Opinion
F072347
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL RIVERA, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM025095A)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Miguel Angel Rivera appeals his conviction for first degree murder and assault with a deadly weapon, with a gang special circumstance and gang enhancements. He contends the evidence is insufficient to support the gang special circumstance, gang enhancements, and first degree murder conviction. He also argues he was prejudiced by the gang expert's reliance on testimonial hearsay and by the erroneous admission of a prior robbery conviction. Finally, he raises several instructional errors and contends the errors were prejudicial, both individually and cumulatively.
We conclude the evidence is insufficient to support the gang enhancements and gang special circumstance. Accordingly, we reverse the true findings on these allegations. We do not address appellant's other challenges to these allegations. We reject appellant's remaining contentions.
We affirm in part, reverse in part, and remand for resentencing.
PROCEDURAL HISTORY
A jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a); count 1), and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). On count 1, the jury found true that appellant personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)), and also found true that he had committed the offense while an active member of a criminal street gang and did so to further the activities of the gang (§ 190.2, subd. (a)(22)). On count 2, the jury found true that appellant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) As to both counts, the jury found true that appellant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§§ 186.22, subd. (b)(1), (5); count 1, 186.22, subd (b)(1); count 2). Appellant admitted that he suffered a prior strike and prior serious felony conviction for robbery (§§ 211, 667, subds. (a)(1), (b)-(j), 1170.12, subds. (a)-(d), 1192.7, subd. (c)), and a prior prison term for the same offense (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise noted.
On count 1, the court sentenced appellant to life without the possibility of parole based on the gang special circumstance, plus five years for the prior serious felony, and one year for the use of a deadly weapon. On count 2, the court imposed the upper term of four years, doubled to eight years under the three strikes law, plus three years for the great bodily injury enhancement, 10 years for the gang enhancement, and five years for the prior serious felony, for a total term of 21 years, to be served consecutive to the term on count 1. The prior prison term enhancement was stricken. Appellant was sentenced to an aggregate term of life without the possibility of parole, plus 32 years.
FACTUAL BACKGROUND
I. Circumstances of the Stabbing
On the night of October 25, 2012, friends Guadalupe Alvarez, Ryan Williams, and Destinee Ornelas went to the Almond Tree bar in Atwater. They were taking selfies at the bar when they encountered appellant and his girlfriend, Cindy Maciel. Appellant started making gang signs behind the group, signing a "3," and telling them, "You guys need to throw this up." He also mentioned the town of Winton and asked the group where they were from.
Alvarez told appellant they were just there to have a good time and to leave them alone. Alvarez told appellant to back off two or three times, but appellant got in Alvarez's face and told him to shut up. Appellant then spat in Alvarez's face and Alvarez punched appellant. A fight ensued.
Alvarez and appellant began "tussling around." Williams was also involved in the tussle. At one point, a witness saw appellant holding a man by the shirt and hitting him in an underhand or uppercut motion. Eventually, approximately five people were wrestling on the floor, with bouncers and perhaps patrons trying to separate the fight. Appellant ended up standing over Alvarez, while Alvarez was on his back on the ground. Bouncers briefly held appellant back. At some point, Williams ran away.
Ornelas helped Alvarez off the floor. As they exited the bar, Ornelas noticed blood on her arm and lifted Alvarez's shirt. Alvarez had several stab wounds and blood was squirting out of his side. He did not previously realize he had been stabbed.
Meanwhile, Williams ran to a gas station next to the bar. He came into the store holding his stomach. He told the woman working there he had been stabbed and asked to be hidden because "they were going to kill him." The store clerk called 911 and Williams collapsed on the floor.
Appellant dropped a knife at the feet of a bystander on his way out of the bar. Maciel retrieved the knife and left hastily. Maciel and appellant were detained by law enforcement as they ran from the bar. Appellant had no visible cuts or bruising and showed no sign of injury.
The following afternoon, officers searching an embankment behind the bar found a folding knife with its blade locked in the open position. DNA consistent with Alvarez's and Williams's DNA was found on the knife. A stain on the sleeve of appellant's sweatshirt matched Williams's DNA profile.
Alvarez spent a week in the hospital. He had three stab wounds to his side, one of which entered his lung, and a stab wound on his back.
Williams died of multiple stab wounds. In addition to a shallow wound on his chin and a wound on his chest, Williams had a three and one-half inch deep stab wound on his right upper abdomen that injured the bowel and cut open the right iliac vein, which is a major vein draining into the leg. Williams also had a three-inch deep vertical stab wound on his left abdomen toward the back. He had a jagged cut on his left palm and wrist and superficial cuts clustered on his left forearm suggestive of defensive injuries. He did not have any injuries consistent with having thrown a punch.
Alvarez is six feet tall. Williams was five feet ten inches tall and weighed between 155 and 200 pounds. Appellant is five feet four inches tall and weighed 125 pounds.
II. Gang Expert Testimony
Merced Police Officer Mark Jenkins served as the People's gang expert. Officer Jenkins had 15 years' experience as a police officer, seven of which were served with the Merced Multi-Agency Gang Task Force. During that assignment, he observed the "lifestyle of the criminal gang member" and gathered knowledge about criminal street gangs by reading literature, attending specialized trainings, interviewing members of gangs in a variety of contexts, and investigating criminal gang activity.
Based on this knowledge, he testified that gang members identify themselves through hand signs, graffiti, certain clothing, and certain colors. If a gang member sees someone he does not know, he may initiate a verbal challenge to determine why that person is in the gang member's neighborhood. He explained that respect in gang culture equates to fear, i.e., "If you fear us, then we have power over you." Gang members can gain respect by committing a violent act, which shows loyalty to the gang cause. This violence does not necessarily involve gang rivals and can be directed against members of the general public. Such violence is used to control or run a neighborhood.
Officer Jenkins identified the Sureños as a criminal street gang. He explained that the Sureños have been in existence since the 1960s, when they split from other Latino gangs inside the prison system. "Sureno" is a term for southerner and the gang operates primarily in Southern California.
Officer Jenkins spoke with Sureños while working with the Gang Task Force in Atwater. He identified three cliques or subsets of Sureños operating in and around Atwater: A Town and Willow Street in Atwater, and Winton Barrio Parque in Winton. He explained that the Winton Barrio Parque subset also goes to Atwater.
He identified the primary activities of Sureños as murder, attempted murder, drug sales, assault with deadly weapons, assault, graffiti, tagging, and robbery. He based this conclusion on school visits, unspecified contacts, cases he worked on, conversations with other officers, and reports he reviewed. He characterized the Sureños as a violent gang and opined that an active member of the gang would understand and "seek out" the concept of respect through fear. This could include intimidating non-members.
Officer Jenkins was questioned regarding offenses committed by six individuals not involved in the events of this case. Officer Jenkins was asked whether he was familiar with the individuals and whether they were, in his opinion, members of the Sureño criminal street gang. Officer Jenkins answered both questions in the affirmative as to each individual. He did not know whether any of the individuals were members of the Winton Barrio Parque subset. As to two of the individuals and their offenses, he stated that he was familiar with the facts of the underlying case and had spoken with an officer on the case the day before his testimony. He identified the crimes committed by all six individuals—murder, attempted murder, assault with a firearm, and assault with a deadly weapon—as offenses contained within section 186.22, subdivision (e), and/or one of the primary activities or functions of the Sureño criminal street gang.
Officer Jenkins opined that appellant is a member of the Sureño criminal street gang. Jenkins had never talked to appellant and was not present when any officers interviewed appellant. Instead, his opinion was based on a review of documents. He explained that the Merced County parole office has appellant listed as a "documented Sureno gang member," and appellant had field contacts with officers in 2004 in which he admitted to being a Sureño. He also was stopped at an unspecified time with blue bandanas and a belt buckle with the letter W, and was at one point noted to have a tattoo of three dots on his knuckle. Officer Jenkins opined that the W stood for Winton Barrio Parque, and the belt buckle was to claim appellant's hood. Officer Jenkins explained that the tattoo of three dots refers to the number 13, which in turn refers to the 13th letter of the alphabet (M), which in turn refers to the Mexican Mafia, the prison gang that runs the Sureños. In addition to these indicia of Sureño membership, Officer Jenkins noted that appellant pled no contest to a robbery in 2005, and that robbery is an offense listed under section 186.22, subdivision (e).
The prosecutor presented Jenkins with general questions regarding circumstances akin to those alleged to have occurred here. Jenkins opined that an active Sureño would understand the concept of respect through fear and would seek out opportunities for intimidation consistent with that concept. He opined that intimidating members of the public could elevate the status of an individual gang member within the Sureño gang. If members of the public resisted such efforts at intimidation by telling the gang member to leave them alone, a Sureño would be expected to respond by "increase[ing] what's going on in order to try to instill that [fear]." In contrast, if the Sureño backed down in that circumstance, it would make the individual gang member and the gang look weak. Other gangs would find out about this and it would hurt the gang's reputation for violence.
In this context, escalation of the intimidation could include spitting at the non-gang member. If the non-member tried to defend him or herself, the active Sureño member would be expected to respond. If the non-member assaulted the Sureño, the Sureño would be expected to respond in kind, if not "increase it more." This could involve using a deadly weapon and could go as far as killing someone.
The prosecutor asked Officer Jenkins to assume that an active Sureño approached a group of people at a bar while throwing up gang signs and yelling Winton to represent his clique. Officer Jenkins was additionally asked to assume that the gang member is told by the group to leave them alone but continues his conduct and spits on a member of the group. That group member physically defends himself and the Sureño in turn stabs two members of the group a total of eight times.
Jenkins opined that, in these hypothetical circumstances, the crime would have been committed for the benefit of, at the direction of, or in association with the Sureño criminal street gang. He explained that by throwing the gang signs and stating Winton, the gang member was "identifying himself as a member of that gang." When gang members do that, they are hoping to get people to back down because " 'they know we're Surenos, they know we're from Winton.' " If someone does not back down and the Sureño turns away, the Sureño would be showing weakness. Instead, he would be expected to "increase what's going on to save face." He opined that this conduct would have been undertaken with the specific intent to promote the activities of the gang by gaining respect through fear.
Jenkins conceded that his initial report of this incident found insufficient evidence to support a conclusion that appellant's activities indicated gang involvement or that the crime was committed for the benefit of a criminal street gang. Jenkins then changed his mind about a month later after reviewing additional police reports.
III. Defense Theory
Appellant did not call any witnesses. Instead, defense counsel relied on the testimony of the People's witnesses to argue in closing that appellant had acted in self-defense and without the intent to kill. Defense counsel acknowledged that appellant and Alvarez had exchanged words, but argued that "something happened" that triggered appellant to spit at Alvarez, and that this caused Alvarez to "lash out." Defense counsel argued that appellant was justified in standing up for himself because he was getting pummeled by "close to 400 pounds of man" in a vicious attack where he ended up on the ground. Williams was necessarily "in on it" given that he was "close enough to [appellant] to get stabbed."
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
In reviewing the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cravens (2012) 53 Cal.4th 500, 507.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009), 46 Cal.4th 913, 919.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, at p. 508.) The standard of review is the same in cases in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625 (Clark).) This standard also applies to our consideration of the evidence supporting a gang enhancement. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
B. Gang Special Circumstance and Gang Enhancements
Appellant argues the evidence was insufficient to show an organizational connection between the Sureño gang and its various subsets, which he contends is required to establish the existence of a criminal street gang under People v. Prunty (2015) 62 Cal.4th 59 (Prunty). Separate from Prunty concerns, appellant contends that the gang expert's testimony was too conclusory to have any evidentiary value regarding the gang's pattern of criminal gang activity or appellant's intent to benefit or further the interests of the gang. Lastly, he argues the gang special circumstance must be reversed because there was no evidence that he was aware of the gang's primary activities.
As explained below, we conclude the evidence presented at trial was insufficient to support the true findings on the gang special circumstance and gang enhancements because Officer Jenkins's testimony regarding the predicate offenses was too conclusory to constitute substantial evidence. We therefore conclude that the true findings on these allegations must be reversed. We need not, and do not, address appellant's remaining challenges to the sufficiency of the evidence to support the gang allegations.
Nor do we address appellant's separate contention that the gang enhancements and gang special circumstance must be reversed because the jury was not instructed it had to unanimously agree on the particular gang appellant sought to benefit or further.
The gang special circumstance calls for a sentence of death or imprisonment for life without the possibility of parole if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) The gang enhancement provides for additional punishment when the defendant is convicted of a felony "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b).)
These statutes necessarily require proof of the existence of a "criminal street gang." (See People v. Vasquez (2016) 247 Cal.App.4th 909, 922; see also Prunty, supra, 62 Cal.4th at pp. 71-76.) A criminal street gang is "any ongoing organization, association, or group of three or more persons" that shares a "common name or common identifying sign or symbol"; that has as one of its "primary activities" the commission of certain enumerated offenses; and "whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' ([§ 186.22], subd. (e).)" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
Expert testimony is regularly used to establish elements of a gang allegation. (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.) Where such testimony has a reliable foundation, it is sufficient to establish elements of the gang special circumstance or gang enhancement. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330; People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) However, "the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510; see Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118 ["[A]n expert's conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate conclusion, does not assist the jury"]; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 ["[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based"].)
In Prunty, the gang expert's statements describing the Norteños as a "Hispanic street gang" were found insufficient to show the existence of a criminal street gang because they were "purely conclusory and essentially of no use to the fact finder." (Prunty, supra, 62 Cal.4th at pp. 84-85.) The gang expert did not articulate specific facts that would show the Norteños were a criminal street gang, nor did he describe the material he relied on in reaching his conclusion. (Id. at p. 85.) "Thus, his testimony on this point had no value to the jury." (Ibid.; see People v. Perez (2017) 18 Cal.App.5th 598, 608; see also People v. Ramirez (2016) 244 Cal.App.4th 800, 816; cf. People v. Sanchez (2016) 63 Cal.4th 665, 684 (Sanchez) (noting that "jury evaluation of the expert requires a direct assessment of the truth of the expert's basis" and that, absent competent proof of case-specific facts, the jury "simply had no basis" from which to draw a conclusion as to the truth and accuracy of the information on which the expert relied).
Similarly, in In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.), the court found insufficient the testimony of a gang expert who merely repeated what other officers had told him: "Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred." (Id. at p. 1003.) Instead, the court held, the prosecution was required to prove the elements of the enhancement with "competent evidence." (Id. at p. 1004.) Likewise, in In re Alexander L. (2007) 149 Cal.App.4th 605, the gang expert was asked about the gang's primary activities and responded by stating that he "kn[e]w" the gang had been involved in certain crimes. (Id. at p. 611.) However, he did not explain what information he relied on in forming his opinion. (Id. at pp. 611-612.) The court held that the expert's conclusory testimony could not constitute substantial evidence as to the gang's primary activities. (Id. at pp. 612-614.)
The foregoing cases demonstrate that, when the foundation for the gang expert's opinion is unclear, imposition of a gang enhancement or gang special circumstance is inappropriate. Based on this authority, we conclude that Officer Jenkins's opinion testimony in this case was insufficient to establish the existence of a criminal street gang. To establish the requisite pattern of criminal gang activity, the prosecutor questioned Officer Jenkins regarding six offenses committed by individuals unconnected to this case. The occurrence of the crimes, all of which qualified as predicate offenses under section 186.22, subdivision (e), was established through the admission of court records. However, the only evidence offered to establish that the offenses were committed by Sureño gang members was the opinion testimony of Officer Jenkins. As to each case, Officer Jenkins stated only that he was "familiar" with the individual and that, in his opinion, the individual was a member of the Sureño criminal street gang. No information regarding the source of his familiarity or the basis for his opinion was presented to the jury. This conclusory testimony was of no value to the jury in determining whether Sureños had committed the predicate offenses. The unsupported testimony does not constitute substantial evidence.
The People nonetheless suggest we should reject this claim on several grounds. First, the People contend that the argument is forfeited because it is in essence a challenge to foundation, and appellant did not object at trial that Officer Jenkins's testimony lacked foundation. A similar argument was posited by the dissent in Prunty. (Prunty, supra, 62 Cal.4th at p. 90 (conc. & dis. opn. of Cantil-Sakauye, C.J.) ["The issue is different when an expert's relevant and qualified testimony is admitted without objection or challenge, as was the case with Sample's opinion testimony. Under the circumstances here, it is inconsistent with the applicable standard of review for a reviewing court, in the absence of patent falsity, inherent improbability, or other reason to question its validity, to decide that Sample's testimony is incredible or without value."].) However, as already noted, the majority in Prunty found the expert's conclusory testimony insufficient to support the judgment, despite the lack of objection to foundation. (Id. at pp. 84-85.)
Next, the People contend that the testimony was not conclusory because Officer Jenkins's opinion was "necessarily supported by his extensive personal experience with Sureño gang members in the area, his years of work on the Merced Multi-Agency Gang Task Force, his regular review of reports on gang cases, and conversations with other officers." This experience was undoubtedly relevant to the jury's evaluation of Officer Jenkins's testimony. It informed the jury of Officer Jenkins's qualifications to render such an opinion and may have assisted in evaluating the credibility of that opinion and the weight to afford it. However, "California has long recognized that an expert's opinion cannot rest on his or her qualifications alone: 'even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.' " (People v. Wright (2016) 4 Cal.App.5th 537, 545.) Accordingly, " 'an expert's opinion based on assumptions of fact without evidentiary support ... has no evidentiary value.' " (Ibid.)
Finally, the People argue that, as to two individuals, Officer Jenkins testified that "he was familiar with the facts of the case and with the two defendants, having spoken to one of the investigating officers just the day before." This argument somewhat overstates the record. Officer Jenkins was first asked whether he was familiar with the individuals, to which he responded in the affirmative and without further explanation. He was then asked whether he was familiar with the facts of the underlying case involving these individuals and he again responded affirmatively, stating that he had recently spoken with one of the investigating officers. Again, however, none of the underlying facts were described to the jury. There is no basis in the record to suggest that the underlying facts implicated the individuals as Sureños, other than that the offenses are listed in section 186.22, subdivision (e). The People thus urge us to speculate that the facts of the case somehow implicate the individuals as Sureños, that the investigating officer conveyed those relevant facts to Officer Jenkins, and that those facts formed the basis of the opinion testimony. However, Officer Jenkins did not so testify, and these inferences cannot reasonably be deduced from the evidence. Instead, we are presented only with Officer Jenkins's vague reference to hearsay statements made by another officer. "Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred." (Nathaniel C., supra, 228 Cal.App.3d at p. 1003.)
In sum, the testimony of Officer Jenkins regarding the predicate offenses was too conclusory to be of any use to the fact finder. We therefore find the evidence insufficient to establish a pattern of criminal gang activity. Absent evidence of a pattern of criminal gang activity, the evidence is insufficient to establish the existence of a criminal street gang as required for both the gang special circumstance and the gang enhancements.
Given this lack of substantial evidentiary support, the gang special circumstance for count 1 and the gang enhancements for counts 1 and 2 must be reversed.
C. First Degree Murder
Appellant also argues there is insufficient evidence of premeditation and deliberation to support the conviction for first degree murder. He contends instead that the killing occurred during an unplanned and spontaneous bar fight. We find the evidence sufficient to support the judgment on this count.
First degree murder requires a finding of premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 25 (Anderson).) "Premeditated" means that the defendant thought about or considered the act beforehand. (People v. Pearson (2013) 56 Cal.4th 393, 443; People v. Perez (1992) 2 Cal.4th 1117, 1123 (Perez).) " 'Deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (Perez, at p. 1123.) " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' " (Pearson, at p. 443.) Premeditation and deliberation can occur rapidly. (People v. Thomas (1945) 25 Cal.2d 880, 900; People v. Cook (2006) 39 Cal.4th 566, 603.) "The true test is not the duration of time as much as it is the extent of the reflection." (Thomas, at p. 900.)
In Anderson, our Supreme Court found three factors—planning activity, preexisting motive, and manner of killing—to be relevant in evaluating the sufficiency of evidence of premeditation and deliberation. (Anderson, supra, 70 Cal.2d at pp. 26-27.) However, these factors do not " 'exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.' " (People v. Solomon (2010) 49 Cal.4th 792, 812.) They are simply intended to "aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." (Perez, supra, 2 Cal.4th at p. 1125.)
Here, there was substantial evidence of planning. Appellant came to the bar armed with a knife. From this, it is reasonable to infer that he " 'planned a violent encounter.' " (People v. Elliot (2005) 37 Cal.4th 453, 471; see People v. Lee (2011) 51 Cal.4th 620, 636; People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Additionally, while there, he verbally antagonized two substantially larger men and escalated the encounter by spitting on one of them. It is reasonable to infer that, by provoking this physical confrontation, appellant anticipated the possibility of using the knife in a two-on-one fight, and thereby " 'considered the possibility of homicide from the outset.' " (People v. Steele (2002) 27 Cal.4th 1230, 1250.)
There is also evidence of motive. The People's theory of motive turned on evidence of appellant's gang involvement. Evidence of gang membership can provide motive for murder. While this motive frequently arises in the context of gang rivalries, (People v. Gonzales and Soliz (2011) 52 Cal.4th 254; People v. Sanchez (2001) 26 Cal.4th 834, 849; People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002), Officer Jenkins's testimony provided sufficient basis for a juror to conclude that appellant's gang affiliation provided a motive to harm non-gang members in the context presented here. Appellant initiated the confrontation by throwing gang signs and asking the group where they were from. He persisted, despite being asked to leave them alone. He escalated the confrontation by spitting in Alvarez's face. Alvarez responded by throwing a punch, and appellant then responded by stabbing both Alvarez and Williams. Officer Jenkins testified that this type of conduct would reflect a gang member's motive to raise his status within the gang and instill fear of the gang within the community.
While Officer Jenkins's testimony was, as noted above, insufficient to establish the existence of a criminal street gang as required under section 186.22, subdivision (f), it was nonetheless sufficient to support a gang-related theory of motive, which does not require proof of predicate offenses committed by members of the gang.
Lastly, there is evidence in the manner of killing from which a reasonable juror could conclude that the killing was premeditated and deliberate. Appellant inflicted multiple, deep stab wounds to vital parts of Williams's body. (See People v. Blessett (2018) 22 Cal.App.5th 903, 950, review granted on other grounds Aug. 8, 2018, S249250 [parts of the body targeted by defendant showed a "cold, calculated, and deliberate effort" to end the victim's life]; People v. Koontz (2002) 27 Cal.4th 1041, 1080-1082 [firing shot at a vital area of the body evidenced deliberate intent to kill].) From these injuries, and considering the evidence of planning and motive, a reasonable juror could conclude that appellant acted with a deliberate and premeditated intent to kill.
The evidence is sufficient to permit a juror to find beyond a reasonable doubt that the murder was premeditated and deliberate. Accordingly, sufficient evidence supports the conviction for first degree murder.
II. Hearsay Evidence
While this appeal was pending, the California Supreme Court issued its opinion in Sanchez, supra, 63 Cal.4th 665, which announced changes in the law governing the use of hearsay in expert testimony. Appellant relies on Sanchez to claim error in the admission of hearsay regarding appellant's gang membership. He contends this testimony was prejudicial because there was no other evidence linking appellant to the Sureño gang or the Winton Barrio Parque subset, and there was therefore no admissible evidence of his gang membership. On the same grounds, he contends there was no admissible evidence to suggest the offense was committed to benefit a gang or further the gang's activities.
As discussed above, we have concluded that the gang allegations are insufficiently supported by the evidence and must be reversed. We therefore need not address whether any testimonial hearsay prejudiced appellant as to those allegations.
Nonetheless, Officer Jenkins's testimony was also relevant to the prosecution's theory of motive for first degree murder. While it is not entirely clear from the briefing that appellant challenges the effect of testimonial hearsay on this count, we conclude in any event that the claim lacks merit. Because the claim is meritless, we do not address the People's argument that appellant forfeited his opportunity to challenge the admission of testimonial hearsay by not raising this issue in the trial court.
A. Applicable Law
Until recently, experts could testify about out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert's basis testimony to be compliant with the hearsay rule and the federal constitution's confrontation clause. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
However, in Sanchez, the California Supreme Court determined that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule and the constitutional right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) "Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code." (Id. at p. 685.) However, if that hearsay is testimonial, the confrontation clause of the federal constitution is violated unless "(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, at p. 686.) Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698 [evaluating whether admission of testimonial hearsay is harmless beyond a reasonable doubt].) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Crawford v. Washington, 541 U.S. 36, 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) That standard requires us to evaluate whether the defendant has demonstrated that it is " ' reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Watson, 46 Cal.2d at pp. 836-837; People v. Hernandez (2011) 51 Cal.4th 733, 746 [holding that it is "the defendant's burden under Watson ... to establish a reasonable probability that error affected the trial's result"].)
B. Analysis
Officer Jenkins did not speak with appellant and was not present during any law enforcement contacts with appellant. Thus, his opinion regarding appellant's gang membership was not based on personal knowledge and instead appears to have been based entirely on hearsay.
The first information Officer Jenkins relied on in forming his opinion regarding appellant's gang membership was from the Merced County parole office, which "has [appellant] listed as a documented Sureno gang member." Officer Jenkins's testimony provided no further information regarding this record.
Officer Jenkins also testified that, during contacts with officers in the field in 2004, appellant admitted he was a Sureño gang member. Additionally, he was stopped at an unspecified time with blue bandanas and a belt buckle with the letter W, and was at one point noted to have a tattoo of three dots on his knuckle and possibly another tattoo of the letter "W." Jenkins did not explain the context of these contacts and it is unclear from the testimony whether all of this information was gathered during the field contacts in 2004. However, this evidence was also discussed during argument on motions in limine, when counsel for the parties discussed the People's intent to solicit testimony regarding two contacts in 2004 in which appellant admitted to being a Sureño gang member. In one of these, he was also noted to have a tattoo of three dots on his knuckles. The parties also discussed the People's intent to solicit testimony regarding a law enforcement contact that occurred in 2005 while appellant was being investigated for robbery. It was during this contact that appellant was found with blue bandanas and a "W" belt buckle.
From this discussion, it appears that the evidence of appellant's possession of blue bandanas and a "W" belt buckle was obtained from reports generated while appellant was under criminal investigation. Relayed by Officer Jenkins, these out-of-court statements are clearly testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 694 [hearsay obtained during official investigation of a completed crime is considered testimonial hearsay].) However, as the People correctly point out, the more difficult task is determining whether the field contacts or the parole office documentation constitute testimonial hearsay. Appellant did not object to Officer Jenkins's testimony on the ground it violated his right to confrontation, and the record on this point is therefore undeveloped. "Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay." (People v. Ochoa (2017) 7 Cal.App.5th 575, 584 (Ochoa).)
In the absence of a contemporaneous objection and a more fully developed record, we cannot conclude that Officer Jenkins's testimony regarding these contacts was testimonial hearsay. (Ochoa, supra, 7 Cal.App.5th at p. 585; see People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "].) Sanchez concluded that a field identification card describing a police contact with the defendant would be testimonial "[i]f the card was produced in the course of an ongoing criminal investigation." (Sanchez, supra, 63 Cal.4th at p. 697.) However, absent something in the record to suggest that the primary purpose of the officer's questioning was to target appellant for investigation or to establish facts for a later criminal prosecution, we may not simply assume that the field contact report is testimonial. (Ochoa, at p. 585.) Likewise, we have before us no information regarding the parole office's decision to list appellant as a "documented" Sureño gang member, and we cannot speculate as to whether this constitutes testimonial hearsay.
Nonetheless, even assuming all this evidence constitutes testimonial hearsay and was therefore erroneously admitted, we are convinced beyond a reasonable doubt that the error did not contribute to the jury's verdict on the murder charge. While the jury may have concluded that appellant harbored a gang-related motive for committing the murder, such a finding was overwhelmingly supported by other, properly admitted evidence. Significantly, appellant initiated the confrontation by asking the victims where they were from and by making hand gestures that were easily identified as gang signs. Alvarez testified, "He was throwing some type of gang sign. I'm not dumb, I know it's a gang sign. I know what it is." Officer Jenkins testified that gang members identify themselves using hand signs and may verbally challenge strangers they encounter in their neighborhood. He explained that gang members may commit violence against non-gang members to gain respect and control a neighborhood. On this record, any error in admitting testimonial hearsay regarding the specific gang to which appellant belonged was harmless beyond a reasonable doubt. (Ochoa, supra, 7 Cal.App.5th at pp. 586-588.)
In his reply brief, appellant points out that Officer Jenkins also testified that he learned information regarding two of the predicate offenses by speaking to one of the officers investigating that case. Claims omitted from the opening brief are generally waived. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) In any event, Officer Jenkins did not testify to the contents of that conversation and thus his testimony on this point did not contain hearsay. (Sanchez, supra, 63 Cal.4th at p. 685.) Furthermore, even assuming error, the admission of this evidence was harmless beyond a reasonable doubt because the predicate offenses had no relevance to the murder charge.
We therefore reject appellant's claim that he was prejudiced by the erroneous admission of testimonial hearsay.
III. Admission of Robbery Evidence
Evidence that appellant pled no contest to robbery in 2005 was admitted to show he was an active member of a criminal street gang. Appellant contends the court improperly overruled his objections to this evidence because the court did not weigh its prejudicial effect under Evidence Code 352 and the evidence was, in fact, unduly prejudicial.
Under Evidence Code section 352, evidence is inadmissible if the court determines its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) "Without doubt, evidence a defendant committed an offense on a separate occasion is inherently prejudicial. [Citation.] But Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. " 'Evidence is substantially more prejudicial than probative ... [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' " (People v. Tran (2011) 51 Cal.4th 1040, 1047.) The trial court's determination under Evidence Code section 352 is reviewed for abuse of discretion. (Clark, supra, 63 Cal.4th at p. 586.)
Appellant is incorrect in claiming that the court did not weigh the prejudicial effect of the robbery evidence. The court specifically stated, "My decision on [appellant's] prior contacts, in particular the robbery of 2005, I have evaluated it under Evidence Code 352 and find that the probative value is not substantially outweighed by the prejudicial effect ...." Reviewing this determination, we find no abuse of discretion.
The court stated that the conviction would constitute "part of the witness' opinion as to gang membership." Robbery is listed as a predicate offense under section 186.22, subdivision (e), and the evidence was therefore relevant to show appellant's active participation in the gang. We acknowledge that the probative value of the robbery evidence was relatively minimal, given that the robbery was distant in time and no details of the offense were admitted to suggest it was gang related. However, for these same reasons, the prejudicial effect of this evidence was likewise minimal. The court did not abuse its discretion in overruling appellant's objection.
Appellant also contends that the admission of his robbery conviction, along with the admission of testimonial hearsay, cumulatively contributed to the denial of a fair trial because this evidence permitted the prosecutor to argue that appellant was not defending himself but was instead acting to promote gang activities and consistently with the behavior of a gang member. Because we find no abuse of discretion in admission of the robbery conviction, we do not consider the cumulative effect of this evidence with any testimonial hearsay.
IV. Instructional Errors
Appellant argues that the court erred in failing to modify CALCRIM No. 3471, failing to instruct the jury on the doctrine of transferred self-defense, and failing to specifically instruct the jury that it could consider self-defense as to the assault count. He argues these errors were prejudicial, both individually and cumulatively. None of these challenges were raised below.
We apply the following general principles to appellant's claims of instructional error. " 'A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' " (People v. Livingston (2012) 53 Cal.4th 1145, 1165.) But no forfeiture will be found where the court's instruction was an incorrect statement of the law (People v. Hudson (2006) 38 Cal.4th 1002, 1012), or the instructional error affected the defendant's substantial rights (People v. Famalaro (2011) 52 Cal.4th 1, 35).
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We must ascertain the relevant law and determine whether the given instructions correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) " 'We presume that jurors understand and follow the court's instructions.' " (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
" '[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 906 (Covarrubias).) A defendant is entitled to relief from misleading, ambiguous, or incorrect instructions only if "there is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution." (Ibid.; Estelle v. McGuire (1991) 502 U.S. 62, 71.) Federal constitutional errors are reviewed under the harmless error standard set forth in Chapman, supra, 386 U.S. 18. "We must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831 (Merritt).)
" ' "[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' " (People v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran).) The Watson test " 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Id. at p. 956.)
A. CALCRIM No. 3471
The court instructed the jury as follows with CALCRIM No. 3471:
"A person who engages in mutual combat or who starts a fight has a right to self-defense only if:
"1. He actually and in good faith tried to stop fighting;
"2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting;
"AND
"3. He gave his opponent a chance to stop fighting.
"If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
It is undisputed that CALCRIM No. 3471 is an accurate statement of the law. Nonetheless, appellant contends that the court erred in failing to modify CALCRIM No. 3471 as follows: (1) removing the "mutual combat" section of the instruction; (2) specifically informing the jury that the instruction applied to imperfect self-defense; (3) clarifying the references to the initial aggressor and opponent; and (4) defining the term "fight." Despite extensive instructions on his defense theory, appellant argues that the trial court's failure to so modify the instruction violated his federal constitutional rights because the jury was "hampered" in its consideration of his claim of self-defense.
As we explain, there is no reasonable likelihood that the jury misapplied the instruction as appellant suggests. Failure to modify the instruction did not affect appellant's substantial rights, and we therefore agree with the People that these points were forfeited by appellant's failure to request modification of the instruction at trial. In any event, we find no prejudice.
1. Mutual Combat Definition
Appellant challenges the final paragraph of CALCRIM No. 3471:
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
Appellant argues this paragraph was inapplicable here because there is no evidence that he, Alvarez, and Williams agreed to fight. He contends the paragraph should have been excised from the instruction.
"[A]s used in this state's law of self-defense, 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities.... In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual." (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.) Consent to mutual combat may be express or implied. (Ibid.) However, the combatants must have "actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047.) The challenged portion of the instruction accurately states these principles.
Additionally, the challenged portion of the instruction was supported by substantial evidence. Appellant verbally antagonized Ornelas, Williams, and Alvarez and refused to leave them alone despite being repeatedly asked to do so. Instead, appellant "talked back" and eventually spat at Alvarez. From this conduct, the jury could have inferred that appellant was willing to engage in a fight and, indeed, had a preexisting intent to do so. Furthermore, in response to appellant's actions, Alvarez became angry and punched appellant. After that, "[t]hey were both fighting, they were both scuffling on the ground." According to Alvarez, appellant "[r]esponded back, we started fighting." On these facts, the jury could have concluded that both appellant and Alvarez formed an intent to engage in mutual combat before appellant's claim to self-defense arose.
Moreover, the jury was specifically instructed that mutual combat required a pre-existing agreement to fight. The jury was also instructed to disregard instructions it found factually inapplicable: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." We presume the jury is capable of understanding and correlating the court's instructions, and of disregarding an instruction if it finds the evidence does not support its application. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278 (Frandsen); People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Here, the prosecutor did not rely on a mutual combat theory in closing argument, instead arguing that appellant was subject to the limitations of CALCRIM No. 3471 because he was the initial aggressor. The jury expressed no confusion regarding these concepts and did not seek clarification of the instruction. There is nothing before us to suggest the jury was unable to reject the challenged portion of the instruction if it was determined to be inapplicable.
For these reasons, we find no reasonable likelihood that the jury applied the challenged language in a manner that violates the Constitution. (See Covarrubias, supra, 1 Cal.5th at p. 906.) Likewise, it is not reasonably probable that omitting the challenged language would have resulted in an outcome more favorable to appellant. (See Beltran, supra, 56 Cal.4th at pp. 955-956.)
2. Effect on Imperfect Self-defense
Appellant also challenges the paragraph of CALCRIM No. 3471 that addresses a sudden escalation in hostilities. The challenged language is as follows:
"However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or
communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
Appellant contends that the jury was not adequately informed that these principles could also apply to his claim of imperfect self-defense. He contends that an adequately instructed jury could have concluded that appellant initiated the fight by spitting, but then unreasonably perceived that the response from Alvarez and Williams threatened his life. In such circumstances, appellant would maintain the right to claim imperfect self-defense without having to attempt to retreat from the fight.
We conclude there is no possibility that the jury interpreted the instruction as appellant suggests. The court provided the jury with comprehensive instructions on first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, complete self-defense and imperfect self-defense. CALCRIM No. 3471, as given, refers generally to a defendant's right to self-defense. The instruction does not distinguish between complete self-defense and imperfect self-defense. We have no basis to conclude that the jury interpreted the challenged paragraph to pertain only to complete self-defense. Moreover, if a lack of specificity somehow led the jury to mistakenly conclude that this paragraph did not apply to imperfect self-defense, the jury necessarily would have concluded that the remaining references to "self-defense" throughout CALCRIM No. 3471 likewise did not apply to imperfect self-defense. In that circumstance, the jury would have evaluated appellant's claim of imperfect self-defense unencumbered by the limitations imposed by CALCRIM No. 3471. We therefore have no doubt that the jury would have reached the same result even if the instruction had been clarified in the way appellant suggests.
3. Identification of "Initial Aggressor" and "Opponent"
CALCRIM No. 3471 imposes limitations on the right of self-defense available to a person who "starts a fight." Appellant contends there is no evidence he started a fight with Williams, and the instruction therefore impermissibly allowed the jury to consider appellant the initial aggressor against Williams simply because he spat at Alvarez. Significantly, the jury was instructed that the person who "starts a fight" cannot rely on self-defense unless he endeavors to withdraw or his "opponent" responded with sudden and deadly force. However, according to appellant, the instruction also left unclear whether appellant's "opponent" was Williams, Alvarez, or both.
We first note that appellant's argument is premised on a theory that Williams was the initial aggressor against appellant. However, the facts regarding Williams's involvement in this fight are somewhat vague. A witness saw appellant holding a man by the shirt and punching him several times in an underhand or uppercut motion, and then saw the men go to the ground. Ornelas testified that Williams was "involved" in the fight and was "tussling around" on the floor with Alvarez and appellant. Alvarez did not recall Williams being on the ground with himself and appellant. A forensic pathologist found that Williams had only defensive wounds and no injuries consistent with having thrown a punch. Appellant himself was apprehended without any visible injuries. Based on these facts, it is unclear whether Williams intervened at some point in the fight between appellant and Alvarez, or whether he was a mere bystander at the time he was stabbed. Regardless, we have no basis to conclude that the jury was incapable of applying the instruction to these facts to determine whether appellant started a fight with Williams and whether Williams was his opponent. We presume the jury disregarded the instruction to the extent it was found inapplicable. (Frandsen, supra, 196 Cal.App.4th at p. 278.)
Additionally, the instruction did not preclude the jury from considering appellant's asserted defense, notwithstanding any underlying confusion regarding the identity of the opponent with whom appellant may have started a fight. Defense counsel argued that Williams and Alvarez responded jointly to appellant's spitting through a sudden and disproportionate attack that caused appellant to fear for his life. The jury was instructed that, "if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting." Thus, if the jury found that appellant started the fight by spitting at Alvarez, it then would have determined whether to credit appellant's claim that Alvarez's and Williams's combined response was such that it entitled appellant to respond with deadly force.
Finally, the jury convicted appellant of first degree murder. In so doing, the jury necessarily found that the killing was not only intended, but also premeditated and deliberate. The prosecution's theory of premeditation was based on appellant's alleged gang-related motives: appellant initiated the confrontation with Ornelas, Williams, and Alvarez to promote the gang and his status within it, and he escalated the confrontation to save face after Alvarez failed to back down. On the facts presented here, the jury's finding of premeditation and deliberation is inconsistent with appellant's claim that he acted in self-defense. (People v. Crandell (1988) 46 Cal.3d 833, 854 ["In concluding that no prejudice resulted from any of the claimed errors related to instructions on self-defense, we have considered, in addition to the specific factors previously mentioned, that the jury convicted defendant of the murder of [both victims] and that both murders were found to have been committed with premeditation and deliberation. These verdicts indicate a complete rejection of the evidence on which defendant relied to establish self-defense."], overturned on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364; cf. People v. Nguyen (2015) 61 Cal. 4th 1015, 1045 [" '[S]elf-defense is not available when a person does not act out of fear alone, but out of fear and a desire to harm the attacker.' "].) We do not think it reasonably likely that the jury's perception would have changed had the trial court clarified CALCRIM No. 3471 to define "the person who starts a fight" and "opponent." Any error in failing to clarify the instruction in this regard was therefore harmless.
4. Technical Meaning of the Word "Fight"
Appellant contends that the word "fight," as used in CALCRIM No. 3471, has a technical meaning that should have been included in the jury instructions. Specifically, he contends that the "fight" must be a "violent struggle" and not mere argument or taunting. He contends that the jury may have erroneously determined that he lost his right to self-defense because he initiated a verbal "fight."
"As a general rule, ordinary words do not require definition; they are presumed to be understood by the jurors." (People v. Jones (1971) 19 Cal.App.3d 437, 447.) When a word or phrase " ' "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." ' " (People v. Estrada (1995) 11 Cal.4th 568, 574-575.)
We agree with appellant that, generally speaking, a verbal argument may be characterized as a "fight" as that term is ordinarily used. We also agree that starting a verbal argument would not implicate the limitations on self-defense articulated in CALCRIM No. 3471. (See People v. Hecker (1895) 109 Cal. 451, 464 [discussing effect of unlawful act that is not felonious on right of self-defense].) However, there is no reasonable likelihood that the jury misinterpreted the instruction to limit appellant's right of self-defense merely because he verbally provoked the victims.
To the contrary, it is apparent from context that the word "fight," as used in CALCRIM No. 3471, refers to a physical fight. CALCRIM No. 3471 states that, before resorting to self-defense, a person who "starts a fight" must have "tried to stop fighting," indicated to his opponent that he "wanted to stop fighting" and "had stopped fighting," and given his opponent "a chance to stop fighting." The defendant then had the right to self-defense if the opponent "continued to fight." Additionally, if the opponent uses sudden and deadly force such that the defendant "could not withdraw from the fight," the defendant was not required to "try to stop fighting." The instruction also defines when a "fight" constitutes mutual combat. It is apparent from this usage that "fight" does not include a mere verbal argument. Additionally, the prosecutor argued that appellant started the fight by spitting at Alvarez, not by arguing or taunting him.
We find no reasonable likelihood that the jury misunderstood this term or that it would have reached a different result had the term "fight" been defined.
B. Transferred Self-defense Instruction
Appellant contends that the court should have instructed the jury on the doctrine of transferred self-defense. Transferred self-defense applies "where the act of self-defense, though directed towards an unlawful aggressor, inadvertently results in the death of an innocent bystander." (People v. Mathews (1979) 91 Cal.App.3d 1018, 1023 (Mathews).) Here, appellant contends that the jury could have concluded that, in defending himself against Alvarez, he inadvertently stabbed Williams. Appellant relies on Mathews for support.
In Mathews, the defendant attempted to kill someone who, under one theory of the case, was pointing a gun at her. She instead fatally shot the target's companion. (Mathews, supra, 91 Cal.App.3d at pp. 1022-1023). On appeal, she claimed that the trial court should have instructed, sua sponte, on the doctrine of transferred self-defense. (Id. at p. 1023.) The appellate court held that the defense is available in California, but that there was no sua sponte duty to instruct on the facts as presented. (Id. at pp. 1023-1025.) Neither party disputed that self-defense potentially insulated the defendant from liability for the homicide. Further, the trial court had given "a full complement of standard instructions dealing with self-defense, sufficient for the jury to resolve the issue of defendant's reasonable apprehension of loss of life or great bodily injury and her reaction thereto." (Id. at p. 1025.) Moreover, even though the self-defense instructions stated that "to qualify as a justifiable homicide, the 'person killed' must have been the unlawful aggressor," the instruction did not preclude the jury from finding the defendant acted in self-defense, since it did "not state that homicide is unjustified where the unlawful aggression of one results in the inadvertent death of another." (Ibid.)
Here, with respect to the murder charge, the jury was fully and accurately instructed on both complete self-defense and imperfect self-defense. Unlike in Mathews, neither instruction informed the jury that the person killed must have been the unlawful aggressor. To the contrary, both stated only that defendant must have believed, either reasonably or unreasonably, that he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against that danger. Nothing in the instructions precluded the jury from finding that appellant acted in self-defense when he stabbed Williams, irrespective of whether Williams was an innocent bystander or an aggressor. Nor did either party dispute that the jury could consider appellant's claim of self-defense, regardless of whether Williams was an unlawful aggressor. The prosecution simply argued that appellant was the initial aggressor and that, even if he was not, the evidence did not support the conclusion that he believed he was in danger of great bodily injury or that he needed to use deadly force to defend himself.
Accordingly, we find no error.
C. Self-defense Instruction on Assault Charge
Appellant argues that the court erred in failing to instruct the jury "that it could consider self-defense in determining whether appellant was guilty of assault with a deadly weapon."
The court provided the jury with comprehensive instructions on complete self-defense and imperfect self-defense as they related to the murder charge. In this regard, the court instructed the jury that "[t]he defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense." The same instruction explained that "[t]he defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend-against that danger." As noted above, the court also instructed the jury with CALCRIM No. 3471 on the theory of mutual combat. Finally, as to the charge of assault with a deadly weapon, the court instructed the jury that the People were required to prove that "[t]he defendant did not act in self-defense." The court did not, however, separately instruct on the law of self-defense as it pertains to assault.
Self-defense was appellant's primary defense theory at trial. It was vigorously argued by both parties during closing argument. Referring to CALCRIM No. 3471, the People argued that appellant was the initial aggressor and was required to attempt to stop fighting before he could resort to self-defense, given that Alvarez had not used "sudden and deadly force" against appellant. Alternatively, assuming appellant was not the initial aggressor, the People argued that the jury must still consider whether appellant's response was reasonable. The People argued that it was not.
Appellant's counsel argued that appellant was "talking about some gang stuff in a polite way" when "something happened" to cause appellant to spit at Alvarez. In response, Alvarez "got real aggressive" and attacked appellant. Defense counsel argued that Williams was "in on it," "backing up his brother." On these facts, counsel argued that appellant had the right to stand up for himself and that his response was reasonable.
The jury was plainly aware, both through the instructions and the arguments of counsel, that it was required to consider the application of self-defense to the assault charge. If the jury concluded that appellant was engaged in mutual combat or was the initial aggressor, the jury was required to consider his conduct as instructed under CALCRIM No. 3471, under which appellant was required to try to stop fighting unless he used only non-deadly force and was met with sudden and deadly force. On this point, the jury was adequately instructed.
However, in the event the jury either rejected the applicability of CALCRIM No. 3471 or concluded that appellant had met the threshold requirement of attempting to withdraw, the jury was without instruction on how to evaluate appellant's claim of self-defense against Alvarez. The only other self-defense instruction the jury received pertained to the murder count, which required the jury to find that appellant "reasonably believed that he was in imminent danger of being killed or suffering great bodily injury" and "reasonably believed that the immediate use of deadly force was necessary to defend against that danger." This is a higher standard than that required to assert self-defense for nonhomicide crimes, where the defendant must have only an actual and reasonable belief in the need to defend against an imminent danger of bodily injury, not great bodily injury or death. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) If the trial court had properly instructed the jury, it would have instructed on the elements of self-defense for nonhomicide crimes. (See CALCRIM No. 3470.) Instead, the instructions and arguments of counsel may have erroneously led the jury to believe that appellant could only claim self-defense on the assault count if he believed he was in imminent danger of being killed or suffering great bodily injury.
We are nonetheless convinced beyond a reasonable doubt that the jury would have rendered the same verdict absent the error. (Merritt, supra, 2 Cal.5th at p. 831 [applying Chapman standard of review].) The trial court's failure to adequately instruct on self-defense may be harmless if other aspects of the jury's verdict establish that the jury rejected the factual basis necessary for such a finding. (See People v. Lewis (2001) 25 Cal.4th 610, 646.) Here, as noted above, the jury found that appellant had murdered Williams with premeditation and deliberation. The only theory of motive offered to support a theory of premeditation was that appellant provoked the confrontation for the benefit of his gang and escalated to deadly violence to save face once Alvarez failed to back down. Again, this theory is inconsistent with appellant's claim that he stabbed Williams in self-defense. This same reasoning can be extended to appellant's assault on Alvarez. Appellant murdered Williams in the same continuous scuffle in which he also stabbed Alvarez. The injuries suffered by Williams and Alvarez were similar, involving deep stab wounds to vital organs in the torso. On these facts, it is simply inconceivable that the jury might have concluded that appellant murdered Williams with premeditation and deliberation while stabbing Alvarez in self-defense.
Accordingly, we conclude that the error in failing to instruct the jury on self-defense as applied to the assault charge is harmless beyond a reasonable doubt.
D. Cumulative Effect of Instructional Error
Appellant contends that the cumulative effect of the above-described instructional errors violated his right to a fair trial. However, we have found only one such error: the omission of a self-defense instruction particular to the assault charge. Accordingly, there is no cumulative effect to weigh.
DISPOSITION
The true finding on the gang special circumstance (§ 190.2, subd. (a)(22)) for count 1 and the true findings on the gang enhancements (§ 186.22, subd. (b)) for counts 1 and 2 are reversed. The sentence of life without the possibility of parole on count 1 is vacated. The case is remanded, and the trial court is directed to strike these gang-related findings from the judgment and to resentence appellant accordingly. The judgment is otherwise affirmed. The trial court is directed to prepare a new abstract of judgment.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
DESANTOS, J.