” (We disregard the citation in Campaz’s reply brief to other instructions given to Montoya’s jury.)

In response to jury questions, the trial court told the jurors that defendant was “equally guilty” of murder if the jury found he aided/abetted assault, and murder was a natural and probable consequence of the assault. The trial court declined Campaz’s request to add an instruction that “the level of crime you determine it to have been proven the perpetrator committed does not necessarily dictate the level of crime an aider and abettor committed.”

Campaz argues the “equally guilty” language is misleading. He cites Samaniego, supra, 172 Cal.App.4th 1148, which said in dictum (after concluding the contention was forfeited) that the “equally guilty” language in CALCRIM No. 400 -- though generally correct -- was misleading under the circumstances of the case, but the error was harmless. Samaniego did not explain what it was about the circumstances of the case that made the instruction misleading. The prosecutor’s theory was that the two defendants went to a house intending to kill one person, but he was not there, so they benefitted their gang by killing another person who was there. (Id. at p. 1162.) Samaniego said, “Though McCoy [supra, 25 Cal.4th 1111] concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state. [Citation.] Consequently, CALCRIM No. 400’s direction that ‘a person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it’ (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.” (Id. at pp. 1164-1165.) Samaniego said CALCRIM No. 400 misdescribed the prosecution’s burden in proving the aider/abettor’s guilt of first degree murder by eliminating its need to prove the aider/abettor’s intent, willfulness, premeditation, and deliberation. (Id. at p. 1165.) The error was harmless because the jury necessarily found under other instructions that the appellants acted willfully with intent to kill. (Id. at p. 1165.)

Samaniego, like McCoy, involved direct aiding/abetting, not the natural and probable consequence doctrine, and thus is not on point. We therefore reject Campaz’s argument that the jury was required to find he shared an intent to commit first degree murder before they could find him guilty of first degree murder.

Campaz cites People v. Woods (1992) 8 Cal.App.4th 1570, where this court held that, under a natural and probable consequence theory, an aider/abettor could be found guilty of a lesser offense than the perpetrator, and the trial court erred in telling the jurors they could not find the defendant guilty of second degree murder if they found the perpetrator guilty of first degree murder. “[A]n aider and abettor may be found guilty of a lesser crime than that ultimately committed by the perpetrator where the evidence suggests the ultimate crime was not a reasonably foreseeable consequence of the criminal act originally aided and abetted, but a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was such a consequence. Accordingly, even when necessarily included offense instructions are not required for the perpetrator because the evidence establishes that, if guilty at all, the perpetrator is guilty of the greater offense, the trial court has a duty to instruct sua sponte on necessarily included offenses for the aider and abettor if the evidence raises a question whether the greater offense is a reasonably foreseeable consequence of the criminal act originally contemplated and abetted, but would support a finding that a lesser included offense committed by the perpetrator was such a consequence. However, the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise.” (Id. at pp. 1577-1578.) This court said the evidence raised a question as to whether the first degree murder was a reasonably foreseeable consequence of the aided/abetted armed assaults, but the evidence established beyond question that the necessarily included offense of second degree murder (an intentional but unpremeditated killing or a killing resulting from conduct inherently dangerous to life) was a reasonably foreseeable consequence. (Id. at p. 1578.) Thus, the trial court was required to inform the jurors they could convict the defendant of second degree murder as an aider/abettor, even if they found the perpetrator guilty of first degree murder. (Ibid.)

In People v. Hart (2009) 176 Cal.App.4th 662, this court extended Woods (where the trial court misinformed the jury) to a case where the trial court merely failed to inform the jury that it could convict the aider/abettor of a lesser crime than the perpetrator under the natural and probable consequence doctrine. Hart, where the perpetrator and aider/abettor were tried jointly, reversed a conviction where the trial court did not affirmatively inform the jury that it could find the aider/abettor guilty of attempted unpremeditated murder -- as a natural and probable consequence of an attempted robbery -- if the jury found the actual perpetrator committed attempted premeditated murder. (Hart, supra, 176 Cal.App.4th at p. 672.) The instructions on natural and probable consequences referred to “attempted murder” without noting that, in order to convict the aider/abettor of attempted premeditated murder under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder was a natural and probable consequence of the attempted robbery. (Id. at p. 665.) Hart found fault in that the trial court “did not relate the instruction concerning premeditation and deliberation [in the instructions on the elements of attempted murder] to the natural and probable consequences instruction. In other words, the court did not instruct the jury that, in order to find [the aider/abettor] guilty of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder is a natural and probable consequence of the attempted robbery. With respect to the natural and probable consequences doctrine, the jury was asked only whether ‘under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the attempted murder or assault with a firearm was a natural and probable consequence of the commission of the attempted robbery.’” (Id. at p. 670.) Hart said: “The instructions did not fully inform the jury that, in order to find [the aider/abettor] guilty of attempted premeditated murder as a natural and probable consequence of attempted robbery, it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery. [¶] The trial court’s general instructions concerning the premeditation and deliberation element of attempted premeditated murder did not suffice. The trial court properly instructed the jury concerning premeditation and deliberation, as it relates to attempted murder, stating, in essence, that it is a subjective state of mind. However, in determining whether the premeditation and deliberation element was a natural and probable consequence of the attempted murder, the jury does not look at the aider and abettor’s subjective state of mind. Therefore, the general instruction concerning the premeditation and deliberation element of attempted murder did not properly inform the jury concerning its duty with respect to the natural and probable consequences doctrine. [¶] We conclude that the trial court has a duty, sua sponte, to instruct the jury in a case such as this one that it must determine whether premeditation and deliberation, as it relates to attempted murder, was a natural and probable consequence of the target crime.” (Id. at p. 673.) “Under the instructions given, the jury may have found [the aider/abettor] guilty of attempted murder using the natural and probable consequences doctrine, an objective test, and then found the premeditation and deliberation element true using the only instruction given as to that element, which described a subjective test.” (Id. at p. 674.)

Unlike Woods, supra, 8 Cal.App.4th 1570, here the trial court did not prohibit the jurors from finding Campaz guilty of a lesser offense than the perpetrator. Nor does Hart, supra, 176 Cal.App.4th 662, compel reversal in this case. In Hart, the trial court instructed the jury that if it found the aider/abettor guilty of attempted murder, it must decide whether the People proved the “‘additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.’” (Id. at p. 670.) The trial court did not relate the instruction concerning premeditation to the natural and probable consequences instruction; it did not instruct that the jury would have to find that attempted premeditated murder was a natural and probable consequence of the attempted robbery. (Ibid.) Here, in contrast, the trial court did give such an instruction. After the jury’s second question on the subject, the court instructed that if the jury found defendant aided/abetted the assault and a perpetrator killed someone, the jury “must then determine whether or not the crimes of first degree murder, second degree murder [or manslaughter] were a natural and probable consequence of the assault....”

When the jurors asked if they had to find defendant, as an aider/abettor, guilty of first degree murder upon finding one of the defendants committed a first degree murder, it would have been clearer had the court given a direct answer of “No.” However, the court’s reiteration of the law (that defendant was guilty of murder if murder was a natural and probable consequence of the aided/abetted assault) was not incorrect. The court said the defendant in such a case would be equally guilty of murder, but the court did not say equally guilty of first degree murder. To the extent the court’s first response may be viewed as inadequate, it was corrected in the court’s subsequent response, that if the jurors found defendant intended to aid/abet an assault (with great bodily injury, etc.), and if they found a perpetrator committed an unlawful killing, “you must then determine whether or not the crimes of first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter were a natural and probable consequence of the assault [etc.]” Thus, the court properly instructed the jury to determine Campaz’s liability based on what degree of homicide offense was the natural and probable consequence of the assault, not based merely on what degree of homicide offense was committed by the perpetrator.

Campaz argues that, if he aided/abetted assault with a deadly weapon and/or by force likely to cause great bodily injury, then the jury could find either manslaughter or murder as a reasonably probable consequence, but the instructions did not explain those alternatives “in a meaningful way.” We disagree that the instructions were inadequate.

Campaz argues the jury’s findings that he did not use a knife and did not lie in wait demonstrate that the jury found Campaz did not go to the park with the intent to commit an assault with a deadly weapon or an intent to kill with deliberation and premeditation. However, Campaz did not need to use a weapon or lie in wait in order to be convicted of first degree murder as a natural and probable consequence of aiding/abetting assault with force likely to cause great bodily injury under the circumstances of this case.

We conclude there was no reversible error regarding aiding and abetting.

4. Voluntary Intoxication

Campaz raises two issues concerning the jury instruction on voluntary intoxication, CALCRIM No. 625.⁷

7 CALCRIM No. 625 defined voluntary intoxication and told the jury, “If you find that the defendant was intoxicated at the time of the alleged crime, you may consider that evidence in a limited way. You may consider that evidence only in deciding the following: [¶] Whether the defendant acted with the intent required for murder, voluntary manslaughter, lying in wait, aiding and abetting and/or conspiracy. [¶] Whether the defendant acted with the state of mind required for murder, voluntary manslaughter, lying in wait, aiding and abetting, conspiracy or the natural and probable consequence doctrine. [¶] The previous instructions I have given you for these offenses define the intent and/or state of mind required. [¶] You may not consider evidence of voluntary intoxication for any other purpose.”

First, he contends the instruction was “prejudicially inadequate,” denying him due process of law and the right to a jury determination of all issues, because the instruction said the jurors “may” rather than “must” consider all the evidence regarding intoxication. The contention fails. We consider the instructions as a whole (People v. Jablonski (2006) 37 Cal.4th 774, 831), and other instructions told the jurors they “must impartially compare and consider all the evidence[.]” Campaz cites People v. Stevenson (1978) 79 Cal.App.3d 976, 987, as disapproving a similar former version of the instruction. However, that is a case from the era of diminished capacity. California abolished the defense of diminished capacity in 1981, and CALCRIM No. 625 is true to section 22, which says voluntary intoxication shall not be admitted to negate the capacity to form mental states but is admissible solely on the issue of whether the defendant “actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (People v. Timms (2007) 151 Cal.App.4th 1292, 1297-1298.)

Campaz cites no evidence of diminished actuality. He cites evidence that he smoked a lot of methamphetamine in general and all day on the day of the killing. He told Ceragioli he was “high” at the time of the killing. White testified he and Campaz spent much of the day consuming marijuana and methamphetamine, and Campaz was already “wired” when he arrived early in the day. They continued the party that night with Montoya, the victim, and others, consuming alcohol and smoked marijuana and methamphetamine. Campaz argues this was a “fluid situation” involving heavy drug users on a “binge,” and drug use is “probably” a stronger explanation for the killing than retaliation for a sibling’s rape, and Campaz was intoxicated too and “could well have been caught up in the assault by White and Montoya.” However, Campaz cites no evidence that his intoxication actually negated a required intent or state of mind.

Campaz’s second complaint is that, although CALCRIM No. 625 (fn. 7, ante) told the jury that voluntary intoxication was relevant to intent or state of mind, the instructions on aiding/abetting (CALCRIM 401) and natural and probable consequences (CALCRIM 403) referenced the instruction defining assault, which told the jury that “voluntary intoxication is not a defense to assault.” Campaz thinks this latter sentence should not have been included in the instructions to his jury and must have confused the jury. However, assuming for the sake of argument that the contention is preserved for appeal, any error was harmless beyond a reasonable doubt because, as the prosecutor observed in closing argument, there was evidence of drug use but no evidence that the drug use had any impact on Campaz’s mental faculties. Campaz acknowledges the prosecutor’s observation but fails to refute it in his appellate briefs.

We see no reversible error in the jury instruction on voluntary intoxication.

5. Cumulative Harm

Campaz argues the cumulative effect of the foregoing errors deprived him of due process and a fair trial by an impartial jury. Having reviewed all claims of error, we conclude there is no cumulative prejudice.

6. Reduction

Campaz says we should exercise our discretion to reduce his first degree murder conviction to second degree murder in the interests of justice. We decline to do so.

II. White’s Appeal

White’s appeal raises claims of evidentiary and instructional error and the trial court’s refusal to release juror identifying information. We shall affirm the judgment.

A. Facts

Evidence adduced at White’s retrial included the same forensic evidence, but Ceragioli testified as a defense rather than prosecution witness, and Montoya testified as a prosecution witness.

Montoya acknowledged his second degree murder conviction and his expectation that if he testified the prosecutor would put in a good word for him for parole purposes. Montoya denied seeking revenge against White for testifying in the first trial. Montoya attributed his own conviction to his own recorded confession to police. Montoya testified he spent the three weeks before the August 2004 killing celebrating his 18th birthday with Ecstasy, methamphetamine, and alcohol. He met White by buying marijuana from him in June; he met Campaz at White’s house in July. On the afternoon before the killing, Montoya, White, Campaz, and Martinez, all of whom had been awake for days, smoked methamphetamine at White’s home. The victim arrived, smoked some of his own methamphetamine, and left. White later said the victim “had to go” for raping White’s sister; they had to kill the victim. Campaz said nothing. Montoya protested until White said he could not risk Montoya “snitchin’.” White appeared “amped up” on methamphetamine and was hyperactive, angry, and bossy. White brainstormed various scenarios but settled on luring the victim to the park on the pretext that someone wanted to buy drugs from the victim. White displayed two knives -- one with spiked handles and the other in a sheath. After consuming more drugs, Montoya and the victim left in White’s blue pickup truck. At the park, they met up with White and Campaz and, while ostensibly waiting for the drug buyer, went into the park restroom to smoke methamphetamine. White struck the victim in the face with the spiked knife, then got the victim in a headlock and stabbed him in the chest. Campaz punched the victim in the stomach. The victim was crying and trying to escape. White pushed the victim into Montoya, who stabbed the victim in the stomach with the sheath knife. The victim fell to the ground. White repeatedly pushed Montoya to “finish him off.” Montoya feared he would be killed if he refused, so he stabbed the victim two more times in the back. Montoya and Campaz left with White but returned at White’s direction to grab the victim’s possessions. The three left in the blue pickup, stopped to let Campaz out at the red pickup, but all continued on in the blue vehicle because they saw a police car. They returned to White’s house, went on the roof and removed their bloody clothes. Later, White told Montoya and Campaz to burn the blue pickup; they tried but failed. They told Anthony Martinez what happened. White was furious about the disclosure, held a machete to Martinez’s throat, and made him confess to the murder on a tape recorder. After the killing, Montoya learned the victim never raped White’s sister.

Montoya, Campaz, and White were active Norteño gang members in jail. While in jail, Norteño gang members “jumped” Montoya for being a snitch. Before the first trial, the prosecution rejected Montoya’s offer to plead guilty to first degree murder with a sentence of 25 years to life and to testify. He was then convicted of second degree murder and sentenced to 16 years to life. The prosecutor persuaded Montoya that testifying in the retrial was the right thing to do. Montoya decided not to appeal his own conviction because he thought he “got off easy.”

The jury saw a videotaped police interview of White, in which White admitted he urinated in the park restroom just before the killing but denied killing the victim and refused to implicate anyone. White admitted being angry with the victim over use of White’s vehicle and failure to pay money owed to White for drugs. White said the victim did not know White’s sister.

White testified at the retrial, blamed Campaz and Montoya for the killing, and said all he (White) did was dispose of the weapons. White admitted he went to the park but said he believed they went for a drug transaction. White smoked marijuana outside, while the others went in the restroom to smoke methamphetamine. Montoya emerged from the restroom “stone faced,” and Campaz fled saying they needed to leave immediately. Curious, White looked inside and saw the victim lying on the ground. The three left in a panic and removed their bloody clothes on White’s roof. White, with help from Chacon, threw the knives into the river and used charcoal fluid to burn the clothes. White said it was Campaz who forced Martinez to audiotape a confession. White denied using a machete on Martinez. White said he lied in the police interview because he did not want to be labeled a snitch. White said he was stabbed several times in jail for testifying in the first trial and so, for his own protection, he associated with the Norteño gang in jail. He had never been a gang member but was useful to the gang because he could write legible “kites” (tiny notes used in jail to transmit messages).

Chacon testified White said, “I” and “we” “fucked up” concerning somebody who raped a girl and owed him money. Chacon and White drove to a river, and White threw something into the river. Days later, White said, “I” or “we” killed someone. Chacon admitted he initially denied any knowledge when speaking with the police.

In the retrial, Ceragioli was called as a witness by the defense rather than the prosecution. She said Campaz at one point said he stabbed the victim. She also related, however, that Campaz said White stabbed the victim. She said Campaz said Montoya stayed in the truck. She also said Campaz said White forced Montoya to stab the victim, but this evidence was admitted for the limited purpose of evaluating whether statements Campaz made to Ceragioli at the restaurant were believable.

Dr. Wicks testified the effects of methamphetamine include anger, paranoia, misperception, and memory loss.

As indicated, the jury found White guilty of second degree murder but found he did not personally use a knife.

Additional facts appear in our discussion.

B. Discussion

1. Suppression Motion

White contends the trial court erred in denying his motion to suppress statements he made to the police after invoking his right to counsel, in alleged violation of Miranda v. Arizona (1966) 384 U.S. 436. We see no grounds for reversal.

a. Background

The police arrested White and informed him of his Miranda rights. He agreed to talk. We have viewed the relevant portions of the DVD-recorded interview.

The victim wanted to go to the park to sell narcotics. White gave him a ride and may have urinated in the park restroom just before the murder but denied any knowledge about the killing. White and the victim previously had a “falling out” over the victim owing White money for drugs and disappearing with White’s truck. White said he once beat Anthony Martinez for stealing, but when the police asked whether the reason was that Anthony was “telling on somebody,” the following ensued:

“DETECTIVE: About Jeremy [the victim] being -- getting killed?

“MR. WHITE: About Jeremy fucking whatever. He went and fucking, ah, more or less fucking, he fucking -- I told him to fucking, ah -- ah --ah, I want to talk to my lawyer.

“DETECTIVE: Okay.

“MR. WHITE: If that’s the case then (unintelligible).⁸

8 At a later hearing, the trial court gave its interpretation of the videotape as White saying, “If that’s the case, then what happens from here?”

“DETECTIVE: Well, you sit here until I process the paperwork and - and you go to jail and, ah,

“MR. WHITE: My Lawyer, excuse me, I can’t talk to my lawyer right now?

“DETECTIVE: No.

“MR. WHITE: ‘Cause this is ridiculous, man. I mean, come on, man, I mean

“DETECTIVE: I ge -- you have to tell me you want to talk to me. Once you tell me

“MR. WHITE: Nah. I just -- it’s not

“DETECTIVE: -- you tell me you want to talk to your lawyer, you talk -- that’s your right. And I got to -- I -- I respect that. But if you turn around and tell me you want to talk to me, then I’ll talk to you but it’s got to be your choice.”

White then interrogated the detective, asking if he (White) was allowed to see the file, whether anyone else had been arrested, how many had been arrested, and whether any of the others had made any admissions. White asked, “if I had a recording -- someone confessing to that murder, then what?” The detective said it would depend on a lot of things, but he could not explore them at that time, because White had asked for a lawyer. White kept talking, and the detective kept reminding him he had asked for a lawyer, which was fine, and the request for counsel precluded further conversation unless White said he wanted to talk. White said, “Will you talk to me about it a little bit, man, please?” The detective said yes. White said he was not involved with the killing and was being set up. He again acknowledged the urine was his. He said, “(Unintelligible) off, I knew I was da -- like, man, I even fucking told one -- ah, one of the homeboys that, ah, man, I’m cool, man. Jeremy [the victim] can’t be at my house. I mean, we got a funk whatever. Fucking cool. I’ll beat him up when I fucking see him. Or -- or you know what I mean? But, ah, my boys was like, well, just give him a pass. Fucking (unintelligible). But, man, I was just like I’m cool. You know what I mean? (Whispering.) That’s fucked up. Where was I just at?” White then said he felt “hella weird” and “fucked up” from drugs.

White sought suppression of what he said after requesting a lawyer. A similar motion was made and denied in the first trial. At the retrial, the court denied the suppression motion, finding that “although Mr. White did in fact invoke his right to an attorney, that he reinitiated questioning with the detective, that he continues to ask questions of the detective and try [sic] to get information from him, that he does so knowing that he has the right not to speak with him, that he voluntarily continues to speak with him; and that the fact that the detective told him that - he answered no when he was asked I can’t talk to my lawyer right now, did not mislead Mr. White to the extent that any subsequent conversation was somehow involuntary or in violation of his rights.”

b. Analysis

“‘A suspect [in custody], having invoked [Miranda] rights, is not subject to further interrogation by the police until counsel has been made available to him or her, unless the suspect personally “initiates further communication, exchanges, or conversations” with the authorities. [Citations.]’” (People v. Storm (2002) 28 Cal.4th 1007, 1021-1022, citing Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378].) “‘The initiation of further dialogue by the accused, however, does not in itself justify reinterrogation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044 [77 L.Ed.2d 405].) “[E]ven if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” [Citation.]’ [Citation.] Therefore, it is clear that a conversation may be resumed in the absence of counsel only if the ‘accused himself initiates further communication, exchanges, or conversations with the police’ [citation] and the circumstances indicate that the accused has made a knowing and intelligent waiver of the right to an attorney [citation].” (People v. Bradford (1997) 15 Cal.4th 1229, 1311 [defendant’s query as to “what was going on” would not in itself have been sufficient to establish reinitiation of contact, but defendant went further and on his own initiative expressed willingness to speak with the detective after readvisement of Miranda rights].) “[O]nce a suspect in custody invokes his Miranda right to counsel, his or her subsequent statements to police are presumed involuntary and inadmissible if obtained pursuant to an ‘encounter [initiated by the police] in the absence of counsel (assuming there has been no break in custody).’ [Citation.]” (Storm, supra, 28 Cal.4th at p. 1023.) The rule barring police recontact after a Miranda request for counsel applies during continuous custody. (Id. at p. 1023.) The rule was designed to protect an accused in police custody from being badgered by police officers in an effort to wear the suspect down after invoking the right to counsel. (Id. at p. 1024.)

Upon review of the trial court’s denial of defendant’s suppression motion, this court accepts the trial court’s resolution of disputed facts and inferences, if supported by substantial evidence, and independently determines from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. (Storm, supra, 28 Cal.4th at pp. 1022-1023.)

The undisputed facts of what was said in the police interview, as evidenced by the DVD, clearly demonstrate that it was White himself, not the police, who wanted to keep talking after he asked to see a lawyer. Indeed, the detective repeatedly reminded White that he had asked for a lawyer and had a right to talk with a lawyer and, each time, White pursued further conversation. The voluntariness of White’s actions in resuming the interview is clearly shown in that White, despite his suggestion that he was impaired by drug use, had the presence of mind and sufficient savvy to try to probe the officer for information about what evidence the police had obtained.

We conclude the trial court did not err in denying the suppression motion.

Even assuming for the sake of argument that the trial court erred in denying the suppression motion, any error was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 994.) White already made incriminating statements before he asked for a lawyer, e.g., by acknowledging it was his urine in the park bathroom. Although White did make an additional potentially incriminating statement after asking for a lawyer, it was garbled. White never admitted involvement in the crime. His story was that others set him up.

On appeal, White’s sole argument about prejudice is that he was prejudiced because the trial court’s ruling “inexorably forced [White] to testify in both [trials], subjecting him to unusually prejudicial gang/jail impeachment [evidence]....” Thus, the prejudice claimed by White was not admission of his statements to the police. However, White cites nothing in the record proving the trial court’s denial of the suppression motion forced him to testify at either trial. He cites his attorney’s hypothetical question during the second trial, “Suppose the Court determined that it was -- that it had ruled incorrectly before [by denying the suppression motion in the first trial]? Right? And that prompted Mr. White to testify. Okay? And if the Court were to rule [in the second trial to exclude White’s statements to the police], does that mean that if he doesn’t testify this time around, that his testimony at the previous trial would be admissible?” The judge said she thought not but was unsure and deferred the matter. When the trial court returned to the matter, White’s trial counsel argued that under an objective standard a person in White’s position would think the police, by saying he could not have a lawyer at that moment, meant he could not have a lawyer. White’s trial lawyer conceded the issue was moot, since White testified in the first trial, but said, “I’m raising it for appellate processes [sic] because he may not have testified the very first time around had the statement not come in. [¶] Right? Don’t answer that. (Speaking to defendant.)” The court moved on to other matters.

Thus, counsel did not assert the ruling forced White’s trial testimony and indeed stopped White from saying whether or not it did.

White’s reply brief repeats the claim that the ruling was material on his “decision to testify,” but again he cites no evidence in the record supporting that claim.

We see no grounds for reversal in the trial court’s denial of the suppression motion.

2. Admission of Gang Evidence

White argues the trial court erred in admitting evidence of his post-offense gang affiliation and jail conduct, on the issue of credibility, denying him due process and a fair trial. We see no basis for reversal.

a. Background

In the first trial, evidence of White’s post-offense gang affiliation in jail came in during cross-examination to impeach White’s testimony that he was afraid of Campaz due to Campaz being a gang member and therefore did not report Campaz to the police.

Before White’s retrial, the trial court considered competing motions in limine about admissibility of this evidence. White argued it was unfair to smear him with post-offense jail associations assertedly forced on him in jail, based on a straw-man gang impeachment, because fear of being a snitch was more than enough of an explanation why White did not go to the police, regardless of any gang association by Campaz. The court initially stated it might exclude the evidence if White did not mention fear of Campaz’s gang in the retrial. The court later decided, however, that if White testified in the second trial, the prosecution was entitled to show White was impeached in the first trial, regardless of whether he brought up Campaz’s gang.

In the retrial, White testified he was afraid of his codefendants, was attacked in jail for being a snitch, and had no choice but to associate with the gang in jail for protection. He was not one of the gang’s leaders, despite writing his name second on a list of gang members. He was more of a secretary, used by the gang because he could write very small, a useful talent for passing messages in jail. Prosecution evidence showed that White and his cellmate, a gang member, fought with jailers while trying to flush gang papers during a cell search. The jury was instructed the gang evidence could not be used to prove White was a bad person but only for the limited purpose of evaluating whether he testified truthfully and as it related to the officer’s opinions.

b. Analysis

The People acknowledge that White’s trial court objection -- that the evidence was unduly prejudicial -- allows him to argue for the first time on appeal that the overruling of his objection had the legal consequence of violating the constitutional right to due process. (People v. Partida (2005) 37 Cal.4th 428, 431.)

White cites the familiar rule calling for caution in admission of gang evidence due to its inflammatory potential. (People v. Champion (1995) 9 Cal.4th 879, 922.) However, such evidence is admissible if it bears substantial probative value on a disputed issue. (Ibid.) We review the trial court’s decision for abuse of discretion. (Evid. Code, § 352; People v. Cole (2004) 33 Cal.4th 1158, 1195.) The trial court was not asked to decide the due process issue. To establish a federal due process violation, the defendant must show there were no permissible inferences the jury could have drawn from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.)

Here, the evidence bore substantial probative value to impeach White because he testified under oath in the first trial that he was afraid of Campaz due to Campaz being a gang member. White’s argument, that he had no need in the first trial to mention the gang to explain his fear of “snitching,” is immaterial. The fact is that he did mention it, opening the door to impeachment with his own gang conduct. White argues this impeachment evidence was a contrived “strawman” because he was forced to associate with the gang in jail as a survival tactic. However, this is his claim; it is not a fact -- unless the jury finds it to be true, in which case he was not unduly harmed by the evidence.

White argues the scope of the gang evidence was excessive. However, his entire factual analysis is, “the scope of evidence (kites, misconduct, and opinions on shot-caller status along with unsupported insinuations of prior neighborhood/Varrio association) admitted again at the retrial was excessive in a material way.” We disregard this point as inadequately briefed without factual development. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)

There was no evidentiary error or due process violation in admitting the gang evidence.

3. Exclusion of Evidence of Third Party Culpability

White maintains the trial court erred in precluding him from using evidence of Campaz’s two other knife assaults as evidence of third party culpability, denying White due process, a fair trial, and the right to present a defense. We disagree.

a. Background

White sought to admit evidence that (1) on June 25, 2004 (before the August 5, 2004, killing at issue here), Campaz assaulted Fernando Perez with a knife over a stolen Play Station, with Marie Ceragioli urging him on (which she denied at the preliminary hearing); and (2) on July 28, 2004, Campaz assaulted Tomas Wayne with a knife for taking methamphetamine that Wayne wanted to sell but Campaz wanted to consume.

White argued the Perez incident showed Ceragioli’s bias in favor of Campaz and Campaz’s character, and the Wayne incident showed the long term relationship between White and Wayne and was admissible character evidence under Evidence Code section 1101, subdivision (b). White later argued the evidence was relevant as third party culpability evidence.

Although the evidence came in for other purposes, the trial court rejected the third party culpability theory because the two prior incidents did not tend to show Campaz committed the current offense. It would just show a propensity for violence, which was not an admissible purpose. The court understood the defense believed the evidence was relevant to attack Ceragioli’s credibility but considered that use confusing and likely to result in the jury using it as character evidence.

The court instructed the jury: “The testimony of the defendant [White] regarding prior conduct of Carlos Campaz, including the stabbing of Fernando Perez and the incident with [Tomas] Wayne, if you believe that evidence, may not be considered by you to prove that Mr. Campaz is a person of bad character or that he has a disposition to commit crimes or that he committed the crime alleged in this case. You may consider such evidence for the limited purpose of evaluating the defendant’s state of mind and his actions. You may also consider the conduct as it relates to Dr. Wicks’ opinion.”

b. Analysis

To be admissible as evidence of third party culpability, the evidence must be capable of raising a reasonable doubt about the defendant’s guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.)

Here, evidence of Campaz’s prior violence would not exculpate White, because the two were in cahoots. To the extent White thinks he would be less culpable if someone else wielded the knives, he already got that benefit by the jury finding not true the allegation that he personally used a knife.

We conclude the exclusion of evidence of third party culpability affords no basis for reversal.

4. Exclusion of Evidence to Impeach Ceragioli

White complains the trial court excluded evidence to impeach Ceragioli, in asserted denial of his rights to due process, a fair trial, and his Sixth Amendment right to confront witnesses.

In the retrial, the prosecution did not call Ceragioli as a witness but adduced evidence that she called the tip line, later helped the police locate Campaz, and gave the police Campaz’s Protech knife. The defense called her as a witness to impeach her, hoping to portray her as a vindictive, unstable person who turned on former friends such as Campaz, and was willing to lie in court and discourage others from telling the truth. The defense showed Ceragioli’s initial affiliation with Campaz but decided not to elicit her psychiatric history; the defense merely had Dr. Wicks testify about the effect of drug use on memory and paranoid delusions.

The defense sought to adduce evidence of four threatening phone calls Ceragioli made to her former lover, Geri Quintana, a year after the killing but during pendency of this case. In the first three phone messages, Ceragioli warned Quintana to stop trying to help Campaz, to stop “bad mouth[ing]” Ceragioli, and to keep Quintana’s new lover away from Ceragioli “or I will body bag your bitch ass friend.” The fourth call referred to putting three murderers away, taking revenge on the neighborhood, and smearing Wayne. The defense wanted the jury to hear that Ceragioli blatantly lied about the phone threats at the preliminary hearing until presented with a tape recording of the calls; that she admitted to a Mr. Montez that she lied at the preliminary hearing; that she tried to blame White; and that she had influence over witness Anthony Martinez.

The trial court ruled admissible only the last call (though the defense ultimately opted not to use it). The court excluded the other three calls under Evidence Code section 352. The court observed it sat through this evidence in the first trial and found it confusing, unduly time consuming, and of minimal relevance. The court excluded the Montez evidence because it was beyond the scope of the defense’s redirect examination, and the defense had failed to disclose the statement its investigator took from Montez.

On appeal, White acknowledges the trial court has discretion to exclude impeachment evidence under Evidence Code section 352 (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457), but White argues this discretion must bow to his federal constitutional rights to a fair trial and to present all relevant evidence of significant probative value, and he should get the benefit of any doubt. White claims the constitutional implications of the alleged error require application of the Chapman prejudice standard of harmlessness beyond a reasonable doubt.

White argues it was important to impeach Ceragioli because she reported admissions by White while she was working on his house. He argues prejudice is shown because the first jury deadlocked, and both juries rejected premeditation and weapon use. We disagree.

On appeal, White fails to address his failure to disclose the Montez statement. The phone calls were of minimal relevance, because they would not exculpate White. Indeed, the absence of prejudice (under any standard) is shown by the defense’s decision not to use the one phone call allowed by the trial court. White’s appellate brief says, “The defense later opted not to play this tape, perhaps because it referred to three murderers.”

We conclude exclusion of impeachment evidence does not warrant reversal.

5. Admission of Evidence of Duress Re Campaz

White contends the trial court erred in admitting unreliable reports of duress made by Campaz to Ceragioli which, even with a limiting instruction, assertedly denied White’s rights to due process and a fair trial. We reject the contention.

The defense wanted to adduce evidence that, during his restaurant conversation with Ceragioli, Campaz confessed to stabbing the victim, but the defense unsuccessfully tried to exclude other statements made in the same conversation, i.e., including that White used two knives. Later, the prosecution secured admission, for impeachment purposes, of a different conversation, in which Campaz said Montoya also stabbed the victim at White’s urging, and White threatened to stab Montoya and Campaz if they did not stab the victim. The court instructed the jury this latter conversation could be used only to assess believability of the restaurant conversation.

White argues this latter statement by Campaz about White threatening to stab him was erroneously admitted. White says it was not a declaration against Campaz’s interest; it shifted blame to White and portrayed Campaz as acting under duress. White says it was unfair to admit this “unreliable evidence the defense had no chance to cross-examine.”

The People respond the evidence was admissible under Evidence Code section 1202: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct.” The purpose of this statute is to assure fairness to the party against whom hearsay evidence is admitted without an opportunity for cross-examination. (People v. Corella (2004) 122 Cal.App.4th 461, 470.)

The trial court has broad discretion in controlling the scope of cross-examination and in ruling on the admissibility of impeachment evidence. (People v. Lancaster (2007) 41 Cal.4th 50, 102.) White argues that, although the Confrontation Clause is inapplicable to nontestimonial hearsay (Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224]), and assuming this holding applies to an offense predating it, admission of such “pivotal but grossly unreliable and untested evidence, from a man and woman probably already scheming to blame appellant and claim duress,” denied due process and a fair trial, requiring reversal under Chapman or Watson. We disagree.

Thus, a court’s proper application of rules of evidence does not ordinarily violate due process. (People v. Frye (1998) 18 Cal.4th 894, 945.) The appropriate question is whether admission of the evidence was so extremely unfair as to violate fundamental conceptions of justice. (Dowling v. United States (1990) 493 U.S. 342, 352 [107 L.Ed.2d 708, 720].)

Here, it was fair to admit the challenged statement, since its admission assured fairness to the party against whom hearsay evidence was admitted without an opportunity for cross-examination. The defense specifically chose to introduce Campaz’s statement against interest. It was fair and appropriate for the jury also to consider Campaz’s later statement in evaluating whether his statements at the restaurant were believable.

We conclude the evidence regarding duress affords no basis for reversal.

6. Defense Counsel’s Request to Testify

White claims the trial court erred in denying his trial counsel’s (1) request to testify about a conversation counsel had with Chacon, (2) motion to be relieved as counsel due to conflict, and (3) motion for mistrial -- which White claims denied him due process, a fair trial, the right to present defense witnesses, and the right to effective conflict-free representation. We see no basis for reversal.

a. Background

White’s trial counsel wanted to testify about a conversation he had in his office with Chacon before Chacon’s first statement to the police. Counsel wanted to testify that Chacon (by nodding or adoptive admission) implicitly admitted he helped White burn items; Chacon wondered whether he needed a lawyer; and Chacon said White did not admit to a “killing” but only that he “fucked up.” White also wanted to adduce impeachment evidence that, in a recent foundational hearing, Chacon misrepresented what was said.

The trial court gave detailed reasons in denying the motions, as follows:

White’s counsel would testify that he asked Chacon if White said he “killed” somebody, and Chacon said no, which would be inconsistent with what Chacon told the police. White’s counsel would also testify that he and Chacon had different accounts of their meeting, which the court viewed as a collateral issue.

The court said the timing of the defense disclosure of a conflict and mistrial motion was “troubling at best.” White’s counsel’s conversation with Chacon occurred three years earlier, and the court disbelieved the defense’s claim that there was no conflict until Chacon testified at the Evidence Code section 402 hearing. White’s denial of killing anyone became relevant as soon as Chacon told the police the opposite, and certainly by the time Chacon testified at the preliminary hearing and in the first trial, yet Chacon was not cross-examined about his conversation with Masuda, and the potential conflict in needing Masuda’s testimony was known in 2006, when another possible witness to the conversation (his secretary) died.

The court did not agree that Chacon’s silence, when counsel said Chacon helped burn the clothes, constituted an adoptive admission.

The trial court recognized White sought his counsel’s testimony to show Chacon was a liar, but “Chacon has already done that for himself. [¶]... [¶] He testified that he gave a version to police during the first interview that wasn’t accurate, [though he] refused to admit that by doing so, he had lied to officers. [¶]... [¶] During cross-examination, Mr. Chacon testified in front of this jury that he lied to law enforcement when he spoke with them. What better evidence is there that Timothy Chacon is a liar than Timothy Chacon essentially admitting that himself?” Accordingly, said the court, trial counsel’s testimony would be cumulative, which lessened its probative value.

The trial court recognized it had the option of allowing trial counsel to testify, with another lawyer representing White for the limited purpose of trial counsel’s testimony. However, the defense had not requested that option, and it would put trial counsel in the uncomfortable position of having to defend his own credibility, and it would put the jury in the uncomfortable position of having to judge the credibility of a lawyer’s testimony and at the same time listen to him as an advocate.⁹

9 We reject the contention in White’s reply brief that the trial court thus made a “preemptive” ruling against this option without affording White the opportunity to address it.

The trial court concluded, “in light of the fact that I think that [White’s counsel]’s testimony is cumulative, and it lessens its probative value, when comparing it to the result of a mistrial in order to allow its admission, I find that the prejudicial effect of a mistrial at this stage in the trial outweighs the probative value of the proffered evidence, and I hereby deny the defense request to have [White’s counsel] testify to such, and deny a motion to be relieved, or a motion for mistrial.”

b. Analysis

A defendant is not precluded from calling his trial counsel as a witness at trial. (People v. Earp (1999) 20 Cal.4th 826, 879.) However, whether a trial attorney should be allowed to testify during the trial depends on “an evaluation of all pertinent factors, including the significance of the matters to which the attorney might testify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established. [Citation.]” (People v. Dunkle (2005) 36 Cal.4th 861, 915, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

White cites cases about his right to conflict-free representation, and that conflict embraces all situations in which an attorney’s efforts on behalf of a client are threatened by his responsibilities. (People v. Clark (1993) 5 Cal.4th 950, 994.) White acknowledges he must demonstrate actual prejudice under the federal Constitution, but he invokes the more stringent California standard requiring reversal even for a potential conflict if the record supports informed speculation that the defendant’s right to effective representation was prejudicially affected. (Id. at p. 995.) However, the informed speculation standard was abandoned as amorphous, in People v. Doolin, supra, 45 Cal.4th at p. 421.)

Even assuming for the sake of argument that this situation could be characterized as a conflict between attorney and client, there was no prejudice under any standard. White argues that excluding his lawyer’s testimony impeaching Chacon worked a hardship on him. However, the trial court concluded the defense had already accomplished this impeachment in cross-examination of Chacon. White argues the jury needed to know that Chacon “all but admitted” helping burn the clothes. However, White offers no analysis on the law of adoptive admissions and fails to show any grounds for reversal in the trial court’s conclusion that Chacon’s silence did not constitute an adoptive admission.

White thinks the jurors needed to know that Chacon asked if he himself needed a lawyer. We disagree.

White argues the trial court failed to make adequate inquiry into the existence of a conflict between attorney and client, which would have compelled the court to grant the motion to be relieved as counsel. He cites People v. Jones (1991) 53 Cal.3d 1115, 1136-1137, for the proposition that the trial court must make an adequate inquiry and assure itself that the defendant voluntarily waives the conflict. However, he acknowledges that the failure to conduct such inquiry requires reversal only if the defendant demonstrates an actual conflict resulting in an adverse effect on counsel’s performance. (Id. at p. 1137.) Yet, White fails to show an actual conflict resulting in an adverse effect on counsel’s performance.

White argues that, to the extent his trial lawyer should have realized the conflict sooner, he rendered ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.) However, he offers no analysis. He says, “Deficiency and prejudice are apparent for reasons stated above and below” in his 105-page brief. And he says, “if counsel were somehow expected to divine the full conflict earlier, reasonable counsel would have done so and the omission prejudiced appellant at a live retrial; substitute counsel could always come up to speed on the case, but the evidence was lost forever in this trial.” This cursory statement is inadequate to demonstrate deficiency or prejudice.

We conclude White fails to show grounds for reversal relating to defense counsel’s request to testify and be relieved as counsel and motion for mistrial.

7. Jury Instruction Re Accomplices

White argues the trial court erred in failing to include Campaz as an accomplice in the jury instruction to view with caution an accomplice’s testimony; the instruction mentioned only Montoya as an accomplice. White does not show he requested such instruction but argues the court had a sua sponte duty. We see no grounds for reversal.

An accomplice is someone who is “liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) Although Campaz did not testify, “testimony” in section 1111 includes “all out-of-court statements of accomplices... used as substantive evidence of guilt which are made under suspect circumstances,” e.g., when the accomplice has been arrested or is questioned by the police. (People v. Brown (2003) 31 Cal.4th 518, 555.) Thus, where an accomplice’s statement is admitted at trial under a hearsay exception, the trial court should instruct the jury that the accomplice’s testimony must be viewed with caution and must be corroborated even though the accomplice does not take the stand. (Ibid.) The rationale for instructing the jury to view accomplice testimony with caution is the accomplice’s self-interest in shifting blame to the defendant. (People v. Cook (2006) 39 Cal.4th 566, 601.)

White observes there was evidence of statements by Campaz minimizing Campaz’s involvement and maximizing White’s involvement. The People respond that, in the retrial, it was the defense, not the prosecution, which first introduced Ceragioli’s testimony that at one point Campaz said he stabbed the victim. The People were entitled to elicit evidence of other statements by Campaz implicating White.

Even assuming error for the sake of argument, it was harmless because there is no reasonable probability that White would have received a more favorable result had the trial court instructed the jury to view Campaz’s statements with distrust. (People v. Lewis (2001) 26 Cal.4th 334, 371.) Thus, although White denied involvement in the killing, he admitted he was at the scene of the crime (he urinated in the restroom) and that he was angry and frustrated with the victim over borrowing the pickup and money owed for drugs. Even disregarding Chacon’s assertedly conflicted statements about whether White admitted “killing” anyone, Chacon testified White asked him for a ride to the river that morning; White was distraught and repeatedly said, “I fucked up” and “we fucked up.” At that time he would not explain but said it involved someone who owed him money and raped a girl. Marie Ceragioli testified to statements White made directly to her over the course of time as she performed construction work at his home after the killing, e.g., White told her he made a tape to “cover” himself, and he played for her the audiotape of Anthony Martinez confessing to the crime; White laughed as he played the tape for Ceragioli; White said he “punched” the victim with a spiked knife or weapon; White said he “stepped over the fool [the victim],” who was down on the floor, in order to use the toilet. This evidence amply corroborated accomplice Montoya’s testimony that White stabbed the victim.

We reject defendant’s undeveloped contention that his federal constitutional rights have been violated by a conviction which he believes may have rested on untested, blame-shifting statements of accomplice Campaz.

We conclude there was no prejudicial error in the accomplice instructions.

8. Jury Instruction Re Flight and Destruction of Evidence

White says the trial court erred in instructing the jury on flight (CALCRIM 372¹⁰) and destruction of evidence (CALCRIM 371¹¹) as evidence of consciousness of guilt. We shall conclude there was no error.

10 The jury was instructed, “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

11 The jury was instructed, “If the defendant tried to conceal or destroy evidence or create false evidence that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If someone other than the defendant tried to discourage someone from testifying or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”

As to flight, mere departure from a crime scene does not constitute flight; there must be a purpose to avoid being observed or arrested. (People v. Bonilla (2007) 41 Cal.4th 313, 328.) Here, there was evidence of a purpose to avoid being observed or arrested. Thus, White, Campaz and Montoya left the park in White’s blue truck, intending to drop off Campaz at the red truck. They stopped at the red truck, and Montoya opened the door, but upon seeing a police patrol unit, Montoya shut the door, and all three men rode away in the blue pickup.

White argues his conduct said nothing about degree of guilt, i.e., whether it reflected awareness of having committed a crime versus assistance as an accessory after the fact. However, White cites no authority that this distinction makes a difference. The lesson from White’s cited cases is that the flight instruction may be inappropriate if the defendant may have fled because of guilt in having committed a different offense, unrelated to the offense which is the subject of the current prosecution. (E.g., People v. Williams (1988) 44 Cal.3d 1127, 1143, fn. 9 [flight must support inference of consciousness of guilt of the crime charged]; United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1049.) Here, there was no evidence of a different offense as a reason for flight.

There was no error in giving the flight instruction.

As to instruction regarding destruction of evidence, the instruction is proper if there is some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference that the destruction of evidence may indicate a consciousness of guilt. (People v. Hart (1999) 20 Cal.4th 546, 620.) White says in his appellate brief that he “conceded driving his friends away and helping them destroy evidence.” His contention is that he may have been helping merely as an accessory after the fact. However, this was a matter for closing argument; it does not render the instruction improper.

We conclude the trial court did not err in instructing the jury on flight and destruction of evidence.

9. Jury Instruction Re Voluntary Intoxication

White argues the jury instruction on voluntary intoxication was inadequate, denying him due process and his right to a jury determination of all issues. He merely repeats Campaz’s argument on this issue, complaining the instruction said the jury “may,” not “must,” consider the evidence, and White “could well have been caught up” in the situation. As with Campaz, however, White fails to cite any evidence that his intoxication at the time of the offense actually negated a required intent or state of mind. We see no grounds for reversal regarding intoxication.

10. Cumulative Error

White claims the cumulative effect of the foregoing errors was to deprive him of due process and a fair trial by an impartial jury. We have reviewed the assignments of error and disagree.

11. Juror Identifying Information

Many modern criminal jury trials now have two phases. In the first phase, the jury determines whether the defendant is guilty. If the jury finds the defendant guilty, the second phase of trial commences: the trial of the jury.

Thus, White argues the trial court denied him due process by denying, without a hearing, his request under Code of Civil Procedure sections 206 ¹² and 237,¹³ for disclosure of personal juror identifying information. We see no basis for reversal.

12 Code of Civil Procedure section 206, subdivision (g), states, “Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.”

13 Code of Civil Procedure section 237 calls for the trial court to seal the record of personal juror identifying information upon the recording of a jury verdict in a criminal case, but the statute provides in subdivision (b), “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons, and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.”

a. Background

After the verdict in the retrial, White filed a petition for access to jurors’ personal identification information in order to determine if one or more jurors deliberately failed to disclose in their juror questionnaires information about their knowledge about drugs. White’s counsel attested that after the verdict, he was contacted by two jurors who said the issue of drug use came up during deliberations and “for the first time a number of jurors disclosed that they had close friends or relatives who were drug users.” The petition submitted a declaration from Juror No. 10 (the jury foreperson) attesting (1) her mother was a drug addict and alcoholic, but they have no contact with each other; (2) her sister was a drug addict who died while pregnant, perhaps because of an overdose; (3) she did not disclose this information before she was sworn in as a juror; and (4) Juror No. 9 said her brother was a drug addict and coincidentally ran into him outside the courthouse during the time the jury was deliberating.

The petition also submitted an unsigned declaration in the name of Juror No. 9, with attestation by White’s attorney that he confirmed the contents with her over the phone, and she also said other jurors made statements about relatives’ drug use which was not disclosed in voir dire.

The People opposed the petition, arguing White failed to make the necessary prima facie showing. The People submitted a declaration from Juror No. 10 (the second declaration) saying she met with White’s trial counsel at his request; she and Juror No. 9 (who felt bad for White) had become friends; she (Juror No. 10) did not lie on her questionnaire; she did not mention her mother or sister in the questionnaire because it asked about people she was “close to”;¹⁴ her mother abandoned her at age one and they had no interaction since then, except the mother made one phone call in the 1990’s but the juror hung up; and the juror was separated from her sister by age 5 and had no contact until the sister’s death. The juror’s information about the drug problems came from second hand sources rather than personal knowledge. Juror No. 10’s declaration also said she tried to add this information to the declaration prepared by the defense because that first declaration took things out of context and was incomplete regarding her relationship with her mother and sister. “Despite my requests, certain information was not added.” The defense investigator said the juror could add to the declaration by handwritten notation but she did not want to “mess up” the typed document. The declaration’s handwritten reference that the juror was signing of her own “free will” was added at the request of the defense investigator after becoming aware that Juror No. 10 had contacted the prosecution and related that the declaration left out information. The juror attested the prosecutor did not pressure her, nor did she tell White’s lawyer that the prosecutor pressured her. The prosecutor told her it was up to her whether or not to sign, but she should assure that anything she signed was accurate, and if her wishes were not being honored, she could contact the trial court. The only pressure the juror felt was from the defense investigator, who was upset that she called the prosecutor. She attested, “I signed the [first] declaration despite the fact that it took things out of context and was incomplete regarding my relationship with mother and sister because I was frustrated and I had told [White’s attorney] I would sign the document and I wanted to be true to my word.”

14 In the questionnaire, Juror No. 10 answered “no” to the questions: “Have you or anyone close to you ever had a serious problem with the abuse of drugs?” and “Have you or anyone close to you ever been impacted by someone’s use of drugs?”

Juror No. 10’s second declaration also said, regarding Juror No. 9, that Juror No. 9 simply said one day that she had seen her brother who was in court for a different case, and there was no discussion about it during deliberations.

Juror No. 10 also submitted a handwritten declaration to the court, understandably asking to be left alone.

The trial court denied the petition to release juror identifying information, stating there was no need for a hearing, and the defense failed to make a prima facie showing. There was no showing of misconduct in Juror No. 10’s questionnaire answers about not being close to drug addicts, because she was not close to her biological mother and sister. As to the assertion (in the unsigned declaration) that other jurors during deliberations admitted knowing drug users, the court first observed that five of the seated jurors admitted in their questionnaires that they knew drug users. The court also observed that seating jurors who knew drug addicts did not prejudice the defense but suited its purpose. “[T]he strategy of the defense in this case in part was to highlight the symptoms of excessive use of methamphetamine, including the lack of trustworthiness of persons or extensive users such as the several key prosecution witnesses in this case. [¶] So it appears in this -- the posture of the defense case was not so much an attempt to run away from the facts of drug users, or the credibility of drug users, but instead to embrace it was a weakness in the prosecution case.”

The trial court also observed that Juror No. 9 did disclose in the questionnaire that her brother was incarcerated for drugs. The court referred to statements in the unsigned declaration about Jurors No. 6 and No. 8 and said their questionnaires also disclosed knowing drug users. The record contains only excerpts of the questionnaires, and therefore the failure of the excerpts to bear out the court’s finding is not conclusive.

b. Analysis

Criminal defendants have a federal constitutional right to a jury trial free from serious juror misconduct. (People v. Tuggles (2009) 178 Cal.App.4th 1106, 1152[review den. Feb. 10, 2010]; Smith v. Phillips (1982) 455 U.S. 209 [71 L.Ed.2d 78].) However, we are unaware of any authority holding that the federal Constitution requires the disclosure of jurors’ personal identifying information, even upon a showing of a strong possibility of juror misconduct. (Tuggles, supra, 178 Cal.App.4th at p. 1153.) Nevertheless, “where the trial court is presented with a credible prima facie showing that serious misconduct has occurred, the trial court may order jurors to appear at a hearing and to answer questions about whether misconduct occurred.” (Ibid.) Thus, although Code of Civil Procedure sections 206 and 237 allow jurors to prevent the release of identifying information to the parties and their attorneys, they do not infringe upon the trial court’s inherent power to investigate strong indicia of juror misconduct, including issuance of subpoenas compelling reluctant jurors to testify. (Ibid.; People v. Cox (1991) 53 Cal.3d 618, 700.)

Here, there was no strong indicia of juror misconduct, and White failed to make a sufficient showing for release of jurors’ personal identifying information. His submission of Juror No. 10’s declaration in an attempt to show she committed misconduct fell short when Juror No. 10’s supplemental declaration placed things in context.

There was no evidence of misconduct by Juror No. 9, who did disclose in her questionnaire that her “brother is/was a [drug] user and has served time at a facility in Elk Grove.” She did not commit misconduct by accidentally seeing her brother in the courthouse or by mentioning to Juror No. 10 that he was a drug addict.

As to Juror No. 9’s unsigned declaration that Jurors No. 6 and No. 8 stated in deliberations that family members were drug addicts, White fails to disprove the trial court’s finding that these jurors did disclose this information in their questionnaires. Although the disclosures do not appear on the questionnaire excerpts submitted in connection with the petition, the trial court had access to the entire questionnaires.

As to Juror No. 9’s unsigned declaration that “[o]ther jurors disclosed for the first time in deliberations the fact that they had close family members who were addicted to drugs,” this statement on its face is outside the scope of Juror No. 9’s personal knowledge. While Juror No. 9 may have knowledge whether jurors disclosed something during verbal voir dire, she does not have knowledge of the contents of the other jurors’ written questionnaires. Her declaration does not assert that these other jurors made admissions in deliberations to having lied in the questionnaire. Thus, Juror No. 9’s unsigned declaration failed to make a prima facie showing requiring an evidentiary hearing.

White argues the trial court erred in concluding Juror No. 9 lacked credibility, without conducting a hearing. However, it is inconceivable to us that trial counsel would think a juror could be competent to attest that another juror omitted information in the questionnaire (unless the other juror made an admission, which was not the case here).

We conclude the trial court did not err or abuse its discretion in denying White’s petition for juror identifying information.

DISPOSITION

The judgment as to Carlos Tomas Campaz, Jr., is affirmed. The judgment as to John Douglas White is affirmed.

We concur: BUTZ, J., CANTIL-SAKAUYE, J.