Opinion
A097186.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DEVON BURRUS, JR., Defendant and Appellant.
A jury found appellant Michael Devon Burrus, Jr., guilty of the second-degree murder of Alex Mejia (Pen. Code, § 187) and the attempted murder of Salvador Espinoza (§§ 187/664). The jury also found true the allegation that the attempted murder had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced appellant to a term of 15 years to life on the murder conviction and to a concurrent term of 7 years on the attempted murder conviction, after dismissing the gang enhancement pursuant to the prosecutions request.
All further statutory references are to the Penal Code.
This appeal followed.
BACKGROUND
Appellant was known to frequent an area where members of the Color of Blood, (C.O.B.) street gang tended to congregate, and was seen associating with persons active in that gang.
Appellant and another young man, Bounchan Keola, a C.O.B., were charged with eight counts arising out of three incidents. The first took place on the afternoon of April 7, 1998, when shots were fired at Pao Saechao. Saechao, who was a member of a street gang known as the Sons of Death, (S.O.D.), had just pulled his car into a parking lot in San Pablo. A red Pontiac Trans Am pulled up behind him, and a person on the passengers side of that car fired a revolver at him, breaking the rear window of his car. The following day, Saechao saw the red Trans Am again, and someone fired another shot at him. Saechao identified appellant as the driver of the car on both days, and also as the person who shot at him on April 8.
On April 11, 1998, several young men, including Alex Mejia and Salvador Espinoza, were attending a party at the Eagles Hall in San Pablo. The young men were members of, or affiliated with, a street gang known as the 13s. They were standing on the front steps of the hall when a red car pulled up. Someone in the car yelled out "C.O.B," and some person or persons in the car fired several shots. One shot hit Mejia in the arm and another hit him in the head, causing his death. Another bullet hit Espinoza in the back. Witnesses identified appellant as the driver of the car, and Keola as a passenger in the car. Police later stopped a red car matching the description of the car used by the assailants. Appellant was the driver. Keola was a passenger, as were Saen Vilaipone and Vet Maneevorn, both of whom were affiliated with the C.O.B.s. The police confiscated four guns found in the car. A bullet from one of the guns had struck Mejia. Another gun had Keolas fingerprints on it. Vilaipone and Maneevorn made statements to the police that appellant and Keola had fired at the people at the Eagles Hall, reporting that they saw that one or several of these people had guns. Vilaipone testified that one of the people had pulled a gun out of his waistband and had flashed it at them, as if intending to shoot them.
The prosecution also introduced evidence of two uncharged incidents. One incident took place in March 1996, when a number of S.O.D.s went to a particular location for the purposes of engaging in a fight with the C.O.B.s. The situation deteriorated, shots were fired and one of the S.O.D.s was knocked out. The second incident occurred in 1998. Richmond High School students were walking home from school when a car drove up. People in the car, wearing red, and people on the street who were wearing blue and black, shouted at each other, and, ultimately, shot at one another. Veronica Alvarado, a high school student who apparently had little or nothing to do with gangs, was shot. She identified Keola as the person who shot her. Ms. Alvarado stated her opinion that the bullet was not for her-she was a casualty of two gangs fighting one another, probably over colors.
The case was submitted to a grand jury, which issued an indictment charging appellant with the murder of Alex Mejia with the personal use, discharge and cause of bodily injury by a firearm (count one), the attempted murder of Salvador Espinoza with premeditation and with the personal use, discharge and cause of great bodily injury by a firearm (count two), two counts of assault with a firearm on Saechao on April 7 with the personal use of a firearm (counts four and six), two counts of shooting at an occupied motor vehicle (counts five and seven), and the attempted murder with premeditation of Saechao on April 8 (count eight). As to all but count one, it was alleged that appellant had committed the specified offense for the benefit and at the direction of, and in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.
On October 22, 1999, the court, on appellants motion, severed appellants trial from that of his codefendant, Keola. It later denied the prosecutions motion to reconsolidate the cases. The matter was tried to a jury, which returned a verdict of guilty of the second-degree murder of Mejia. The jury found not true the allegation that appellant had personally used a firearm in committing that crime. It found appellant guilty of the attempted murder of Espinoza, and found true that the crime had been committed for the benefit of a criminal street gang, but found that appellant had not used premeditation or deliberation and that he had not personally used a firearm in the commission of that crime. As to the charges relating to the Saechao shootings, the jury found appellant not guilty of one count of assault with a firearm and one count of shooting an unoccupied vehicle. It was unable to reach a unanimous verdict on the remaining charges, and the court declared a mistrial as to them.
DISCUSSION
I.
Denial of Motion to Sever
Appellant contends that the trial court denied him due process and abused its discretion when it denied his motion to sever the counts relating to the crimes against Saechao from the counts relating to the crimes committed at the Eagles Hall.
Section 954 authorizes a court to try in one proceeding "two or more different offenses of the same class of crimes or offenses." There is no question here but that the Eagles Hall shootings and Saechao shootings were of the same class of crimes or offenses. In such a case, "the burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] [P] The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, or with another weak case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1315, 939 P.2d 259, internal quotation marks omitted.)
It also is settled that the enumerated criteria are not equally significant. " The first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled. [Citations.]" (People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316.)
Under Evidence Code section 1101, evidence of a prior criminal act is admissible, "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .)" but not to prove the defendant carried out the charged crimes in conformity with a character trait. " To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . . [P] . . . [P] A lesser degree of similarity is required to establish relevance on the issue of common design or plan. . . . [P] The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant "probably harbored the same intent in each instance. [Citations.] " [Citations.]
". . . However, evidence of uncharged misconduct "is so prejudicial that its admission requires extremely careful analysis" and to be admissible, such evidence "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352 ." [Citation.] Thus, the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial courts ruling . . . is reviewed for abuse of discretion. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)
The prosecution here contended that the evidence of the Saechao shootings was admissible to show intent, identity, motive and common plan, and that it also was admissible to show that the shootings were done for the benefit of a criminal street gang. Appellant contends that there was insufficient evidence from which it might be determined that the Saechao shootings and Eagles Hall shooting involved the same intent or motive, or were part of a common scheme or plan. He further contends that even if the evidence did tend to show a common intent, motive or plan, the probative value of the Saechao shootings was outweighed by the prejudicial effect of its admission.
The Evidence
In determining whether the trial court abused its discretion, we consider the showings made at the time of the hearing on the motion, and the facts then known. (People v. Balderas (1985) 41 Cal.3d 144, 171, 222 Cal. Rptr. 184, 711 P.2d 480; and see People v. Price (1991) 1 Cal.4th 324, 388, 821 P.2d 610.) This does not mean, as appellant suggests, that at the time of the hearing the prosecution has to have developed and introduced enough evidence to prove its theories; it means only that there must be evidence from which the trial court reasonably could have concluded that the evidence would be relevant to an issue such as intent, motive or common plan.
Here, the court had before it evidence from the grand jury proceedings plus police reports filed in connection with each incident. There was evidence that C.O.B. is a gang that operates out of the San Pablo area, and "claims" red as its color. Other gangs operating out of that area include the S.O.D.s, the 13s and the 14s. The S.O.D.s and 13s claim blue as their color, and are rivals of the C.O.B.s. A prosecution expert on gangs stated his opinion that the Eagles Hall shooting was a gang-related shooting, where members of the C.O.B.s shot at members of the 13s as a means of elevating their status with the C.O.B.s. Other witnesses, affiliated with one of these gangs, confirmed that the C.O.B.s wear red and dont get along with the 13s or other gangs claiming blue.
Saechao testified about the April 7 and April 8 shootings. On April 7, 1988, he parked his car in San Pablo. As he was getting out, he noticed that a red Firebird had pulled up right behind him. A black male was driving the car. A passenger in the car started shooting. Saechao got back into his car and drove away. The following day, April 8, Saechao saw the same car. The driver pulled out a gun and started shooting at Saechao, who again was able to drive away. Saechao picked appellant out of a photographic lineup as the person who drove the car on both days, and as the person who shot at him on April 8. Saechao had never seen appellant before. He stated a belief that he was shot at as a result of mistaken identity, testifying that he had not been involved with gangs for several years.
Several persons testified about the Eagles Hall incident. On April 11, 1998, a party was being held at Eagles Hall in San Pablo. It was attended by a number of young men including Salvador Espinoza, Alex Mejia, Enrique Salazar and Juan Quintero, all of whom were affiliated with the 13s. The young men were hanging out on the stairs outside of the hall when a red Firebird pulled up. Appellant was in the drivers seat and Keola was in the passenger seat. Some person or persons in the car shouted "C.O.B." Keola started shooting. A number of shots were fired. Espinoza was shot in the back. Mejia was shot in elbow and in the head, above the eye.
The police went to an area that gangs were known to frequent. There they saw and stopped a red Firebird. Appellant was driving it and Keola was in the passenger seat. Two other young men were in the back. The officers arrested all four men and impounded the car. No weapons were found on the men or in the glove compartment, trunk or under the seats. The car was registered to appellant. Police later discovered that hidden compartments had been built into the cars dashboard. They recovered two . 38 revolvers and two .22 revolvers from the compartments. The bullet that killed Mejia had all the characteristics of a bullet fired from one of the .22s. Keolas thumbprint was found on one of the revolvers.
The grand jury also heard evidence of the March 27, 1998 incident where Veronica Alvarado was shot by a young man identified as Keola who apparently was attempting to shoot members of the 13s.
Intent, Motive and Common Plan
The trial court did not abuse its discretion in finding that evidence of the Saechao shootings would be admissible in a trial for the Eagles Hall incident. In each case, the victims were members of a gang that rivaled the C.O.B.s. In each case, the victims were going about their business when appellant drove up in his car, and appellant or one of his passengers opened fire. There was evidence that in each case the shootings were unprovoked. These common features support the inference that appellant harbored the same intent and motive on all three occasions, and that all three incidents were part of a common design or plan to shoot members of rival gangs. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212.)
Contrary to appellants contention, his intent and motive were at issue. He was charged with first-degree murder and with attempted murder with premeditation. In addition, although, as appellant asserts, there was no argument that the Eagles Hall shootings were the result of accident or mistake, it was clear that appellant intended to claim that he or his companions were acting in self-defense, or imperfect self-defense.
Appellant emphasizes that he denied that he was involved in the Saechao shootings. He also points out that during the grand jury proceedings Saechao stated that appellant was not in the car on April 7. If this were the extent of the evidence, it might not be enough to tie appellant to the April 7 shooting. Appellant fails to acknowledge, however, that Saechao picked appellant out of a lineup as the person who drove the car on both April 7 and April 8.
We also conclude that the prejudicial effect of the evidence did not outweigh its probative value. It is settled that where evidence of gang activity or membership is important to motive, including a claim that an offense was provoked by conduct of the victim or fear of the victim, it can be introduced even if prejudicial. (People v. Martin (1994) 23 Cal.App.4th 76, 81-82.) The evidence was not cumulative. Other evidence of gang involvement, while supporting the conclusion that appellant was in fact affiliated with the C.O.B.s, was not particularly probative on the question of his intent and motive in connection with the Eagles Hall shootings.
Street Gang Enhancements
The Street Terrorism Enforcement and Prevention Act ( § 186.20 et seq.), enacted in 1988, imposes penal consequences when crimes are committed "for the benefit of, at the direction of, or in association with any criminal street gang." ( § 186.22, subd. (b)(1).) "To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]
"A pattern of criminal gang activity is defined as gang members individual or collective commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more enumerated predicate offenses during a statutorily defined time period. [Citation.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citation.] The charged crime may serve as a predicate offense [citations], as can evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member. [Citation.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457; and see People v. Sengpadychith (2001) 26 Cal.4th 316, 319, 322-323 and People v. Gardeley (1996) 14 Cal.4th 605, 615-617, 927 P.2d 713.)
Evidence of the Saechao shootings, coupled with evidence of appellants connection to the C.O.B.s, the presence of Keola on April 7 and other evidence of the gang-related activities of the C.O.B.s, tended to show both that C.O.B. is a criminal street gang (i.e., that it had as a primary activity the commission of one or more of the statutorily enumerated offenses), and that appellants conduct in connection with both the Saechao shootings and the Eagles Hall shooting was for the benefit of, at the direction of or in association with the C.O.B.s.
Appellant contends that the prosecution was not entitled to introduce the evidence because it had no right to have the jury determine if the gang enhancement allegations were true. He also suggests that the evidence should not have been admitted because the truth of those allegations was an issue to be decided only after guilt is determined. Appellant did not waive his right to have a jury try the issue, and did not move to bifurcate the trial so that the truth of the enhancing allegations might be tried later. Moreover, as recognized in People v. Martin, supra, 23 Cal.App.4th at pp. 81-82, as the evidence of gang-related activity also tends to show motive or intent, there can be no point in bifurcating the proceedings.
The evidence was not unduly cumulative. The prosecution had very little direct evidence relating to appellants intent or motive. In addition, in order to show that the commission of the enumerated offenses was a "primary activity" of the C.O.B.s, the prosecution was required to prove that within a certain time frame, gang members had committed or attempted to commit two or more of the enumerated offenses. (People v. Gardeley, supra, 14 Cal.4th at p. 610.) It follows that evidence that members of the C.O.B.s had committed several separate offenses is not cumulative. For the same reason, evidence that the C.O.B.s had committed several separate offenses did not simply repeat the testimony of an expert witness that a primary activity of the C.O.B.s was the commission of such crimes; the prosecution still had to prove that members of the C.O.B.s in fact committed at least two crimes.
In sum, the evidence of the Saechao shootings and Eagles Hall shootings was cross admissible, and joining the charges in a single trial was not so prejudicial as to violate appellants due process rights. As we find that the evidence was cross-admissible, we need not and do not address appellants claims that other criteria may have favored severance of the charges.
II.
Admission of Evidence of Other Incidents
The trial court, over defense objection, allowed the prosecution to introduce evidence of the March 1996 fight between S.O.D.s, and C.O.B.s, and the March 27, 1998 shooting of Veronica Alvarado. Appellant, pointing out that there was no evidence that he was involved in either incident, contends that the admission of this evidence was error. The evidence, however, was admissible to prove the C.O.B.s had as a primary activity the commission of one or more of the statutorily enumerated offenses. There was no need to also establish that appellant was involved in the commission of the offenses.
Appellant argues that the evidence was cumulative, more prejudicial than probative and so emotionally charged as to violate his right to due process. The evidence was not cumulative. As discussed previously, the prosecution was required to prove that the C.O.B.s had committed at least two specified criminal offenses, and therefore was entitled to introduce evidence of crimes committed by members of the C.O.B.s. While it certainly is true that the evidence of gang-related violence and the shooting of an innocent bystander was emotionally charged, the prejudice to appellant was lessened by the fact that he was not involved in either incident. We find neither constitutional error nor abuse of discretion in the trial courts admission of the evidence.
III.
Aiding and Abetting
In connection with the murder of Alex Mejia and the attempted murder of Salvador Espinoza, the prosecution asserted two theories against appellant: (1) that appellant himself shot both young men, and (2) that Keola shot one or both of them, but appellant was liable for Keolas crimes as an aider and abettor. The jury found appellant guilty of the second degree murder of Alex Mejia, and of the attempted murder of Salvador Espinoza, but found "not true" that appellant personally had used a firearm in the commission of those offenses. The jury, therefore, must have found appellant derivatively liable for the crimes committed by Keola.
The basic legal principles are set forth in People v. Prettyman (1996) 14 Cal.4th 248, 254, 926 P.2d 1013: "Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a natural and probable consequence of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the natural and probable consequences doctrine, the jury must find that, with knowledge of the perpetrators unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendants confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a natural and probable consequence of the target crime that the defendant assisted or encouraged."
Here, the target crimes were possession of a firearm by an active participant in a criminal street gang ( §§ 12031, subd. (a)(2)(C); 186.22; People v. Robles (2000) 23 Cal.4th 1106), and possession of a revolver by a minor. ( § 12101.)
Appellant contends that the evidence does not support a finding that Keola committed either target crime, or that appellant aided and abetted the commission of either target crime. He argues that the trial court therefore erred in instructing the jury on those offenses. Finally, he argues that the instructions given were erroneous.
Sufficiency of the Evidence
As appellant concedes, there was evidence that Keola possessed a firearm. For purposes of section 12031, subdivision (a)(2)(C), there also needed to be evidence that he actively participated in a criminal street gang with knowledge that its members engaged in or had engaged in a pattern of criminal gang activity, and that he willfully promoted, furthered or assisted in felonious criminal conduct by members of that gang. (People v. Robles, supra, 23 Cal.4th at p. 1115.) As discussed previously, a "pattern of criminal gang activity" is defined as gang members individual or collective commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more enumerated predicate offenses during the statutorily defined time period.
There was evidence that Keola was a C.O.B. There was evidence that Keola was involved in the shooting of Veronica Alvarado. There was evidence that Keola was involved in the Eagles Hall shootings. There was evidence that other passengers in appellants car were C.O.B.s, and that someone in the car shouted "C.O.B." at the time the shots were fired. Therefore, there was evidence from which it could be concluded both that Keola had knowledge that the C.O.B.s engaged in a pattern of criminal gang activity, and that he furthered or assisted in felonious conduct by members of the gang. It follows that there was evidence that Keola was an active participant in a criminal street gang. The evidence, therefore, supported a finding that Keola was guilty of possession of a firearm by an active participant in a criminal street gang.
There also was evidence that Keola was in possession of a revolver. He was seen with a gun, and his fingerprint was found on a revolver taken from appellants car. There was evidence that Keola was a juvenile at the time of the Eagles Hall shootings. Deputy Probation Officer Edie Elias testified that she was a juvenile investigator in 1998, a position that required her to conduct an investigation after juvenile charges have been sustained. After the Eagles Hall shootings, Ms. Elias was assigned to do a report on Keola, who was a juvenile in 1998. Although, as appellant points out, Ms. Elias did not specifically state that Keola was a juvenile at the time of the shootings, that fact can be inferred from her testimony. The evidence, therefore, supported a finding that Keola was guilty of possession of a revolver by a minor.
There was evidence that appellant aided and abetted Keola in the commission of the target offenses. For a defendant, such as appellant, to be deemed an accomplice, the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or encouraging or facilitating commission of, the offense. (People v. Prettyman, supra, 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561, 199 Cal. Rptr. 60, 674 P.2d 1318.) The evidence here is that Keola was in appellants car and that appellants car was equipped with hiding spaces for guns. There was evidence that appellant was involved in the Saechao shootings, although the jury did not find that appellant himself shot at Saechao. There also was evidence that appellant was in the habit of arming persons in his car with weapons. Vilaipone told police that he was holding a gun when Vilaipone, appellant, and the others drove to Eagles Hall, explaining that appellant gave him the firearm, and that appellant always gave him firearms, "just in case." On this evidence, the jury reasonably could find that appellant was aware that Keola was in possession of a gun, and acted with the intent of facilitating Keolas possession of the gun.
The jury also reasonably could find that appellant knew that Keola was a juvenile. Although there is no direct evidence that appellant knew Keolas age, there is evidence that appellant was well acquainted with Keola and it could be inferred that he knew Keolas age. In addition, appellants own activities, his connection with the C.O.B.s and his connection with Keola, permits an inference that appellant knew that Keola was an active participant in a criminal street gang whose conduct was intended to promote, further or assist in felonious criminal conduct by members of that gang.
Finally, there was evidence from which the jury reasonably could conclude that murder or attempted murder was a natural and probable consequence of the target offense. Appellant asserts that he is unaware of any case upholding a conviction of second-degree murder or attempted murder as the natural and probable consequence of aiding and abetting firearm possession, an assertion that suggests that the issue presents a question of law. It is, however, settled, that whether a crime is the natural and probable consequence of a target offense is not a question "to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the [resolution of the issue] depends on whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
Here, again, the circumstances include evidence that Keola was a member of the C.O.B.s, that the C.O.B.s fought with rival gangs, and that members of the C.O.B.s, and Keola in particular, shot at members of the rival gangs such as the S.O.D.s. There was evidence that appellant was well acquainted with Keola, and that he spent time with groups of C.O.B.s. It could be inferred that he was aware of the practices of C.O.B.s. Appellant was the driver of the car involved in the Saechao shootings. The jury was entitled to infer that a natural and probable consequence of facilitating Keolas possession of a revolver, and driving him to a party attended by S.O.D.s, would be murder or attempted murder.
Appellant cites People v. Price, supra, 1 Cal.4th 324, where the Supreme Court rejected a claim that murder was a natural and probable consequence of a gun possession offense under the circumstances of that case. The accomplice there, Janet Myers, had reason to know that the defendant, Price, was armed on the night he stayed with her. The court found that the prosecution had not presented evidence from which it might be concluded that she knew, or should have known, that Price planned to commit a murder in the near future. Therefore, the murder committed that night was not a natural and probable consequence of permitting him to stay temporarily at her residence with the weapons. (Id. at p. 443.) Here, in contrast, it could be inferred that appellant was perfectly aware that Keola used firearms against members of rival gangs, and had every intent of using his firearm against a member of a rival gang if he saw one. There was evidence appellant had facilitated the Saechao shooting just days earlier. In other words, there is evidence from which it could be inferred that appellant knew or should have known that a murder or attempted murder was the probable result of driving an armed Keola to a location where he would find members of a rival gang.
We find that the evidence supports a finding that appellant was guilty of murder and attempted murder as an aider and abettor, and that the court accordingly did not err in instructing the jury, generally, on the liability of aiders and abettors.
Instructions
Appellant contends that the court erred by failing to instruct the jury on the elements of the target offenses. The court in People v. Prettyman, supra, 14 Cal.4th at 248, stated the trial courts duty: "When the prosecutor relies on the natural and probable consequences doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal." (Id. at p. 254.) Any deficiency in the courts instructions is rendered harmless if it is not reasonably probable that the trials outcome would have been different in the absence of the instructional error. (Id. at p. 274; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Here, the court identified one target crime as "possession of a revolver by a minor." The identifying language adequately described the elements of that crime, with the possible exception that it did not inform the jury that the juvenile must know of the presence of the firearm. (People v. Snyder (1982) 32 Cal.3d 590, 597-598, 186 Cal. Rptr. 485, 652 P.2d 42.) As there is no question but that Keola knew that he had a firearm in his possession, no harm could attach to the failure to inform the jury that knowledge is an element of the offense.
The court identified the second target crime as "possession of a firearm by an active participant in a criminal street gang," an identification that again describes the elements of the offense. The jury also was instructed on the definition of criminal street gang. Appellant contends that the court erred in failing to inform the jury that Keola had to have knowledge of the presence of the firearm. As pointed out above, the deficiency, if any, was harmless. Appellant also contends that the court should have instructed the jury that it had to find that Keola knew that the C.O.B.s engaged in a pattern of criminal gang activity, and that he either directly and actively committed, or aided and abetted, a member or members of that gang in committing one of the enumerated crimes; i.e., that he was an active participant with knowledge of the C.O.B.s activities. The jurys verdict reflects the prosecutions theory that Keola did the shooting, aided and abetted by appellant, and that appellant had the specific intent to benefit a street gang. On this evidence the jury could not reasonably have reached that conclusion without also concluding that Keola had the intent to benefit a street gang. Any error was harmless.
Appellant complains that the court failed to instruct the jury that, irrespective of the prohibition against possession of a revolver by a minor, a minor is entitled to possess a weapon for the purpose of self-defense or the defense of others. (§ 12101.) The jury was instructed, generally, on self-defense and was told that a person is not guilty of a crime when the crime was committed in justifiable self-defense. In addition, in finding Keola guilty of the target crimes, and of murder and attempted murder, the jury necessarily rejected any theory that he acted in self-defense. On the facts of this case, the jury could not reasonably have rejected a theory of self-defense or defense of others for murder or attempted murder, and find that Keolas possession of a revolver was justified on a theory of self-defense or justifiable defense of others. Any error in failing to instruct the jury that Keola was entitled to possess a firearm for the purpose of self-defense or defense of others was, therefore, harmless.
Appellant also contends that the court erroneously instructed the jury in accordance with CALJIC No. 3.00, that if it found appellant to be an aider and abettor, it could not find him guilty of an offense lesser than that committed by Keola. The court, however, properly instructed the jury that a principal includes a person who aids or abets in the commission of a crime. It also instructed the jury in accordance with CALJIC No. 3.02, that "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." Finally, the jury was instructed that it could find appellant guilty of murder or attempted murder only if it found that appellant aided and abetted the target crimes, and that the crimes of murder and attempted murder were a natural and probable consequence of the commission of the target crimes. The jury was not informed that it had to find appellant guilty of second-degree murder or attempted murder if it found Keola guilty of those crimes. To the contrary, it was instructed that it could find appellant guilty of those crimes only if they were the natural and probable consequence of the target crimes.
For the above reasons we also reject appellants claims that federal constitutional error occurred.
IV.
Conspiracy
As relevant here, the court instructed the jury on conspiracy to commit the crimes of assault with a firearm, possession of a firearm by an active participant in a criminal street gang and possession of a revolver by a minor. Appellant contends that the evidence did not support the prosecutions theory of conspiracy, and that the court therefore erred in instructing the jury on that theory.
Sufficiency of the Evidence
A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense and the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such an agreement in furtherance of the conspiracy. (Pen. Code, § 184; People v. Morante (1999) 20 Cal.4th 403, 416, 975 P.2d 1071.) The existence of the conspiracy must be shown by independent proof, but the showing need only be prima facie evidence of the conspiracy, and may be established by circumstantial evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134, 885 P.2d 1.)
Here, Keola possessed a revolver and committed an assault with a deadly weapon. As discussed above, the evidence was sufficient to show that appellant aided and abetted the crimes of possession of a revolver by a minor and possession of a firearm by an active participant in a criminal street gang. The evidence also supported a conclusion that appellant aided and abetted the murder and attempted murder, as these crimes were the natural and probable consequence of the possession crimes, and it follows that there was evidence that appellant in fact aided and abetted the crime of assault with a firearm.
Although it is true that there is little or no direct evidence that appellant and Keola shared the specific intent to agree or conspire to commit the offenses, or the specific intent to commit the elements of each offense, circumstantial evidence supports such conclusions. Appellants car was equipped with secret compartments used to conceal weapons. The weapons used in the Eagles Hall shootings were concealed in those compartments. Appellant, driving his car, had been involved in two gang-related shootings just a few days before the Eagles Hall shootings. Appellant had handed an occupant of his car-a C.O.B-a weapon when the group set out. Appellants contact with C.O.B.s, and with Keola in particular, permitted an inference that appellant knew that Keola had shot at members of rival gangs in the past. Appellant drove an armed Keola and two other C.O.B.s to Eagles Hall, where, as the jury found, shots were fired without substantial provocation at members of the 13s. It could be inferred from this evidence that appellant and Keola jointly acted with the specific intent to arm Keola, and that they further specifically intended Keola to use his weapon against rival gang members. In short, there was prima facie evidence of the requisite conspiracy.
Appellant points out that in U.S. v. Garcia (9th Cir. 1998) 151 F.3d 1243, the Ninth Circuit held that a general agreement to support other members of a gang in gang fights does not provide substantial proof of a specific agreement of conspiracy to commit an assault. In that case, however, involving shooting at a party, there was no evidence from which it might have been inferred that members of the same gang had in some manner coordinated or planned the shooting. The facts established only that perceived insults traded at the party escalated tensions between members of rival gangs, and that an on-going gang-related dispute erupted into a shooting. Here, by contrast, appellant, Keola, Maneevorn and Vilaipone were together before the shooting, got into appellants car, armed themselves with weapons and drove to Eagles Hall where someone shouted "C.O.B." and shots were fired at rival gang members. This evidence went far beyond evidence of a general agreement to support other gang members, and permitted an inference of a joint purpose to go to Eagles Hall to shoot members of a rival gang.
Instructions
Appellant contends that reversal is required because the jury was not instructed that the prosecution bore the burden of proving the elements of conspiracy beyond a reasonable doubt. The court in People v. Belmontes (1988) 45 Cal.3d 744, 248 Cal. Rptr. 126, 755 P.2d 310 rejected a similar contention. The court there pointed out that the prosecution was not attempting to prove that the defendant was guilty of conspiracy, and therefore was not required to prove the defendant guilty of conspiracy beyond a reasonable doubt. Therefore, once the jury was instructed that it had to find the defendant guilty of the crimes beyond a reasonable doubt, there was no need to instruct them that they were required to find beyond a reasonable doubt that the defendant was involved in a conspiracy. (Id. at pp. 789-790.) Appellant contends that the reasoning in Belmontes does not survive the reasoning People v. Prettyman, supra, 14 Cal.4th 248, which, according to appellant, in footnote three implicitly approved an instruction on aiding and abetting that requires the jury to find, beyond a reasonable doubt, that the ultimate crime was a natural and probable consequence of a target crime. (Id. at p. 258, fn. 3, setting forth CALJIC No. 3.02.) We do not read footnote three as setting forth such a requirement, and we do not view a finding that a crime is a natural and probable consequence of another crime to be analogous to a finding that persons conspired to commit a particular crime. In any event, in the absence of any explicit ruling by the Supreme Court overturning Belmontes, we will follow the decision in that case.
In an argument similar to that made in connection with his claims of error in instructing on aiding and abetting, appellant also contends that the court failed to instruct the jury on the elements of the target offenses of possession of a revolver by a juvenile and possession of a firearm by an active participant in a criminal street gang. We reject that argument for the same reasons we rejected it previously.
V.
Imperfect Self Defense
Appellant complains that the trial court committed several errors in its instructions on imperfect self-defense.
Voluntary Manslaughter
Appellant, citing People v. Blakeley (2000) 23 Cal.4th 82, 999 P.2d 675, complains that the trial court failed to inform the jury that imperfect self-defense is a defense to voluntary manslaughter. As the jury did not find appellant guilty of voluntary manslaughter, any error would be harmless, and we do not consider the point.
Unlawful or Wrongful Conduct
The court correctly instructed the jury that the defense of imperfect self-defense negates the element of malice. It also correctly instructed the jury that the defense "is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit." The court did not define the kind of "unlawful and wrongful conduct" that would negate the defense. Appellant complains that this failure may have caused the jury to conclude that he could not rely on imperfect self-defense if he did anything wrong or unlawful that in fact provoked the victims to make a show of force, even though the victims were not justified in their show of force.
The court instructed the jury in accordance with CALJIC No. 5:17, that:
"A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.
"As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with or must so appear at the time to the slayer.
"However, this principle is not available and malice aforethought is not negated if the defendant by his unlawful and . . . wrongful conduct created the circumstances which legally justified his adversarys use of force, attack, or pursuit."
The court, however, instructed the jury that the defense is not available when the defendants conduct "created the circumstances which legally justified his adversarys use of force, attack or pursuit." (Italics added.) The court also instructed the jury that the use of force is legally justified only when the actor is threatened with death or great bodily injury. The instructions, taken as a whole, adequately informed the jury that the defense was negated only by conduct that threatened death or great bodily injury.
Intoxication
Appellant concedes that the jury was instructed that voluntary intoxication could negate the specific intent necessary for murder and attempted murder, and that it might consider voluntary intoxication in determining whether appellant had the mental state required of an aider and abettor. He complains, however, that the jury was not instructed that it could consider his voluntary intoxication in connection with the doctrine of imperfect self-defense. Appellant was convicted as an aider and abettor. Appellants intoxication, therefore, ultimately was relevant only as to his intent as an aider and abettor.
VI.
Ineffective Assistance
of Counsel
A number of the points addressed above were not objected-to below, and appellant contends that any waiver of those points resulted from the ineffective assistance of counsel. As we have addressed the merits of appellants arguments, we need not and do not consider this contention.
VII.
Cumulative Error
Appellant contends that even if none of the asserted errors justifies reversal in and of itself, reversal is required by the cumulative effect of the errors. We have found very little error in the proceedings, and what error, or possible error, we have identified, does not justify reversal, either singly or cumulatively. Appellant was not deprived of a fair trial.
The judgment is affirmed.
We concur: Marchiano, P.J., and Margulies, J.