Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. VA078402 Robert J. Higa, Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Conrad Quezada.
Walter R. Urban for Defendant and Appellant Jose Luis Gonzalez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellants Jose Luis Gonzalez and Conrad Quezada belonged, respectively, to a gang and a tagging crew in the Hollenbeck/Boyle Heights area. They drove with their guns and some confederates to Pico Rivera, intending to avoid detection while they committed violent crimes that would enhance their reputations. They attacked a group of unarmed people who stopped at the minimarket (store) of a gas station to buy beer for a birthday celebration. Appellants are shown on video from a surveillance camera in front of the store. They both fired handguns. Two people were killed. Two others were shot in the stomach, but survived. Two others were fired at, but the shots missed. Afterwards, the surviving victims and other eyewitnesses identified appellants as the two shooters. The witnesses also identified Richard Lopez, appellant Gonzalez’s fellow gang member, as the driver of a Ford Expedition (Expedition) that was at the gas station.
Lopez was not charged with appellants. Appellants were both convicted of two counts of first degree murder, a multiple-murder special circumstance, and four counts of attempted premeditated murder, with true findings on firearms and criminal street gang allegations. For the two murder counts, they were both sentenced to 100 years to life imprisonment without the possibility of parole. Additional lengthy determinate sentences were added for the remaining counts. The People elected not to seek the death penalty.
Appellants contend (1) there is insufficient evidence to support their convictions; (2) one of the theories on which the prosecution relied was incorrect; (3) admission of DNA evidence violated their right of confrontation; and if that issue was waived, they were denied their right to the effective assistance of counsel.
Appellants join in each other’s arguments, to the extent applicable.
We find no prejudicial error and affirm.
FACTS
1. Prosecution Evidence
About 10:00 p.m. on April 12, 2003, Alfredo Rodriguez celebrated his birthday by going to a nightclub in Pico Rivera with Amador Guzman, six other men, and two women. Later that night, Rodriguez and Guzman became the two murder victims.
We will sometimes refer to the group of people as “Rodriguez’s group.” None of its members belonged to a gang. To protect the surviving eyewitnesses and intending no disrespect, we will refer to the murder victims by their last names and use first names for most of the members of Rodriguez’s group. The two women in the group were Rodriguez’s wife and her female cousin. Four of the men, Arnoldo V., Baldemar V., David V., and Jose G., were the victims on the attempted premeditated murder counts. Appellants did not shoot at Eduardo V., Victor C. or the two women. Most of the surviving members of the group testified at the trial.
Jose was sometimes called Juan, Arnoldo was sometimes called Arnold, and Baldemar was sometimes called Junior. We use the names they gave for themselves before they testified.
The members of Rodriguez’s group were in two cars that night, a GMC Sierra truck (the truck) and a Ford Taurus (the Taurus). They stayed at the nightclub, drinking and dancing, for almost three hours. They left at closing time, around 1:45 a.m. They decided to drive to the store of a nearby gas station to buy beer.
Jose, the youngest man in the group, drank no alcohol that night as he was only 18 years old. At closing time, four of the men in his group waited for Jose at the driveway of the nightclub while Jose walked behind the nightclub, alone, to get the Taurus. While Jose was sitting in the Taurus with the windows down, waiting to leave, he saw an Expedition in front of him. A group of men approached the male driver of the Expedition, later identified as appellant Gonzalez’s gang cohort Lopez. Jose had not noticed any of the men inside the nightclub. One of them, later identified as Gonzalez, made a gesture at his waistband and said, “Fuck Chili Fries.” Lopez did not respond. The group of men walked away.
Jose did not know the meaning of the sentence he heard. Evidence later in the trial showed that Gonzalez had a gun at his waistband, and he was referring in derogatory terms to a gang that was the rival of his gang, in the Hollenbeck/Boyle Heights area.
When Jose returned with the Taurus, the four men entered the Taurus. The rest of Rodriguez’s group was waiting nearby in the truck. The Taurus followed the truck a few blocks to a brightly lit ARCO gas station that had a store.
On the south side of the store, there were two islands with gas pumps. We will call the island closest to the store the No. 1 island and the island closest to the street the No. 2 island. The truck and the Taurus parked at the No. 2 island.
The male members of Rodriguez’s group got out of the Taurus and the truck. The two women stayed inside the truck. Jose, the 18-year-old, stood outside the truck, keeping the women company. David walked to the restroom on the side of the gas station. The other men walked to the store. As they did so, they passed an Expedition at the No. 1 island.
From his position at the No. 2 island, Jose observed that the Expedition looked like the one he had seen outside the nightclub. Two women got out of it. A Chevrolet Impala (the Impala) drove up. Appellants came out of the Impala, leaving three men inside it. Appellant Quezada’s head was shaved. Jose realized that appellant Gonzalez was the same person who made the “Fuck Chili Fries” statement outside the nightclub. Appellants walked toward the Expedition. Jose’s view was then blocked by the gas pumps.
The men of Rodriguez’s group who entered the store found out that it was too late to buy beer. As they walked back toward their vehicles at the No. 2 island, they saw that the Impala was parked five to seven feet behind the Expedition at the No. 1 island. They also saw appellants standing in the space between the two vehicles.
We summarize each witness’s description of what happened next, as different people saw different portions of the incident.
A. Jose
Jose observed that the two women who had been in the Expedition were standing outside near the door of the store. As the men in Rodriguez’s group left the store, one of them, Arnoldo, said two or three words to the women. The women laughed. Jose thought Arnoldo had given the women “a good compliment.” Some of the men in his group walked between the Expedition and the Impala, where appellants were standing. Appellants “kept looking at every single one of them that passed by.” Eduardo, one of the men in Rodriguez’s group, said, “What are you looking at?” Either appellant Gonzalez or Quezada stated, “What are you looking at, bitch?” Quezada then suddenly punched Eduardo. Gonzalez pulled out a chrome revolver. The three men who had stayed inside the Impala were now outside of it. Eduardo and another member of Rodriguez’s group, Victor, ran across the street. The other members of Rodriguez’s group started retreating to their vehicles after they saw Gonzalez’s gun.
Appellant Quezada suddenly rushed at and punched Arnoldo, who “was already halfway inside the truck.” Men started running toward the front of the truck and fighting with each other. Rodriguez had already rejoined the two women from his group inside the truck. He then left the truck and wrestled with appellant Gonzalez for Gonzalez’s gun. Gonzalez placed the gun at Rodriguez’s torso and fired. Rodriguez fell to the ground.
Jose did not see it, but other evidence showed that appellant Gonzalez shot Arnoldo, shortly after appellant Quezada punched Arnoldo.
As Jose fought with people, he heard more gunshots. He looked over at some point and saw another member of his group, David, fighting with appellant Quezada. Jose thought that he and David were the only men of his group who were still standing, as the others had been shot and were lying on the ground. Jose ran over and helped David pull Quezada down. Jose kicked Quezada in the face and stumbled. Jose then saw that, 10 feet away, Quezada was getting up from the ground, holding a black semiautomatic handgun. Jose realized that Quezada had a different gun from appellant Gonzalez’s chrome revolver. Quezada pointed his gun directly at Jose’s chest and fired twice, but missed. Baldemar, although wounded, came up from behind Quezada and pulled on him. Quezada stumbled, dropped his gun, picked it up, and ran to the Impala, which had moved near him. Appellants got into the Impala. It drove to the Expedition, which was waiting at the exit. The Expedition and the Impala then drove away.
Appellant Quezada maintains that Jose did not identify him as the shooter. We do not agree. Jose referred to the shooter as the “guy with the white shirt, ” and he had previously indicated in his testimony that Quezada was “the guy with the white shirt.” Moreover, Baldemar testified that he helped David by pulling down the person in the white shirt, and Arnoldo testified that he saw appellant Quezada firing a black gun, earlier in the incident.
B. Arnoldo
Arnoldo passed by appellants as he returned to the truck. Looking back, he saw that some members of his group were arguing with appellants and other unknown men. Arnoldo walked back to find out what was happening. He stood next to Eduardo, facing appellant Quezada, who was standing next to appellant Gonzalez. Eduardo told Arnoldo, “He has a gun.” Gonzalez lifted his shirt. Arnoldo saw that Gonzalez had a chrome gun at his waistband. Quezada had already punched Eduardo. Quezada suddenly punched Arnoldo in the forehead. Arnoldo stumbled back. Before he could regain his balance, he was shot, “right below” his stomach. He did not see who shot him. He walked back toward the truck and ended up on the ground in front of it.
From his position on the ground, Arnoldo saw that appellant Gonzalez was struggling with Rodriguez over Gonzalez’s gun, both men had their hands on the gun, and Rodriguez had blood on his stomach. The gun discharged once or twice. Arnoldo also saw that appellant Quezada had a different gun, a black handgun, which Quezada used while firing three or four shots toward the street. At some later point, Arnoldo saw Lopez, the driver of the Expedition, gesturing for people to return to it. Arnoldo lost consciousness and next woke up at the hospital. The bullet he received traveled from his stomach to his leg. He almost died, required surgery on his stomach and leg, and came close to having the leg amputated.
C. Baldemar
After Baldemar left the store, he saw Eduardo and Guzman standing near appellant Quezada. Quezada looked angry. One of the girls who had been in the Expedition was trying to hold Quezada back. Apellant Gonzalez approached. Baldemar asked Quezada, “What’s going on?” Gonzalez said, “What?” Gonzalez pulled up his shirt and showed a handgun, tucked in his waistband. The girl was saying, “Stop.” Quezada said something to her and suddenly punched Eduardo. Within seconds, someone swung at Baldemar. People were running around. Baldemar was fighting two unidentified men. He saw Gonzalez raising the gun. Rodriguez ran to Gonzalez and wrestled with him for the gun. Two shots were fired. Rodriguez dropped to the ground, with Gonzalez standing over him.
Baldemar ran to Gonzalez and tried to take the gun from him. Gonzalez shot Baldemar in the stomach. Baldemar fell to the ground. He saw two men fighting with David. Despite his wound, he got up and rushed over to help David. Reaching from behind, he pulled down a person in a white shirt (Quezada). Quezada got up again. Someone ran to the Impala. The Impala drove away, with appellants in the back seat.
Baldemar further testified that he was “lucky.” The bullet he received in his stomach went “through and through” his body. He spent a day and a half in the hospital and did not require surgery.
D. David
As David returned from the restroom, he saw the Impala parked behind the Expedition. Appellant Quezada left the Impala from the front passenger side. Quezada walked to the No. 1 island and stared at the men of Rodriguez’s group as they walked by. Guzman looked back at Quezada, and the two men exchanged words. Quezada looked angry. David saw appellant Gonzalez walking around on the driver’s side of the Impala with a chrome revolver in his belt. David announced, “He’s got a gun.” Two men and one woman came out of the Expedition. David, Eduardo and Baldemar came closer to Quezada. The woman tried to hold Quezada back. Quezada pushed her away and threw a punch at Eduardo. Quezada also punched Arnoldo. The driver of the Expedition and the two men who had already come out of the Expedition then joined appellants in attacking the men of Rodriguez’s group.
As David exchanged punches with someone, he looked back and saw Rodriguez fighting with appellant Gonzalez for Gonzalez’s gun. David then heard two gunshots. David also saw that Baldemar was fighting with a man while Guzman was fighting with appellant Quezada and another man. David came to Guzman’s assistance and exchanged punches with Quezada. David hit Quezada in the nose as hard as he could, which caused Quezada’s blood to spurt onto David’s pants. Quezada threw David to the ground and fell on top of him. Jose ran over and pushed Quezada off of David. David got on top of Quezada and punched him. Quezada shoved David off. David rolled over.
The evidence does not show exactly when Guzman was shot.
At that point, a man stepped in front of David and, using a chrome revolver, shot at him twice, from five or 10 feet away. David “pretty much froze.” The shots missed him and hit the pavement. He did not know who shot at him, but the jury could reasonably infer that it was appellant Gonzalez, who had the chrome revolver that night.
Wounded, Baldemar suddenly shoved the shooter (appellant Gonzalez) away from David. David definitely saw Gonzalez run over to where Rodriguez was lying on the ground. Gonzalez fired at Rodriguez, ran to the Impala, and entered it. The Impala drove out of the gas station. It almost hit Guzman, who was lying near the exit, but David managed to lift Guzman out of the way.
E. Eduardo
Eduardo and his friend Victor were the last men in Rodriguez’s group to leave the store. Eduardo saw a “bald man” (appellant Quezada) looking angry. Eduardo asked Guzman what was happening. There was an exchange of words. Eduardo thought there was going to be a fight. Standing next to Arnoldo, he saw that a person, identified by other witnesses as appellant Gonzalez, had a chrome gun. After receiving a punch in the eye, Eduardo ran across the street with Victor. As he ran, he heard multiple gunshots. He called 911 on his cell phone from across the street. He saw the Impala and the Expedition leave the gas station.
F. Victor
When Victor walked out of the store with Eduardo, he saw the Impala parked behind the Expedition. One of the men in Rodriguez’s group made a very short, casual, flirtatious statement to a woman who was standing in front of the Expedition. Victor took a couple more steps. A “bald-head[ed]” man (Quezada) stared at Guzman, as if trying to provoke a confrontation. There was an argument and then a fight. Two or three “bald-headed” men left the car that was parked behind the Expedition (the Impala) and joined in the fighting. People were “all over the place.” Wild punches were thrown. Then a man, identified by other witnesses as Gonzalez, pulled out a gun and fired at multiple people. Victor saw Gonzalez shoot Rodriguez after Rodriguez wrestled for the gun. Victor also saw Gonzalez shoot Baldemar and Guzman. Gonzalez was “just firing all over the place.” Victor saved himself by running across the street.
G. Rodriguez’s Wife
While most of the men in Rodriguez’s group went to the store, the two women waited in the truck. Rodriguez returned from the store and sat down in the front passenger seat. He suddenly said, “What’s going on out there?” He left the truck, leaving the door open. His wife looked out and observed a group of people in front of the truck. She saw Rodriguez struggling with appellant Gonzalez, who was pointing a gun at Rodriguez. Rodriguez’s wife left the truck and started to run to her husband, but her cousin held her back. Rodriguez’s wife heard multiple gunshots, and then saw Rodriguez lying on the ground, being shot by Gonzalez.
H. The Autopsies
Guzman died from a single bullet that was fired less than one centimeter from his skin or clothing.
Rodriguez had three bullet wounds. The fatal wound, came from a bullet that entered on the left side of the chest and went out through the back, passing through the lungs and heart.
I. Other Evidence
The video from the surveillance camera in front of the store showed appellants, the four vehicles, and many of the other people who were present during the incident.
Physical evidence at the crime scene showed that two guns fired multiple bullets. The guns themselves were never found.
Appellants and Lopez, the driver of the Expedition, appeared with another man, Leonardo Lepe, in a photo that the police seized when they searched Lepe’s home on February 4, 2003, about two months before the shootings in this case (the Pico Rivera shootings). Lepe lived in the Hollenbeck/Boyle Heights area of Los Angeles. About two months after the Pico Rivera shootings, law enforcement officers stopped the Expedition and the Impala in the Hollenbeck/Boyle Heights area. At that time, Lopez was driving the Expedition, Gonzalez was a passenger in the Impala, and the connection with the Pico Rivera shootings was not known.
The sheriff’s department investigators in Pico Rivera had difficulty identifying some of the people in the surveillance video from the gas station, so they sought assistance from law enforcement agencies in other areas. Based on information they received, they placed photos of appellants and Lopez into six-pack photo lineups (six-packs). When the eyewitnesses of the Pico Rivera shootings were shown the six-packs, nearly all of them identified appellants as the two shooters and Lopez as the driver of the Expedition.
In September 2003, about six months after the Pico Rivera shootings, investigators saw the Impala parked outside of appellant Gonzalez’s home and the Expedition parked outside of Lopez’s home. Both those residences were in the Hollenbeck/Boyle Heights area. A week or two later, when search warrants were executed, the vehicles were gone. The Expedition was never again located. The Impala was eventually found in the City of Rialto.
DNA testing showed that Quezada’s blood was on clothing and shoes that Jose and David wore during the incident. That evidence is the basis for the DNA issue on this appeal.
J. The Gang Expert
Los Angeles Police Detective Rudy Chavez worked in the Hollenbeck Division, in an area that includes the community of Boyle Heights. Chavez testified that appellant Gonzalez and Lopez, the driver of the Expedition, both belonged to a gang in that area called “Breed Street.” Members of Breed Street had been convicted of numerous crimes. Appellant Quezada belonged to a party or tagging crew, the Untouchables, that was allied with Breed Street. Members of tagging crews begin by drawing graffiti, but they sometimes advance to more serious crimes and then become gang members. Appellant Gonzalez was a member of the Untouchables before he joined Breed Street. Leonardo Lepe, in whose home the group photo was found, was a member of the Untouchables and was a convicted murderer.
Detective Chavez’s testimony continued: Gang members are preoccupied with respect and are excessively possessive of their women. A common behavior called “mad-dogging” involves staring at people to intimidate them or provoke a reaction. A Boyle Heights area gang called “Cuatro Flats” is a rival of Breed Street. “Chili Fries” is a derogatory term that members of Breed Street use for members of Cuatro Flats. Gang members commit violent crimes within their own territory, to maintain control there. However, they also go outside their territory to commit crimes, to avoid being caught. When they do so, they tend to travel in groups and carry firearms. Committing violent crimes enhances the reputation of the gang and the gang members who commit the crimes, even if the crimes are committed outside of the gang’s territory, because the perpetrators brag about their crimes afterwards. In Chavez’s opinion, the shootings in this case were committed for the benefit of a gang.
2. Defense Evidence
Dr. Mitchell Eisen gave expert testimony regarding the factors that can affect the accuracy of eyewitness identifications and memory.
DISCUSSION
1. Sufficiency of the Evidence
According to appellants, there is insufficient evidence for their convictions, because they did not intend to kill anyone and acted in self-defense when they were attacked by Rodriguez’s group. However, that is not what the record shows. Utilizing the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we find that the convictions are supported by substantial evidence, and there was ample evidence of intent to kill and premeditation, for these reasons:
The testimony by the gang expert established the motive. Appellants and their cohorts drove from their territory to Pico Rivera, where they were not known, so they could avoid detection while they gained respect for themselves, Breed Street and the Untouchables by shooting someone.
Further evidence of an intent to kill someone that night was shown by appellant Gonzalez’s “Fuck Chili Fries” statement, while he was talking to his fellow gang member Lopez and had his hand at his waist, where he kept his gun.
The manner in which the fighting and shooting started shows that appellants intended to provoke a fight that would give them an excuse to fire the loaded guns they were carrying. They arrived together in the Impala after the unsuspecting victims walked into the store. They waited together outside the Impala and “mad-dogged” the men of Rodriguez’s group who walked by them. The unarmed victims were simply trying to return to their vehicles at island No. 2. Arnoldo said something flirtatious to the girls at the door, and Guzman and Eduardo said something after appellants mad-dogged them, but there was nothing that could be called provocation from anyone in Rodriguez’s group.
The testimony of the witnesses is at times confusing, which is understandable, giving the speed and surprise of the shootings. It is clear that, as appellant Gonzalez displayed his gun, appellant Quezada began the fight by suddenly punching Eduardo and Arnoldo. Gonzalez shot Arnoldo, for no reason, seconds after Quezada punched Arnoldo. During the ensuing free-for-all, which included some of appellants’ cohorts, Gonzalez used his chrome revolver to shoot Rodriguez, Baldemar and Guzman, and fired at David, but missed. Quezada fired his black semiautomatic toward the street and later fired twice at Jose’s chest, but missed. Appellants fired at potentially lethal areas of the victims’ bodies, the upper torso and the stomach. The murder victims Rodriguez and Guzman both had contact wounds. Rodriguez was shot three times. Appellants drove away immediately after the shootings.
Taken as a whole, there was abundant evidence for all of the jury’s findings. Appellants argue that all they did was protect themselves from the members of Rodriguez’s group. Quezada, in particular, maintains that all he intended was a fistfight. The contentions are unconvincing. The jury could reasonably find that Quezada knew Gonzalez intended to fire his gun, especially because (a) Quezada himself was carrying a loaded gun that he fired during the incident; and (b) Gonzalez was standing next to Quezada, displaying the gun, when Quezada began the attack by punching Eduardo and Arnoldo. Moreover, the men of Rodriguez’s group tried to retreat when they saw Gonzalez’s gun. Appellants followed them, attacked them, and shot them, assisted by their confederates. The men of Rodriguez’s group cannot be blamed for trying to defend themselves. Nothing that they said or did justified the crimes that appellants committed.
2. The Natural and Probable Consequences Doctrine
At the prosecutor’s request, and over defense objection, the trial court gave CALJIC No. 3.02. That instruction explained the liability of an aider and abettor if the murders and attempted murders “were a natural and probable consequence of the commission of the crimes of challenging a person to a fight or assault with a deadly weapon.” The “natural and probable consequence” doctrine was one of the theories discussed by the prosecutor during final argument. The prosecutor’s main theory, however, was that appellants intended to kill the victims.
CALJIC No. 3.02 stated: “One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find a defendant guilty of the crimes of Murder and Attempted Murder, as charged in Counts 1, 2, 3, 4, 5 and 6, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime or crimes of Murder and/or Attempted Murder were committed; [¶] 2. That a defendant aided and abetted those crimes; [¶] 3. That a co-principal in that crime committed the crimes of Challenging A Person To A Fight or Assault With A Deadly Weapon and [¶] 4. The crimes of murder and/or Attempted Murder were a natural and probable consequence of the commission of the crimes of Challenging a Person to A Fight or Assault with A Deadly Weapon. [¶] In determining whether a consequence is ‘natural and probable, ’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of Murder and/or Attempted Murder was a natural and probable consequence of the commission of that target crime.”
Appellants contend that their convictions must be reversed, under cases like People v. Smith (1998) 62 Cal.App.4th 1233, 1238, because the natural and probable consequences doctrine was inapplicable here, and it is not possible to determine whether the verdict was based on a valid ground. We reject the argument because the instruction and argument on the natural and probable consequence doctrine were appropriate.
“[T]he perpetrator is responsible for all criminal acts committed, while the aider and abettor is responsible only for those crimes that were reasonably foreseeable.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 82, p. 131.) “The liability of an aider and abettor for reasonably foreseeable offenses has been discussed in terms of the ‘natural and probable consequences’ doctrine.” (Id. at p. 132.) If the perpetrator commits a more serious crime (the nontarget offense) than the crime the aider and abettor intended (the target offense), the aider and abettor is liable for the nontarget offense only if it is a natural and probable consequence of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 259-263.)
In People v. Montes (1999) 74 Cal.App.4th 1050, 1054-1056 (Montes), the victim and the defendant were involved with rival street gangs. After the defendant attacked the victim with a chain, the defendant’s fellow gang member, Cuevas, retrieved a gun from a nearby car and shot the victim. The defendant was convicted of attempted murder. On appeal, he contended that the jury should not have been instructed on the natural and probable consequence doctrine, for the target offenses of simple assault or breach of the peace for fighting in public, as there was no evidence that he knew Cuevas was armed. Montes found no error. It reasoned that, in the context of a gang confrontation, the target crimes were closely connected to the nontarget crime of attempted murder, and it was immaterial whether the defendant specifically knew about Cuevas’s gun.
More recently, in People v. Medina (2009) 46 Cal.4th 913 (Medina), the defendants and the victim belonged to rival gangs. A verbal challenge resulted in a fistfight. After the fistfight, as the victim drove away with his friend, one of the defendants shot at the victim and killed him. The Court of Appeal reversed the convictions of the defendants who were not the shooters, ruling that there was insufficient evidence that the nontarget offenses of murder and attempted murder were the natural and probable consequence of the target offense of simple assault. The California Supreme Court reversed the Court of Appeal, on the ground “a rational trier of fact could have concluded that the shooting death of the victim was a reasonably foreseeable consequence of the assault.” (Ibid.)
Medina was decided in June 2009, after the opening briefs were filed in this case. Appellants’ briefing relies heavily on very different analysis in an appellate decision called People v. Martinez. The California Supreme Court granted review in that case on March 25, 2009, S170016, and later dismissed review on August 26, 2009, in light of Medina.
Under Medina, the ultimate issue is whether, when the record is examined “in the light most favorable to the prosecution, ... a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault.” (Medina, supra, 46 Cal.4th at p. 922.) That “ultimate factual question” is “to be evaluated under all the factual circumstances of the case.” (Id. at p. 927.) Using that analysis here, we conclude that a rational trier of fact could have found that the murders and attempted murders were reasonably foreseeable, as appellants came to the area that night with their cohorts, intending to use their guns during a crime that would lead to increased respect for themselves, Breed Street, and the Untouchables. Indeed, appellants’ culpability here is greater than that of the defendants in Medina, or inMontes, supra, 74 Cal.App.4th 1050, as the shooting here began shortly after the punching started, and appellants both fired guns during the incident.
People v. Ayala (2010) 181 Cal.App.4th 1440 recently came to similar conclusions regarding the effect of Medina, supra, 46 Cal.4th 913 on the natural and probable consequence doctrine in gang shooting cases.
We therefore conclude that no error occurred regarding the natural and probable consequences doctrine.
3. The DNA Issue
This issue applies only to appellant Quezada, as there was no DNA evidence as to appellant Gonzalez.
The jury learned that, based on DNA testing, appellant Quezada’s blood was on clothing and shoes retrieved from the victims David and Jose after the incident. The DNA testimony came through Rick Staub, a director of the Orchid-Cellmark laboratory (Cellmark). Staub explained that the actual testing of the samples was conducted by Amber Moss, a forensic analyst at the laboratory. Moss followed set protocols and generated a case file that included her test results, final report and conclusions. In accordance with established procedure, Moss’s testing and results were then submitted for technical review to Judy Floyd, the laboratory’s manager. Staub then independently drew his own conclusions from the results in the case file. He determined that Moss used the correct procedures, and he agreed with the results and conclusions in her report.
Staub was cross-examined at the trial, but Moss was unavailable. There was no objection to the DNA testimony, and appellants stipulated to the expertise of Staub, Floyd, and Moss.
Appellant Quezada contends that the failure of Moss to testify violated his Sixth Amendment right to confrontation (Crawford v. Washington (2004) 541 U.S. 36), and if the issue is waived for lack of an objection, he was denied his constitutional right to the effective assistance of counsel (Strickland v. Washington (1984) 466 U.S. 668).
As appellant Quezada recognizes, this very issue was rejected by the California Supreme Court in People v. Geier (2007) 41 Cal.4th 555, 593-608 (Geier). Quezada maintains that the holding of Geier is erroneous.
In Geier, as here, the DNA testimony came from a laboratory director of Cellmark rather than the laboratory employee who actually analyzed the samples. Geier held that the analyst’s DNA report was not testimonial, for the purpose of the confrontation clause, and even if there was a violation of the confrontation clause, the error was harmless under Chapman v. California (1967) 386 U.S. 18. (Geier, supra, 41 Cal.4th at pp. 607-608.)
Based on Geier, which we must follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), there was no Confrontation Clause violation here in the fact that Staub and not Moss testified about the DNA testing and results.
Moreover, as in Geier, even if there was a violation of the confrontation clause, the error was harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18. We reach that conclusion because appellant Quezada was repeatedly identified by numerous witnesses, was shown on the store’s surveillance video, and appeared in a gang-related photo with appellant Gonzalez, who also was repeatedly identified. Giving the overwhelming evidence that Quezada participated in the crimes, the fact that his blood was on two of the victims’ clothing made no possible difference.
Appellant Quezada also argues that Geier, supra, 41 Cal.4th 555 is no longer valid because of the United States Supreme Court’s subsequent decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2532] (Melendez-Diaz). Melendez-Diaz held that a sworn certificate from a laboratory analyst, reporting that an analyzed substance was cocaine, was “testimonial” for the purpose of the confrontation clause, so the certificate could not be used, instead of in-court testimony, unless the analyst was unavailable and had previously been subject to cross-examination. Appellant relies on Court of Appeal cases in which review was subsequently granted by the California Supreme Court, after the briefing in this case, to decide the effect of Melendez-Diaz on Geier. (People v. Gutierrez, review granted Dec. 2, 2009, S176620; People v. Rutterschmidt, review granted Dec. 2, 2009, S176213.)
Certiorari was denied in Geier, supra, 41 Cal.4th 555, four days after Melendez-Diaz was decided. (Cert. den. June 29, 2009, No. 07-7770, sub nom. Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].)
Subsequent to the briefing in this case, People v. Benitez (2010) 182 Cal.App.4th 194 (Benitez), held that the confrontation clause was violated by a laboratory supervisor’s testimony that, based on the analyst’s notes, the substance the defendant possessed was methamphetamine. Benitez reasoned that “[u]nder Melendez-Diaz, there is no substitute for cross-examination of the creator of a scientific report.” (Id. at p. 201.) On the other hand, another recent case, People v. Bowman (2010) 182 Cal.App.4th 1616 (Bowman), rejected Benitez and concluded “that the holding in Melendez-Diaz addressed a different issue and the case does not supersede our obligation to follow Geier.” (Id. at p. 1622.)
We agree with Bowman that Melendez-Diaz “addressed a different issue” and does not “supersede” Geier. Melendez-Diaz involved a sworn certificate and no live testimony about the laboratory analysis. It applies in the limited context of affidavits or other formalized testimonial materials that are used to prove the results of scientific laboratory testing. In contrast, in the present case, as in Geier, the witness offered his own independent analysis of the test results and conclusions, and he was subjected to cross-examination. Moreover, Melendez-Diaz recognized that there is no requirement that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, fn. 1.) We conclude that Melendez-Diaz is inapplicable here. We therefore follow Geier.
There is no indication that the testifying supervisor in Benitez gave his own expert opinion based on the lab reports, as happened here and in Geier.
Finally, a finding of waiver would be inappropriate, as at the time of the trial, the California Supreme Court’s decision in Geier authorized the same type of DNA testimony that appellants now attack. We base our conclusion, not on waiver, but on the grounds that the DNA testimony here did not violate the confrontation clause, or, assuming arguendo that it did, the error was harmless, in view of the overwhelming evidence of appellant Quezada’s guilt.
DISPOSITION
The judgments are affirmed.
We concur: RUBIN, ACTING P. J., LICTHMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.