Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14102.
Mihara, J.
A jury convicted defendant Ivan Galvan of four counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664) and one count of shooting at an occupied motor vehicle (§ 246). Allegations that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and numerous firearm and great bodily injury allegations (§§ 12022.5, subds. (a) & (d), 12022.7, subd. (b), 12022.53) were also found true. Defendant was committed to state prison to serve an indeterminate term of 110 years to life consecutive to a determinate term of 40 years that included stayed three-year terms on each count (§ 186.22, subd. (b)(1)).
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that (1) there was insufficient evidence to corroborate accomplice testimony supporting his convictions; (2) there was insufficient evidence to corroborate accomplice testimony supporting the firearm and great bodily injury enhancements; (3) the trial court prejudicially erred in denying his motion for a judgment of acquittal (§ 1118.1); (4) the trial court prejudicially erred by failing to fully and adequately instruct the jury on a conspiracy theory of accomplice liability and on the natural and probable consequences doctrine; (5) his trial counsel rendered ineffective assistance by failing to object to instructional errors; (6) his trial counsel rendered ineffective assistance by calling Jaime Gomez as a defense witness; and (7) the trial court erroneously imposed stayed three-year prison terms on each count. We modify the judgment to strike the three-year terms on each count and as modified, affirm the judgment.
Defendant filed a petition for a writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas corpus petition by separate order.
I. Statement of Facts
A. The Confrontation and the Shootings
Around 2:00 a.m. on September 30, 2006, Julio Alvarez, Gerardo Sanchez, Jose Leal, and Julio Barbosa were at Denny’s Restaurant waiting for their food. Alvarez was wearing a red hat and a 49ers’ jersey, and Barbosa was wearing a red jacket. A group of “like five guys or six guys” wearing blue entered the restaurant, “looking at us like they wanted to hurt us.... They call it mean mugging....” “They... had shaved heads; they were wearing baggy clothes.”
The prosecution’s gang expert explained that the city of Santa Cruz is known as Sureño territory. Sureños associate with the color blue, while Norteños associate with the color red. The gangs are bitter enemies.
The group in blue asked Alvarez’s group why they were wearing red. “And then two guys... in the [next] booth... [said] they heard us saying... scraps....” “Scraps” is a derogatory term for Sureños. “And that made the confrontation come up, like, made it worse.” “[T]he heavy set guy said it’s all sur here.” After Alvarez explained that he was a 49ers’ fan, not “a gang banger, ” someone in the opposing group replied, “If you’re not a gang banger, then we have no problems.” He and Alvarez shook hands, and the group in blue “left through the front door.”
“Sur, ” which means “south” in Spanish, is a shorthand term for “Sureño.”
Alvarez’s group finished eating and left the restaurant. Sanchez was the designated driver of Alvarez’s Honda Accord. Alvarez sat with him in front, and Leal and Barbosa were in back, Leal on the left and Barbosa on the right. They had driven about 10 miles south on Highway 1 when Alvarez suddenly “heard a big pop... [a]nd the car started going out of control.” He saw that Sanchez had been shot in the head. Leal had also been shot in the head. Both survived.
B. The Initial Investigation and Defendant’s Arrest
Police found seven 7.62 millimeter bullet casings on the highway. That type of cartridge is standard for the AK47 and its precursor, the SKS. Crime scene investigator Deputy Joseph Mata testified that while 7.62 millimeter cartridges can also be fired from sporting rifles and hunting handguns, those are bolt action weapons. Mata concluded from the placement of the casings on the highway that a semiautomatic rather than a bolt action weapon had been used. The casings were found close together. Mata would not expect to find “many casings in a specific area, small area” from a bolt action weapon because “[i]t just takes too long... to... fire it, manually bring the bolt up, extract it and load another round.”
Department of Justice criminalist Greg Avilez examined the casings and determined that all seven had either been fired from or were “consistent” with having been fired from the same weapon, which he concluded was either an AK47 or an SKS. The weapon was never found. Defendant was arrested three days after the shootings.
Avila explained that although the condition of some of the casings precluded a definitive match with the others, “[t]hey all shared the same class characteristics. Some, however, lacked individual detail to make an identification.” “They were all consistent. Some were actually identified as being fired from the same weapon.”
C. Defendant’s Friends
1. Alex Solarzano
Solarzano testified that he and Ronnie Newton were at Denny’s with their dates after midnight on September 30, 2006, when he heard someone at the next table say “[s]craps.” Some at that table were wearing red. Solarzano was wearing blue, and he was “annoyed.” He talked to defendant by phone, and “told him not to show up.” He wanted to warn defendant “because of him being shot before” by Norteños. Soon after the call, Solarzano’s friends arrived, and he and Newton joined them at the cash register. People at the next table got up too, and words were exchanged. When Solarzano left Denny’s, he saw Gabby Moreno, Elvis Garcia, Gustavo Fabian, and Alfredo Salas outside. He thought he saw defendant too, but said he was not sure.
2. Emma Otts
Emma Otts was celebrating her birthday with Solarzano, Newton, and her friend Kaisha when she heard someone at the next table say “scraps.” Solarzano associates with Sureños, and “[h]e just looked mad when he heard that word.” She saw Solarzano make a phone call, and “a group of guys” arrived about 20 minutes later. “[P]eople at the table next to us got up and they were walking toward the group....” Solarzano and Newton joined them, and there was some sort of confrontation at the register. Solarzano and Newton returned to the table, and their group left. Later that morning, Solarzano called Otts and told her “not to say what happened at Denny’s” if police asked. She lied to police initially but eventually told them the truth. Otts did not recall telling Sergeant Steve Carney she had recognized “Chanate, ” her friend Christina Ramirez’s boyfriend, at Denny’s that night. “Chanate” is defendant’s street name.
3. Alfredo Salas
Salas used to live at a Santa Cruz apartment complex referred to as “the Browns.” He had heard rumors that someone there had an assault rifle. He had heard defendant talking about it. Salas had never seen the gun, but about two weeks before the shootings, he happened to look out his window and saw someone carrying an object wrapped in a blanket. He had seen others, including defendant, carrying the blanket-wrapped object, which he assumed was the gun.
Late on September 29, 2006, Salas was hanging out at the Browns, and defendant suggested going to eat at Denny’s. Salas, Fabian, Garcia, and Moreno rode in Eldad Vega’s car. The others entered the restaurant while Salas waited outside for defendant, who arrived alone in his own car. As the two walked toward the entrance, Salas saw a confrontation inside, which ended as he walked in. Outside, his friends described what had happened. Salas said “they were just talking about, ‘We should wait for them to come out and beat ‘em up, ’ I guess.” Somebody suggested “shanking” [stabbing] them and somebody asked about the “cuete” (gun), “something like... ‘Where’s the [gun]?’ ” Salas could not identify who had said what. “[E]verybody was just giving out opinions but I don’t know who.” “[T]hen everybody just... started leaving. First [Solarzano] left with his girls” and Newton. “[T]hen [defendant] left.” “[H]e took off with his car.” Vega left.
A little later, Vega and defendant came back in Vega’s car. Defendant was in the front passenger seat. Two others were in the back, but Salas did not recognize them. The car circled the parking lot and left. Salas did not know why they left or where they were going. He did not know defendant and Vega were going to follow the victims’ car.
Salas told the jury the front passenger was not Fabian. He agreed that Fabian and defendant both had short hair, were about the same height, and had the same build, but said, “It looked like Ivan.”
Salas, Garcia, Fabian, and Moreno remained in the back parking lot because they did not see Alvarez’s group leave the restaurant. Asked why he stayed there after Vega and defendant had left, Salas responded, “Because everybody was there.” Asked what they planned to do, he replied, “Jump ‘em. Beat ‘em up. I don’t know.” He had never done anything like that before. They waited in the back “for 10, 20 minutes.” Salas heard Garcia’s phone ring, but did not know who called him. Garcia told Salas, “ ‘Oh, they’re following.’ ” “He’s like, ‘Don’t worry. They said they’re already—they’re behind them, or they’re following them.’ Something like that.”
Salas and Garcia went to Garcia’s house. Around 4:00 a.m., defendant “came back with [Vega] and started bragging about what had happened.” Salas was “a couple of feet away” when defendant was telling Garcia “what had happened; that he had let a couple rounds out. And he saw through the rearview mirror that the car had slowed down.” “He said that he shot the car.” Salas said, “[Defendant] talked about it and I said, ‘Where’s the gun at?’ ” “He said he put it in the woods.”
Salas, Garcia, defendant, and Vega went back to Denny’s for breakfast. Salas said Vega looked “[s]hocked” and was “speechless.”
Salas saw Vega “like two, three days later; he was panicking.” “He didn’t want to get in trouble. He wanted to turn himself in.” Around the same time, Salas heard police were also looking for him. When they questioned him, he told them the truth. It seemed they already knew what had happened, so he decided to tell them what he knew.
The videotapes of Salas’ interview were played for the jury, and jurors were also given transcripts.
4. Eldad Vega
Vega pleaded guilty to two counts of attempted murder and agreed to testify truthfully in exchange for a 10-year prison sentence. He explained that he went to a party that Friday night, then drove defendant back to the Browns. Someone suggested they go to Denny’s. Vega drove, and Fabian, Garcia, Moreno, and Salas rode with him. Defendant took his own car. Inside, “[t]here were four guys....” “They thought we were Sureños and they started, you know, saying stuff.” Then, “it just ended.” Defendant and Salas walked in at that point, and then “[w]e all... just left.” In the parking lot, “somebody says, ‘Look, they’re on the phone.... They might be calling for back-up or something.’ ” Vega did not hear any talk about fighting, knifing, or shanking anyone.
Vega said defendant asked him for a ride to the Browns, “and I say, ‘For what?’ And he says... ‘You know, to get something.’ ” Vega knew defendant was referring to an AK47 because defendant had shown it to him days earlier. Vega drove defendant to the Browns and waited as he retrieved something wrapped in a jacket. Gomez and Allen Smutzer happened to walk by, and defendant “talk[ed] to them and they end up getting in the car.” Vega heard defendant tell them “there were some guys at Denny’s.” Defendant rode in the front passenger seat back to Denny’s. He told Vega where to park, then got out of the car without saying where he was going. Vega did not see anyone else there.
Defendant returned to the front passenger seat, and when the four guys they had argued with came out of the restaurant, he told everyone in the car to duck down. Defendant told Vega to follow their car. About then, Vega phoned Garcia “and was telling him that … we were following them.” Defendant told Vega, “ ‘When I tell you to speed up, speed up.’ ” Vega saw defendant reach into the back seat, then right himself in his seat. As Vega sped up, he saw defendant “turned out the window” and then he “heard the shots fired.” Vega “heard the clip going.” Defendant told Vega to take the next exit, and Gomez and Smutzer directed him to the Browns on back roads.
At the Browns, Gomez and Smutzer walked toward Gomez’s apartment, and defendant walked away with the gun. He returned without it, Vega parked his car, and Smutzer drove defendant and Vega back to Denny’s. Defendant and Vega then took defendant’s car to Garcia’s house. Vega heard defendant tell Garcia and Salas “something like, ‘We got him’ ” or “ ‘I got them.’ ” Defendant drove Vega, Salas, and Garcia back to Denny’s for breakfast. Vega went home to sleep, and later that day, he washed and vacuumed his car.
When Vega heard from a coworker that police were looking for him, he was “starting to get worried, ” but defendant assured him that the police did not know about him. Vega asked Gomez and Fausto Fuenes, who was living with Gomez at the time, to say he had been with them all night, and they agreed. Gomez told Vega he had moved the gun because he was “scared he might have touched it.”
Vega initially lied to police, but he realized he was “done” when they showed him Fuenes’ videotaped interview. Fuenes told police he had not seen Vega at all that night. Fuenes also reported that Vega had said, “ ‘We got ‘em. We got those fools’ or something like that.” Vega admitted making that statement.
Vega’s videotaped statements to police were played for the jury, and jurors were also given transcripts.
Vega identified defendant as the shooter and told police Gomez and Smutzer were in the back seat of the car. He identified two photographs of an AK47 that resembled the one defendant had shown him prior to the shootings and used that night. Vega was sure that was the kind of gun defendant had shown him.
5. Allan Smutzer
Smutzer admitted he was in the back seat of the car involved in the shootings. He sat behind the passenger, and Gomez sat behind the driver. Smutzer did not expect to be involved in a shooting; he thought they were going to a party. He never touched the gun that night, and neither he nor Gomez shot anyone.
Smutzer said Gomez asked if he wanted to go to a party. They got into someone’s car, and Smutzer, who claimed to have been “pretty drunk, ” fell asleep. “All I remember is that we drove and -- and we stopped somewhere. I don’t recall exactly where. And then after that I remember waking up to loud noises.” The noises “startled” and “surprised” him. Smutzer recalled telling police that when he heard a loud pop, the car lit up. He acknowledged telling police, “they lied to me that we were going to a party and they probably had that planned the whole fucking time.”
Smutzer claimed not to know who the front seat passenger had been, although he acknowledged telling police he thought he had seen him before. He acknowledged telling police he gave two guys who had been in the car a ride back to Denny’s. He acknowledged telling police that he saw the front seat passenger with two hands on the gun. He acknowledged that he did not want to identify the shooter. “Who would?” He acknowledged that he would “probably” put himself in danger if he ratted somebody out about a shooting.
6. Christina Ramirez
Ramirez was defendant’s girlfriend in September of 2006; they had been dating for almost five years. He was not with her between midnight and 6:00 a.m. on September 30, 2006. She lied to police about that “[j]ust simply because [he] told me to.” Defendant eventually told her he had been at Denny’s but said nothing else about that night. She learned about the shootings from others, and when she asked defendant, “he said he didn’t do anything.”
D. Other Prosecution Witnesses
1. Sergeant Mario Sulay
When Sulay interviewed defendant about 20 hours after the shootings, defendant initially insisted he had been with Ramirez. Defendant at first denied, but then admitted, getting a call from Solarzano. He eventually admitted having gone to Denny’s but denied involvement in any confrontation. He claimed the people involved in the confrontation were Watsonville Sureños whom he did not know. Sulay said defendant later admitted “they were actually people that he knew from Santa Cruz, and... they had arrived about the same time he did in a car. At that point he named them as... [Garcia, Moreno, ] Fabian and Oswaldo.” Sulay said the name “Oswaldo” never led to anyone; none of the others had heard it before. Police later learned that “Oswaldo” referred to Vega.
The videotapes of defendant’s interviews were played for the jury, and jurors were also given transcripts.
Although defendant was at Denny’s when the confrontation occurred, he did not appear on the videotape, which showed Solarzano, Garcia, and Fabian, who was initially misidentified as defendant.
Defendant told Sulay “that after the initial... altercation inside of Denny’s, he walked out, [his friends] walked out with him, and he overheard them saying such things as ‘They were mad dogging us, called us... “fucking scraps. Fuck those guys.” And they were going to go in there and either beat or shank them.’ ” Defendant claimed no knowledge of anything that happened after that, but admitted returning to Denny’s around 5:30 a.m. with Garcia, Salas, and “Oswaldo.”
Sulay developed “a pretty clear idea of... the timeline of... events” from the time stamps on the videotapes, the time stamp on a cash register receipt found in one of the victims’ pockets, and the 911 call. He confirmed that there would have been time for Vega to have driven defendant to the Browns and back between 2:27 a.m., when he and defendant drove away from Denny’s, and 2:58 a.m., when the victims left the restaurant. “I tried three different routes to and from, ... and all three routes are about six minutes.... [¶]... [¶] So six minutes one way, twelve minutes two ways.” There would also have been time, between 2:58 a.m. when the victims left the restaurant and 3:11 a.m. when the 911 call was placed, for Vega and defendant to have driven the 9.2 miles from Denny’s to where the shootings occurred.
Solarzano’s group arrived at Denny’s at 1:28 a.m. The victims arrived at 1:58 a.m., and defendant and Vega’s group arrived at 2:21 a.m. The confrontation occurred around 2:24 a.m. Vega’s group and defendant left at 2:27 a.m. The victims left at 2:58 a.m. The 911 call was received at 3:11 a.m. Defendant paid for breakfast with Vega, Salas, and Garcia at 5:50 a.m.
2. Detective Arnold Vasquez
Vasquez qualified as an expert in Santa Cruz County criminal street gangs. He explained that the city is claimed by two “closely aligned” Sureño gangs, Brown Pride Santa Cruz and Beach Flats Santa Cruz. The Browns is considered the home base and “a stronghold” of Brown Pride Santa Cruz. Vasquez described various predicate crimes that Sureño gang members had committed to promote the gang, and chronicled a number of gang crimes and activities that defendant had been involved in. He described defendant as a “recruiter” and an “older role model” for younger “up and comers” in the gang, and noted that high ranking Sureño gang members were in the courtroom during the trial to show respect and support for defendant and to “potentially intimidate” witnesses. Vasquez opined that defendant was an active Sureño gang member who committed the shootings for the benefit of the gang.
E. The Defense Case
1. Jaime Gomez
Gomez testified that Smutzer drove him home to the Browns around 1:30 a.m. on September 30, 2006, and some friends of Smutzer’s invited them to a party. He and Smutzer got into the back seat of a black car. Vega was the driver. Gomez sat behind Vega, Smutzer sat behind the passenger, and defendant sat between them. Gomez told the jury that the person in the front passenger seat, whom he described as an 18- or 19-year-old American-born Latino male with a shaved head, was someone he had never seen before. They drove to a house and the passenger got out, then returned to the car and said “okay, let’s go and continue partying.” Gomez claimed to have fallen asleep right after that “and then we were in Capitola.” He gave the driver directions from Capitola back to the Browns. “[Defendant] and [Smutzer] got out, and [Smutzer] gave a ride to [defendant].” Gomez said Vega drove off with the unidentified 18- or 19-year-old American-born Latino male.
Smutzer is six feet three inches tall and 280 pounds. He described Gomez as another “big guy” and told the jury, “I don’t know that three people would have fit in [the back seat of Vega’s Toyota Avalon].” Gomez is about five feet 10 inches tall and weighs 180 pounds, but claimed he was 40 pounds lighter in September 2006 “because of methadone.” Vega testified that “probably three small people” could fit in the back of his car. The car was brought to the courthouse, and the jury viewed it after Vega’s mother testified that it had been registered to her since she bought it used in August 2006, that she had sold it to her father in August 2007, and that it did not look as if anything had been changed since she had bought it.
Gomez did not recall telling police that Smutzer, who had been in the car with him, would remember more of what happened because he was more sober, although he conceded on cross-examination that Smutzer was more sober “because he was driving.” Gomez told the jury he never touched a gun that night. He never saw a gun in the car and never heard gunshots. He never told Vega he had moved the gun. The front seat passenger was not Fuenes. Asked if the shooter could have been defendant, Gomez responded, “I don’t know. I don’t think so. I don’t know.”
2. Elvis Garcia
Garcia went to Denny’s that night with Vega, Fabian, and Moreno. Defendant was not there. There was an argument with some guys wearing red “but it was just a misunderstanding, so I shook their hands” and after that, “everybody backed off.” Garcia did not hear any talk about jumping or “shanking” people. Garcia and Salas went to Garcia’s house, and Garcia fell asleep in the back yard until a phone call from defendant woke him up. “He wanted to eat and I was still hungry.” Vega and defendant showed up, and the four talked outside Garcia’s house. Garcia did not hear defendant say he had “let off a couple rounds.” He, Salas, Vega, and defendant went back to Denny’s for breakfast.
3. Angel Millan
Millan spent four years in the Marines where he received training in weaponry. He told the jury he had fired AK47 rifles “90 to maybe 150 times.” Millan opined that “it would not be an easy task” to fire one from a moving vehicle and hit another moving vehicle.
4. Dr. Peter Cahill
Dr. Cahill, a surgeon, provided post-operative care to defendant after he sustained a “potentially life-threatening” gunshot wound to the chest and an additional injury to his right forearm. Dr. Cahill first saw defendant the day after that May 14, 2006 shooting and found his condition “surprisingly stable.” It is “very uncommon” to survive a gunshot wound to the heart. Dr. Cahill opined that four and a half months after the surgery, he would expect a young man like defendant to be “[p]retty much 95 percent of where he was before.” Full recovery could take six months.
5. Terence Campbell
Campbell, a forensic psychologist, qualified as an expert in false confessions. He described maximization and minimization interrogation techniques and told the jury research has shown “that offering a deal and combining it with minimization increases the rate of false confessions.”
Campbell explained that maximization emphasizes the seriousness of the situation to the suspect. Minimization, on the other hand, “sends a message to the suspect... that... I can understand your situation, and... [w]hen you tell me what I want to hear I’m going to understand you on your terms and I won’t leap to negative conclusions about you as a person.”
6. Martin Jankowski
Jankowski, a professor of sociology at the University of California at Berkeley, qualified as an expert in Latino gangs. He opined that whether defendant was an active gang member “[c]ould go two ways, ” and whether the shootings were a gang crime was similarly ambiguous.
7. Character Witnesses
School employees Elizabeth Gonzalez, Donna Hamiel, Genene Oviatt, and Nereida Robles knew defendant from his school days and had never seen him act aggressively or violently.
F. Verdicts and Sentencing
The jury returned guilty verdicts on all counts and found the enhancement allegations true. Defendant was committed to state prison to serve an indeterminate term of 110 years to life consecutive to a determinate term of 40 years.
II. Discussion
A. Corroboration of Accomplice Testimony
Defendant contends there was not substantial evidence to support his convictions or the jury’s true findings on the firearm and great bodily injury enhancement allegations, which he claims were based entirely on uncorroborated accomplice testimony. He implicitly acknowledges that Vega’s testimony, if sufficiently corroborated, constituted substantial evidence to support the convictions and the findings on the enhancement allegations.
1. Standard of Review
In determining whether the evidence is sufficient to support a criminal conviction, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Under this standard, the court does not ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.]’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272.) “We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.” (People v. Wilson (2008) 44 Cal.4th 758, 806.)
2. Nonaccomplice Evidence Supporting Convictions
Defendant asserts that Vega was “the sole witness who directly identified [him] as the shooter, ” but since Vega was an accomplice, his testimony had to be corroborated. He concedes that “Salas’ testimony was corroborative, since he claimed that [defendant] bragged about the shooting....” However, Salas’ testimony could not corroborate Vega’s because Salas too was an accomplice, “either because he directly conspired to commit an attempted murder or because he conspired to commit a gang-related assault whose natural and probable consequence was an attempted murder.” Since “[t]here was no other evidence to corroborate Vega’s testimony, ” defendant concludes, the convictions “violated the Fourteenth Amendment’s due process clause and must be set aside.”
The Attorney General counters that because there was sufficient evidence apart from Salas’ testimony to corroborate Vega’s testimony, substantial evidence supported defendant’s convictions. We agree with the Attorney General’s position.
“An accomplice is... one 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.) “An accomplice’s testimony is not sufficient to support a conviction unless it is corroborated by other evidence connecting the defendant with the commission of the offense. [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 190.) “To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence, ’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice's testimony. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila).) “Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.]” (Avila, at p. 563.) “ ‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ ” (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) “[T]he corroboration need not extend to... every fact and detail contained in the testimony of the accomplice.” (People v. Rippberger (1991) 231 Cal.App.3d 1667, 1684.) “The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (Lewis, at p. 370.)
“ ‘A defendant’s own conduct, declarations and testimony may furnish adequate corroboration for the testimony of an accomplice.’ ” (People v. Williams (1997) 16 Cal.4th 635, 680; accord, Avila, supra, 38 Cal.4th at p. 563 [“Defendant’s initial attempt to conceal from the police his involvement in the activities culminating in the murders implied consciousness of guilt constituting corroborative evidence”].) Evidence of possible motives may also be corroborative. (People v. Zapien (1993) 4 Cal.4th 929, 981.) “[T]he entire conduct of the parties, their relationship, and their acts during and after the crime may be taken into consideration by the jury in determining the sufficiency of the corroboration of an accomplice’s testimony. [Citations.]” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1305.)
Here, there was much more than “slight” independent evidence to corroborate Vega’s testimony without relying on Salas’ testimony. It was undisputed that defendant not only concocted a false alibi but urged Ramirez to lie to police to support it. Defendant gave police other misleading information as well, insisting he had not spoken to Solarzano, trying to implicate Watsonville Sureños in the confrontation at Denny’s, and concealing Vega’s identity by claiming to know him only as “Oswaldo”—a moniker none of the others had ever heard. Defendant’s lies alone provided sufficient corroboration. (See People v. Santo (1954) 43 Cal.2d 319, 327 (Santo) [“False and contradictory statements of a defendant in relation to the charge are themselves corroborative evidence”]; People v. McLean (1890) 84 Cal. 480, 481 (McLean) [accomplice testimony sufficiently corroborated by evidence the defendant “made contradictory statements concerning his whereabouts on the night of the fire” and “took measures to get the accomplice to leave that part of the country”].)
Asserting that “[i]n gang investigations, lying to the police is, quite literally, the norm, ” defendant claims there is “little basis” for inferring that his lies to police demonstrated a consciousness of guilt and thus corroborated Vega’s testimony. He cites no authority, and we have found none, to support the proposition that unfavorable inferences cannot properly be drawn from a gang member’s lies. We note that such inferences were drawn in People v. Vu (2006) 143 Cal.App.4th 1009 (Vu), a gang case. (Vu, at pp. 1022-1023, 1030 [“By proving Vu was not at Triangle Square on the night of June 7, Chanh Nguyen’s testimony made Vu’s statements during the police interview corroborative evidence.”].)
In any event, there was additional evidence that tended to connect defendant to the shootings by suggesting a motive. (See People v. McDermott (2002) 28 Cal.4th 946, 986 [accomplice testimony corroborated by evidence that defendant had a motive to kill victim to obtain proceeds of life insurance policy and possession of house they owned in joint tenancy].) Numerous witnesses, including Ramirez and Vasquez, testified that defendant had been shot in the heart during a fight with Norteño gang members in May 2006. The jury could reasonably have inferred from this testimony that in addition to a gang-related motive, defendant had a strong personal motive for violent retaliation, and that among his friends, he had the strongest motive for the shootings. (See Vu, supra, 143 Cal.App.4th at p. 1022 [where defendant had been stabbed by rival gang members in earlier attack that killed his best friend, evidence establishing motive and opportunity and discrediting his alibi was sufficient to corroborate accomplice testimony].) There was also evidence of opportunity, which presented itself when Solarzano alerted defendant that “Norteños” at Denny’s were making insulting remarks. Defendant eventually admitted he went to Denny’s shortly after Solarzano telephoned him. Moreover, defendant told Vasquez that gang members would have perceived him as a “pussy” had he walked away from the confrontation without doing anything. This independent evidence was more than sufficient “ ‘to connect [defendant] with the crime in such a way as to satisfy the jury that [Vega was] telling the truth.’ [Citation.]” (Lewis, supra, 26 Cal.4th at p. 371.) Because Vega’s testimony was adequately corroborated, the jury could properly have relied on it to support defendant’s convictions. (§ 1111.)
3. Nonaccomplice Evidence Supporting Enhancements
Defendant contends that even if sufficient evidence supported his convictions, there was insufficient evidence to support the jury’s findings on the firearm and great bodily injury enhancement allegations. Defendant does not challenge the jury’s findings that, e.g., Sanchez suffered paralysis of a permanent nature, or that Sanchez and Leal suffered great bodily injury. The sole basis of his objections to each true finding is that “[s]ince neither Gomez, nor any other non-accomplice witness, corroborated that [defendant] was the actual shooter, the evidence was insufficient to support the enhancements.” We are not persuaded.
We have already determined that since Vega’s testimony was sufficiently corroborated by evidence independent of that provided by Salas or Gomez, the jury could properly have relied on it. Vega identified defendant as the shooter. Vega saw defendant “turned out the [front passenger side] window.” Defendant’s back was “facing the windshield, ” and both of his hands were on the gun. Vega heard the shots fired, and he also “saw the flash through [his] side vision.” “[I]t was kind of obvious that [defendant] had the gun in his hand.” “I mean, it’s kind of, you know, ... hard to miss that, and I heard the clip going.” At Garcia’s house soon after the shootings, moreover, Vega heard defendant say “something like, ‘We got him’ ” or “ ‘I got them.’ ” Substantial evidence thus supported the jury’s true findings on the personal use allegations.
To the extent defendant contends there was not substantial evidence to support the jury’s finding that he personally used an assault weapon in the commission of the attempted murder counts, we reject his contention. The AK47 and the SKS are semiautomatic assault weapons. (§ 12276, subd. (a)(1) & (11).) Forensic evidence supported the conclusion that a semiautomatic rather than a bolt action weapon had been used—a conclusion defense expert Millan agreed with. Vega’s testimony that he “heard the clip going” is consistent with a semiautomatic weapon.
Avila concluded that the weapon was either an AK47 or an SKS. Mata testified that he found no evidence inconsistent with an AK47 having been used. Defendant had shown an AK47 to Vega days or weeks earlier. Presented with photographs of different assault weapons, including an SKS, and asked to identify which one resembled the one that was used, Vega selected two photos of an AK47. Those photos resembled the gun defendant had shown him earlier. We conclude that substantial evidence supported the jury’s true findings on the challenged enhancement allegations.
B. Denial of Motion for Judgment of Acquittal
Defendant contends the court prejudicially erred in denying his motion for a judgment of acquittal (§ 1118.1) at the close of the prosecution’s case-in-chief. We disagree.
Section 1118.1 establishes a procedure for summary acquittal “of one or more of the offenses charged in the accusatory pleading” if, “at the close of the evidence on either side and before the case is submitted to the jury for decision, ... the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” (§ 1118.1.) “ ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ ” (People v. Stevens (2007) 41 Cal.4th 182, 200.) “ ‘Where the section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1213 (Cole).) “A trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ‘ “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” [Citations.]’ ” (Cole, at pp. 1213-1214.)
“We review independently a trial court’s ruling under section 1118.1 that the evidence is sufficient to support a conviction.” (Cole, supra, 33 Cal.4th at p. 1213.) “ ‘The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Defendant argues that “even if there was legally adequate corroboration for Eldad Vega’s testimony, that corroboration occurred only when Jaime Gomez testified during the defense case.” Since Gomez’s testimony was “off limits, ” he asserts, “there was no evidence, other than accomplice testimony, to corroborate Vega’s testimony” that defendant was the shooter. We have already rejected defendant’s argument that Vega’s testimony lacked sufficient corroboration, and our analysis did not rely on any testimony provided by Gomez. The only remaining question, then, is whether there was sufficient evidence at the close of the prosecution’s case to support defendant’s convictions.
1. Attempted Murder
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).) “[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) “Whether the defendant acted with specific intent to kill ‘must be judged separately as to each alleged victim.’ [Citation.]” (Smith, at p. 740.)
Here, Vega identified defendant as the shooter and the weapon as an AK47. He told the jury that defendant told him to follow the victims’ car and further instructed him, “ ‘When I tell you to speed up, speed up.’ ” As Vega sped up, defendant started shooting. Two of the victims were hit in the head; the other two escaped injury.
Forensic evidence confirmed that the casings found at the scene had been fired from a semiautomatic weapon, either an AK47 or an SKS. Crime scene investigators testified that the victims’ car was under fire for 700-800 feet, and at least six bullets hit it. The jury viewed photographs and other exhibits depicting the trajectory of the bullets, which demonstrated that the shooter began firing before the car in which he was riding was directly alongside the victims’ vehicle and continued firing after the car passed the victims’ vehicle. The pattern of the casings on the roadway was consistent with the shooter firing, re-acquiring his sight, firing again, re-acquiring his sight, and firing again. The pattern of broken glass on the highway was consistent with bullets entering the car through the windows on the driver’s side and exiting through the windows on the passenger side.
From this evidence, a rational jury could have concluded that defendant was attempting to hit his victims in the head and that he harbored the specific intent to kill all four of them. If the jury had the slightest doubt, we think the testimony of defense witness Millan would have dispelled it. The fact that defendant hit two of his four intended targets in the head under circumstances Millan characterized as difficult is strong evidence that defendant harbored the specific intent to kill. “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice.” (Smith, supra, 37 Cal.4th at p. 742.) “Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘ “in a manner that could have inflicted a mortal wound had the bullet been on target” ’ is sufficient to support an inference of intent to kill.” (Smith, at p. 742.) We conclude there was substantial evidence at the close of the prosecution’s case-in-chief “from which a rational jury could have found beyond a reasonable doubt that defendant had the requisite intent” to kill Sanchez, Leal, Alvarez, and Barbosa, and that he committed “direct but ineffectual act[s] toward accomplishing the intended killing[s]. [Citations.]” (Cole, supra, 33 Cal.4th at p. 1214; Lee, supra, 31 Cal.4th at p. 623.)
2. Shooting at an Occupied Motor Vehicle
Section 246 provides in pertinent part that “[a]ny person who shall maliciously and willfully discharge a firearm at an... occupied motor vehicle... is guilty of a felony....” (§ 246.) Shooting at an occupied motor vehicle is a general intent crime. (People v. Williams (1980) 102 Cal.App.3d 1018, 1029.) “ ‘As for all general intent crimes, the question is whether the defendant intended to do the proscribed act.’ [Citation.]” (People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) Section 246 “proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it.” (Ibid.) Here, where the prosecution presented evidence that defendant purposefully fired an assault weapon at the victims’ car, which was hit by at least six bullets, there was substantial evidence from which a rational jury could have found “ ‘ “the existence of each element of the offense charged.” ’ ” (Cole, supra, 33 Cal.4th at pp. 1213-1214.)
3. Enhancement Allegations
In the concluding sentence of his section 1118.1 argument, defendant summarily asserts that there was “legally insufficient evidence to support the convictions or enhancements at the close of the prosecution’s case....” (Italics added.) We disagree. As we discussed in section II.A.3, the prosecution presented substantial evidence, independent of any evidence provided by Salas or Gomez, from which a rational jury could have made true findings on the enhancement allegations.
Defendant does not challenge the true findings on the gang enhancement allegations. On the contrary, his briefs in this court refer to defendant’s group as “Sureño gang members” and as “the Sureño group.”
The trial court did not err when it denied defendant’s section 1118.1 motion.
C. Instructional Error
Defendant contends the trial court prejudicially erred, in violation of his Fourteenth Amendment right to present a defense, by failing to fully and adequately instruct the jury on the theories by which it could find that Salas was an accomplice, specifically, the conspiracy theory of accomplice liability and the natural and probable consequences doctrine.
1. Background
The court instructed the jury pursuant to CALCRIM No. 335 that Vega was an accomplice as a matter of law and that his testimony required corroboration. The court instructed the jury pursuant to CALCRIM No. 334 that before it could consider the testimony of Salas, Smutzer, or Gomez, it had to determine whether they were accomplices, that is, persons “subject to prosecution for the identical crimes charged against the defendant.” The standard instruction in effect at the time explained in relevant part that “[s]omeone is subject to prosecution if he... personally committed the crime or if: [¶] 1. He... knew of the criminal purpose of the person who committed the crime; [¶] and [¶] 2. He... intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crimes[;] [or] participate in a criminal conspiracy to commit the crime)....” (CALCRIM No. 334 (2008 ed.), italics added.) The court omitted the italicized language referring to criminal conspiracy. Defendant concedes that his trial counsel “did not specifically object to CALCRIM No. 334 as given... [or] request that the court include the conspiracy theory in its accomplice instruction.” Defense counsel did not request instruction on the natural and probable consequences doctrine, and none was given.
The court gave CALCRIM No. 334 (Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice) as follows: “Before you may consider the testimony of Alfredo Salas, Alan Smutzer, or Jaime Gomez as evidence against the defendant, Ivan Galvan, regarding the crimes of attempted murder and shooting at an occupied motor vehicle or any lesser offense, you must decide whether Alfredo Salas, Alan Smutzer, or Jaime Gomez was an accomplice to those crimes. A person is an accomplice if he is subject to prosecution for the identical crimes charged against the defendant. Someone is subject to prosecution if he personally committed the crime or if (1) he knew of the criminal purpose of the person who committed the crime and (2) he intended to or did, in fact, aid, facilitate, promote, encourage, or instigate the commission of the crimes. [¶] The burden is on the defendant to prove that it is more likely than not that Alfredo Salas, Alan Smutzer, or Jaime Gomez was an accomplice. You will note that this is the only issue on which the defendant has any burden of proof in this case. In all other issues in the case, the prosecution has the burden of proof beyond a reasonable doubt. [¶] An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he is present at the scene of a crime even if he knows the crime will be committed or is being committed and does nothing to stop it. A person who lacks criminal intent but who pretends to join in a crime only to detect or prosecute those who commit that crime is not an accomplice. [¶] A person may be an accomplice even if he or she is not actually prosecuted for the crime. If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his testimony as you would that of any other witness. If you decide that a witness was an accomplice, then you may not convict the defendant of attempted murder and shooting at an occupied motor vehicle or any lesser offense based on his testimony alone. [¶] You may use the testimony of an accomplice to convict the defendant only if (1) the accomplice’s testimony is supported by other evidence that you believe (2) that supporting evidence is independent of the accomplice’s testimony and (3) that supporting evidence tends to connect the defendant to the commission of the crimes. Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes. And it does not need to support every fact about which the accomplice testified. On the other hand, it is not enough that the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice. Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining [it] with care and caution and in light of all the other evidence.”
Defense counsel’s passing reference to the doctrine during colloquy does not, in our view, constitute a request that the court instruct on it.
2. Analysis
a. Criminal Conspiracy
Defendant contends that since there was “plenty of evidence that [Salas] participated in a conspiracy to bring about an attempted murder, ” the court erred by not fully instructing the jury, sua sponte, on that theory of accomplice liability. Without expressly arguing the point, he also suggests that the court should have instructed the jury that Salas was an accomplice as a matter of law. “Should this Court disagree, ” he asserts, “then... it was up to the jury to determine [Salas’] accomplice status.” He claims the court’s omission of the conspiracy language from CALCRIM No. 334 prevented the jury from fully considering the issue.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) The court is required to instruct on a theory of the case only if it is supported by substantial evidence. (People v. Beardslee (1991) 53 Cal.3d 68, 87 (Beardslee).) “Yet the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.” (People v. Wade (1959) 53 Cal.2d 322, 334-335 [failure to instruct on second degree murder not error where theory “was so far under the surface of the facts and theories apparently involved as to remain hidden from even the defendant until the case reached this court on appeal”], disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 321, 382.) If the evidence is minimal and insubstantial the court need not instruct on its effect. (People v. Kaurish (1990) 52 Cal.3d 648, 696 (Kaurish) [lesser included offense instruction not warranted by the evidence].)
“A criminal conspiracy exists where it is established that there was an unlawful agreement to commit a crime between two or more people, and an overt act in furtherance of the agreement. [Citation.] To sustain a conviction for conspiracy the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense. [Citation.]” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) It is not “necessary in proving a conspiracy to show a meeting or express agreement of the alleged conspirators. The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and proved by both direct and circumstantial evidence. (People v. Calhoun (1958) 50 Cal.2d 137, 144.) Evidence that a person was in the company of or associated with one or more other persons alleged or proved to have been members of a conspiracy is not, in itself, sufficient to prove that such person was a member of the alleged conspiracy. [Citations.]” (People v. Profit (1986) 183 Cal.App.3d 849, 882.)
“Whether a person is an accomplice within the meaning of section 1111 is a factual question for the jury to determine in all cases unless ‘ “there is no dispute as to either the facts or the inferences to be drawn therefrom.” [Citation.]’ [Citation.] Thus, a trial court can determine ‘as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are “clear and undisputed.” [Citations.]’ [Citation.]” (Avila, supra, 38 Cal.4th at p. 565.)
Here, it cannot be said that Salas’ culpability as a participant in an uncharged conspiracy was “ ‘ “clear and undisputed.” ’ ” (Avila, supra, 38 Cal.4th at p. 565.) There was not substantial evidence that Salas conspired “to bring about an attempted murder.” Nor was there substantial evidence that, as defendant contends, Salas “openly discussed committing a shooting or a stabbing, and... personally brought up the subject of the gun and its whereabouts.” (Italics added.)
Salas was outside in the parking lot when the confrontation inside the restaurant occurred. Afterwards, his friends related what had happened. There were “six of them, plus [Newton] and [Solarzano]” outside. Apparently describing what Solarzano or Newton told the group, Salas told police “[t]hey talked about it. It was like— [¶]... [¶]... ‘They were calling you guys scraps, when you were about to come in.’ ” “[T]hey were just talking about, ‘We should wait for them to come out and beat ‘em up, ’ I guess.” Salas heard someone say, “it was like, ‘Should I stick him?... I heard ‘stick him.’ ” But Salas was not the one who suggested stabbing the victims. “I was in my own little world, I guess.”
Salas heard someone mention a cuete—a gun. “I just heard, ‘[quettay].’ ” “Something like that. ‘Where’s the [quettay]?” He could not remember who asked that question. “That’s the thing. I don’t—I can’t remember. Like, I—seriously, I can’t remember....” After police suggested that the surveillance system at Denny’s was an audio/visual system that had recorded everything that had been said that night, that mention of the gun was “clear” on the audiotape, and that the voice on the tape sounded like his voice, Salas reiterated that he did not know who asked about the gun. “I heard... [quettay], but I don’t know who said [it].” As police continued to maintain that it was his voice on the audio, only once did Salas equivocate, stating, “I probably [said] it.” But he immediately corrected himself when police followed up with, “So it’s your voice on there?” “I’m not going to say it was my voice, but probably—I don’t know.” At trial, Salas testified that he heard someone talking about the gun. “I don’t know who said it.”
There is no evidence in the record that the video surveillance system at Denny’s included an audio component. No one else testified that Salas asked where the gun was (or said anything at all) when the group gathered briefly outside the restaurant. Garcia did not hear any talk about jumping or “shanking” people. Vega did not hear any talk about fighting, knifing, or shanking anyone. Apart from Salas’ own equivocal statement, which he immediately recanted, we find no support for defendant’s assertion that Salas “was an active participant in a discussion about shooting or stabbing the people inside Denny’s.”
On the contrary, there was substantial evidence to support a conclusion that Salas was unaware of defendant’s plans until defendant bragged about the shootings afterwards. When Salas saw Vega and defendant drive through the parking lot, he did not know where they were going or what they intended. He did not know they were going to follow the victims’ car. He and the three who were “posted up” with him did not even know that the victims had left the restaurant. They waited another 15 to 20 minutes because “[w]e didn’t see them walk out.” “We stayed there thinking they’re still there.” Salas told police he “couldn’t believe it” when defendant bragged that he had “ ‘let out a couple rounds’ ” “[b]ecause I didn’t think he would do something like that” “[o]r say something like that.” “I was just like, ‘Fuck!’ I was just... I can’t believe that. That he actually—” “Yeah, like, ‘Fuck.’ ” “Because I didn’t thought [sic] he was going to do something like that.” “After I read the newspaper, I believed him.”
“ ‘An accomplice must have “ ‘guilty knowledge and intent with regard to the commission of the crime.’ ” [Citation.]’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 467.) Substantial evidence that Salas harbored such intent was lacking here. Thus, it cannot be said that the facts regarding his criminal culpability were “clear and undisputed.” It follows that the trial court properly declined to instruct the jury that Salas was an accomplice as a matter of law, and instead left the determination of his accomplice status to the jury. (Avila, supra, 38 Cal.4th at p. 565.)
Nor did the court err in omitting the criminal conspiracy language from CALCRIM No. 334. (Kaurish, supra, 52 Cal.3d at p. 696 [where evidence is minimal and insubstantial, the court need not instruct on its effect].) The court was not required to instruct on that theory of the case because, as we have explained, there was not substantial evidence to support it. (Beardslee, supra, 53 Cal.3d at p. 87.)
b. Natural and Probable Consequences Doctrine
Defendant contends that even if Salas did not conspire to commit the attempted murders, there was substantial evidence that he “conspired to commit some lesser, non-lethal attack of which the shooting was a reasonably foreseeable consequence.” Thus, defendant argues, the trial court “additionally erred in failing to instruct the jury on the natural and probable consequences doctrine.” The Attorney General responds that the court had no sua sponte duty to instruct the jury, but even if there was error, it was harmless since there was sufficient evidence in the record to corroborate both Vega’s and Salas’s testimony. We agree that any error was harmless.
The natural and probable consequences doctrine provides that one who knowingly aids and abets criminal conduct can be found guilty not only of the intended criminal conduct but also of any other crime the perpetrator commits that is a natural and probable consequence of the intended crime. (E.g., People v. Ayala (2010) 181 Cal.App.4th 1440, 1449 [gang member’s second degree murder conviction upheld where he intended to aid and abet assault with a baseball bat].) A request for an instruction on the doctrine should be granted “when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendant’s confederate was a ‘natural and probable consequence’ of the specifically contemplated target offense.” (People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman).) Absent a request, however, there is no sua sponte duty to instruct on the doctrine where the prosecution is relying on the testimony of potential accomplices to prove the defendant’s guilt. (People v. Gonzales (2002) 99 Cal.App.4th 475, 485.)
We need not determine whether the trial court erred in failing to instruct the jury on the natural and probable consequences doctrine because even if it did, the error was harmless. (See People v. Gordon (1973) 10 Cal.3d 460, 470-471 [analyzing failure to instruct on the law of accomplices under the Watson standard], disapproved on another ground in People v. Ward (2005) 36 Cal.4th 186, 212.) “[A] conviction will not be reversed for failure to instruct on these principles [i.e., that accomplice testimony must be corroborated] if a review of the entire record reveals sufficient evidence of corroboration. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 966 (Frye), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
People v. Watson (1956) 46 Cal.2d 818.
In Avila, the defendant argued that the trial court’s instructions on accomplice liability were incomplete because the court failed to instruct the jury that two witnesses might be considered accomplices based on the natural and probable consequences doctrine. (Avila, supra, 38 Cal.4th at pp. 567-568.) The court held that “the lack of an instruction on the natural and probable consequences doctrine as it might relate to [those two witnesses] did not prejudice defendant in any way because their testimony... was sufficiently corroborated by independent evidence of [the] defendant’s guilt.” (Avila, at p. 568.) Here, as we have already determined, there was ample independent evidence to corroborate Vega’s testimony that defendant was the shooter.
In our view, there was also ample independent evidence to corroborate Salas’ testimony. Salas testified that when Vega and defendant showed up at Garcia’s house after the shootings, he heard defendant brag that he had “let a couple rounds out.” “He said that he shot the car.” Defendant concocted a false alibi and urged his girlfriend to lie to police to support it. As previously discussed, he gave police other misleading information as well. Defendant’s lies alone provided sufficient corroboration for Salas’ testimony. (Santo, supra, 43 Cal.2d at p. 327; McLean, supra, 84 Cal. at p. 481. Additionally, there was evidence of opportunity, and the jury could also reasonably have inferred that defendant had the strongest motive for the shootings. (See Vu, supra, 143 Cal.App.4th at p. 1022.) Because Salas’ testimony was adequately corroborated, the jury could properly have relied on it as well as Vega’s to support defendant’s convictions. (§ 1111.) Thus, even if the court erred in failing to instruct that Salas might be considered an accomplice under the natural and probable consequences doctrine, that error was harmless. (Avila, supra, 38 Cal.4th at pp. 567-568.)
c. Claimed Constitutional Error
Defendant contends that here, “the error was more than just a state law procedural violation; it also deprived [defendant] of his fundamental Fourteenth Amendment right to full instruction on his theory of the case.” The California Supreme Court has rejected this argument. (Lewis, supra, 26 Cal.4th at p. 371 [“Notwithstanding defendant’s citation of federal and state Court of Appeal cases, we have observed that ‘[n]o cases have held failure to instruct on the law of accomplices to be reversible error per se.’ [Citation.]”]; People v. Arias (1996) 13 Cal.4th 92, 143 [“[T]here is no merit to defendant’s claim that the failure to give accomplice instructions violated his right to due process under the Fourteenth Amendment of the United States Constitution.”].)
We reject defendant’s claims of instructional error.
D. Ineffective Assistance of Counsel
Defendant claims his trial counsel rendered ineffective assistance by failing to object to the trial court’s instructional errors and by calling Gomez as a defense witness.
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) The court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct.” (Strickland, at p. 690.) “Judicial scrutiny of counsel’s performance must be highly deferential” and “every effort [must] be made to eliminate distorting effects of hindsight....” (Strickland, at p. 689.) When counsel’s conduct can reasonably be attributed to sound strategy, a reviewing court will presume the conduct was the result of a competent tactical decision, and defendant must overcome that presumption to establish ineffective assistance. (Ibid.)
“Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, supra, 466 U.S. at p. 687.) “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Strickland, at p. 694.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [¶] In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.” (Ibid.)
A court deciding an ineffective assistance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. (Strickland, supra, 466 U.S. at p. 697.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.” (Ibid.)
1. Failure to Object to Claimed Instructional Error
Defendant contends his trial counsel rendered ineffective assistance by failing to object (1) when the court omitted the conspiracy language from CALCRIM No. 334, and (2) failed to instruct on the natural and probable consequences doctrine. We disagree. As we have determined, the court did not err in omitting the conspiracy theory of liability from CALCRIM No. 334. Therefore, any objection would properly have been denied. “Representation does not become deficient for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463.) It follows that counsel’s failure to object did not render his performance deficient. (People v. Samayoa (1997) 15 Cal.4th 795, 848.)
With respect to the natural and probable consequences doctrine, we have determined that because there was ample independent evidence to corroborate the testimony of both Vega and Salas, any failure to instruct on that doctrine was harmless. (Frye, supra, 18 Cal.4th at p. 966 [“a conviction will not be reversed for failure to instruct on these principles if a review of the entire record reveals sufficient evidence of corroboration. [Citations.]”]; Avila, supra, 38 Cal.4th at p. 568.) Therefore, defendant’s claim fails for lack of prejudice.
2. Gomez
Defendant contends that his trial counsel “directly undermined” the defense by calling Gomez as a witness. He argues that in a case like this one, where defendant relied “not on any justifications, excuses, or affirmative denials, but simply on the weakness of the prosecution’s case, ” there was nothing to be gained by eliciting testimony that placed defendant inside the car from which the shots were fired. We disagree.
As defendant acknowledges, “[t]he two key points in Gomez’s testimony were that a fifth person was... in the car, and that the fifth person occupied the front passenger seat, from which (according to other witnesses) the shooter fired.” Vega, Salas, and Smutzer, testifying for the prosecution, had collectively identified defendant as the front-seat passenger—the shooter. Gomez’s testimony contradicted the prosecution’s story, putting defendant in the back seat. Gomez told the jury that the person in the front passenger seat was someone he had never seen before. Gomez’s testimony thus set up defense counsel’s closing argument that there was no “real” (i.e., DNA, gunshot residue, or fingerprint) evidence, just constantly changing stories, “[a]nd so you were put... into a situation where at the most you can say... ‘Maybe [defendant] did this.’ ” But, defense counsel continued, “maybe... Gomez shot the gun. Or maybe... Smutzer shot the gun. Or maybe there was another individual in the car, as... Gomez told you, who actually shot the gun. I don’t know. Do you?”
Gomez’s testimony allowed defense counsel to argue that the mysterious fifth person responsible for the shootings could have been any number of people: Fuenes, whose fingerprints were found on the car door frame; Fabian, who “sure looks like [defendant];” Sagar Patel, whose red Mercedes had been used in an earlier drive-by shooting; Moreno, whom Patel claimed borrowed his Mercedes on the night of the earlier drive-by; or “some guy named Diablo that we don’t have much information on.” Counsel painted this mysterious fifth person as one whom common sense dictated you do not rat out. “That guy is scary and he is dangerous and he is going to come after you and shoot you because he shoots people.” Instead of identifying the real shooter, defense counsel argued, Vega and Salas “ratted out” defendant, “the smallest individual in the car” and someone they professed not to be afraid of.
Vega testified that he sometimes drove Fuenes to and from school and had done so on the Friday before the shooting. Jack Alcantera, the investigator for the defense, did not dispute that statement, and admitted that he had never heard anyone say that Fuenes was in the car on September 30, 2006. “No, that’s right, other than the fingerprints, that’s all we know.” Vega testified that Fuenes was not there that night.
Sulay told the jury he was aware of no information suggesting Fabian was in the car when the shootings occurred.
We think the decision to call Gomez as a witness was a reasonable tactical choice. As defendant concedes, Gomez’s “testimony might well have been exculpatory.” He argues that in retrospect, however, it was so “implausibl[e]” that it added nothing to the defense case. But we do not examine the record retrospectively. Instead, we view it “at the time of counsel’s conduct, ” making “every effort... to eliminate the distorting effects of hindsight....” (Strickland, supra, 466 U.S. at pp. 689-690.) We conclude that the decision to call Gomez as a witness did not render defendant’s trial counsel’s performance deficient.
E. Sentencing Error
Defendant contends, and the Attorney General concurs, that it was error for the trial court to impose three-year concurrent terms, pursuant to section 186.22, subdivision (b)(1), on each count. We agree. “[S]ection 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang.” (People v. Lopez (2005) 34 Cal.4th 1002, 1004, italics added.) Here, where the trial court imposed section 186.22, subdivision (b)(5)’s minimum parole eligibility provision, it was error to impose additional three-year enhancements pursuant to subdivision (b)(1). (§ 186.22, subd. (b)(1) & (5); People v. Herrera (1999) 70 Cal.App.4th 1456-1465.) We will strike the stayed three-year enhancements. (People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486.)
III. Disposition
The judgment is modified to strike the concurrent three-year terms on each count (§ 186.22, subd. (b)(1)). The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.