Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF135543. Elisabeth Sichel, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI J.
Jesus Albert Castillo and defendant Raul Eduardo Delcid were both members of a gang called 5150. Defendant was with Castillo when Castillo got into a fistfight with two strangers. During the fight, Castillo pulled out a knife and stabbed both of the strangers; one died, but one survived. Defendant’s participation was limited to “mad-dogging” the strangers before the fight and throwing a couple of punches at one of them.
Defendant and Castillo were tried together, but by separate juries. Defendant’s jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)) and willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664), each with a gang enhancement (Pen. Code, § 186.22, subd. (b)); it also found him guilty of gang participation (Pen. Code, § 186.22, subd. (a)). Defendant was sentenced to a total term of 25 years to life.
Castillo’s jury found him guilty of attempted murder, but found that it was not willful, deliberate, and premeditated; it also found him not guilty of gang participation. It was unable to reach a verdict on the murder charge, and the trial court declared a mistrial on this count.
Delcid appeals. He contends:
1. The trial court erred by excluding evidence of one victim’s criminal history and gang affiliation.
2. The trial court erred by admitting expert testimony that the charged crimes benefited a gang.
3. The natural and probable consequences theory of aiding and abetting violates due process.
4. There was insufficient evidence that murder or attempted murder was a natural and probable consequence of the target offense of disturbing the peace.
5. The trial court erroneously misread two jury instructions.
6. The prosecutor misstated the natural and probable consequences doctrine in closing argument.
7. The prosecutor committed misconduct by asking a “was he lying” question and by “vouching” for prosecution witnesses.
8. The trial court erred by denying defendant’s motion for new trial, which was based on juror misconduct.
9. The trial court erred by imposing $90 in court facilities assessments.
10. If, on retrial, Castillo is acquitted of murder, defendant’s murder conviction must be reversed.
In addition, the People contend that the trial court erred by awarding defendant presentence conduct credit.
Aside from the imposition of $90 in court assessment fees, which the People concede was erroneous, and the award of presentence conduct credit, we find no error. Hence, we will affirm the judgment in all other respects.
I
FACTUAL BACKGROUND
A. The Case for the Prosecution.
On February 16, 2007, a little before 6:00 p.m., victims Gerard Phillips and Joseph were sitting in a parked car outside an apartment complex on Montgomery Street in Riverside. They were waiting for Joseph’s sister, who had gone inside to buy some marijuana.
Phillips was also known as Jerome.
Joseph was allowed to testify under his first name alone.
Joseph needed to “take a leak, ” so he got out of the car and entered the apartment complex, heading for some dumpsters in the back. He saw defendant and Castillo walking toward him. They both “mad dogged” him. He “mad dogged” them back.
As they were going past him, Castillo said, “Where you from?” Joseph replied, “I don’t bang.” Castillo then announced that he was from “5150.” Joseph believed he “was going to get jumped.”
Castillo “jumped at” Joseph, his arm bent and his hand in a fist, “about to swing.” Joseph, however, literally beat him to the punch. They “exchanged blows....” At first, defendant just stood there, but after Joseph knocked Castillo down, defendant waded in and “exchanged a few blows, maybe one or two, ” with Joseph. Castillo then tackled Joseph, knocked him down, and stabbed him four times.
Meanwhile, Phillips ran up. He pulled Castillo off Joseph. Castillo “scuffl[ed]” with Phillips and stabbed him four times. Castillo and defendant then ran away. Joseph survived. Phillips died of his wounds.
Jennifer Avalos, who had been in the parked car with Joseph and Phillips, told the police that they both got out at the same time.
Juan Arteaga testified that in February 2007, he was at his friend Beto’s apartment in the complex. According to Arteaga’s statement to the police, Castillo and a second person arrived. Castillo was holding a bloody knife and said that he had just stabbed somebody.
At trial, however, Arteaga denied hearing Castillo say that he had stabbed somebody. Castillo did tell him about a fight, but it was Beto who said that Castillo had stabbed somebody. Arteaga also admitted that Castillo was holding a knife, but he added that he and others in the area commonly carried a knife for protection.
Arteaga identified defendant as the person who arrived with Castillo. He also testified that both Castillo and Beto were members of a gang called 5150. He himself was a member of West Side Verdugo. Arteaga showed the police Beto’s apartment, but they were never able to identify or locate Beto.
After Castillo and defendant were arrested, they were videotaped while in a room together. Defendant repeatedly pointed to the video cameras. They spoke in whispers, covering their mouths. However, this exchange was audible:
“DELCID: They’re trying to say that I know you.
“CASTILLO: Yeah, they know.
“DELCID: Huh?
“CASTILLO: They know.
“DELCID: Yeah? I don’t know you. That’s what I told them. I don’t. Maybe? Hmm?”
Detective James Simons, a gang expert, identified 5150 as a Hispanic gang. It was also known as Mexican Royalty, MR, 5150 MR, 5150 Original, and Varrio. It was a relatively new gang that was trying to take over areas already claimed by older gangs, such as Arlanza 13. The apartment complex was in Arlanza 13’s territory.
The primary activities of 5150 included murder, attempted murder, shooting at an occupied dwelling, assaults with knives and other weapons, weapons violations, and drug sales. At least two members had been convicted of murder.
According to Detective Simons, Castillo was a member of 5150. His moniker was “Troubles.”
In Detective Simons’s opinion, defendant was also a member of 5150. In April 2005, defendant had been on the side of 5150 in a fight with a rival gang. At the time, he admitted to a police officer that he “claimed” 5150 and that his moniker was “Lil Whopper.” Defendant had also been photographed with a known 5150 member while the latter was throwing a gang sign.
In April 2006, a police officer viewed a MySpace page that gave the owner’s name as Raul Delcid, with the nickname of Rudy. It said that he “likes to hang out with his homies from MR.” His friends list included three members of 5150. A fourth member of 5150 had left comments on the site. The page, however, had since been changed, and the officer had lost both a downloaded copy and a printed copy that he had made at the time.
Castillo told police that, when the stabbing occurred, he was with “Rudy.”
Detective Simons testified that one way a gang member will intimidate someone is by “hitting him up, ” i.e., asking him where he is from, which means what gang he belongs to. “More often than not it ends up in violence.” Even if the person who is hit up denies being a gang member, he may be attacked. Typically, gang members will hit up others on their own turf. However, they might hit up someone outside their own turf as a way of claiming that territory.
In response to a hypothetical question, Detective Simons testified that the charged crimes benefited 5150 by enhancing the gang’s “violent reputation.” A gang, such as 5150, that is looking to establish itself in an area previously controlled by another gang, such as Arlanza 13, moves in and starts committing violent crimes. Moreover, “[m]embers of that community need to fear that gang in order for [it] to continue to exist.” Castillo yelled “5150” so the gang would get credit.
Detective Simons also testified that the charged crimes were committed in association with 5150 “because [they] involved two members and then ultimately a third member who helped hide them out while the police were canvassing the area.”
B. The Case for the Defense.
Castillo testified in his own behalf. He said that he and defendant were going to get pizza when they encountered “two guys.” “[T]here was an arm brush[.]” Castillo turned around.
The shorter of the two men (presumably Joseph) said, “What’s up?” and asked, “[A]re you getting crazy on me?” He then punched Castillo in the face. Castillo fell to the ground, and both of the other men started hitting and kicking him. Castillo was afraid they were going to kill him. He had a folding knife in his pocket that he used for work. He took it out and “just kept swinging it, ” “to get them off of [him].” The shorter man ran away immediately; the taller man kept hitting him for “a little bit, ” but then he ran away, too.
Castillo denied “mad dogging” anyone, asking anyone where they were from, yelling “5150, ” knowing Beto, or going to Beto’s apartment. He denied being a member of 5150. He testified that the “MR” tattoo on his chest stood for his grandmother’s initials.
Enrique Tira, a private investigator and former police officer, testified as a gang expert. In Tira’s opinion, defendant was not a gang member. Also in his opinion, the crimes were not committed to promote or benefit 5150.
C. Rebuttal.
In rebuttal, a video of the police interview with Castillo was played for the jury. In it, Castillo admitted that he was a member of 5150 and that his “MR” tattoo stood for Mexican Royalty.
II
THE EXCLUSION OF EVIDENCE OF PHILLIPS’S CRIMINAL BACKGROUND
Defendant contends the trial court erred by excluding evidence of victim Phillips’s criminal history and gang affiliation.
A. Additional Factual and Procedural Background.
The prosecution moved in limine to exclude any evidence of Phillips’s criminal history or “gang affiliation” as irrelevant.
Counsel for Castillo argued that the evidence was relevant to whether Phillips was the aggressor. He stated, “We believe that Mr. Phillips was the aggressor in this case. There’s going to be testimony to that effect.” He offered to prove that Phillips had a prior conviction for robbery and had been charged with unlawful possession of a firearm. Phillips had been released from prison just three days before his death.
When the trial court asked defendant’s counsel if he wanted to be heard, he replied: “... I’ll reserve at this time because I don’t know - at this point I don’t believe that Mr. Phillips’ history or gang affiliation is relevant, but my experience has taught me during the course of a trial it may be an issue. So at this time I’ll reserve comment on it.”
The prosecutor argued essentially that there was no evidence that Phillips was the aggressor. He represented that Phillips was not even the first person whom the defendants confronted; rather, he “ran in to help and then got stabbed....”
The trial court excluded the evidence. It explained: “If he’s the second person that came to the assistance of the first person, I’m going to exclude it.” However, it noted that its ruling was “without prejudice, ” and added that, “[i]f things change, we can talk about it again.”
B. Analysis.
We question whether defendant’s trial counsel preserved his present contention for purposes of appeal. At a minimum, both defendants forfeited any claim that Phillips’s “gang affiliation” (as opposed to his criminal history) was relevant by failing to make an offer of proof on this point. (Evid. Code, § 354, subd. (a).) We have no way of knowing whether they in fact had evidence that Phillips was a member of any gang (much less whether that gang was hostile toward 5150). We therefore consider defendant’s contention solely with respect to the evidence of Phillips’s criminal history.
In a criminal action, evidence of the victim’s character is admissible to prove that the victim acted in conformity with that character. (Evid. Code, § 1103, subd. (a)(1).) Thus, when a defendant is claiming self-defense, evidence of the violent character of the victim may be relevant to show that the purported victim was in fact the aggressor. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447; People v. Rowland (1968) 262 Cal.App.2d 790, 797-798.)
However, evidence of the victim’s violent character “is proper only after a foundation has been laid tending to show that the victim was the aggressor. [Citation.]” (People v. Rigney (1961) 55 Cal.2d 236, 245.) There was no such foundation here. According to the prosecutor, Phillips was not even on the scene when the fight broke out; he did not join the fight until after Castillo had already stabbed Joseph. Admittedly, counsel for Castillo did claim that there would be testimony that Phillips was the aggressor. However, this was too vague to constitute a valid offer of proof. (People v. Carlin (2007) 150 Cal.App.4th 322, 334 [“The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness.”].)
Even more important, the trial court made its ruling without prejudice; it agreed to reconsider the issue if any evidence was presented that Phillips was the aggressor. Ultimately, Castillo did testify that Phillips and Joseph were together when he first encountered them and that he did not draw his knife until Phillips had entered the fight. At that point, however, neither defendant asked the trial court to reconsider its ruling. Accordingly, they both forfeited the contention that Castillo’s testimony constituted a sufficient foundation for the admission of evidence of Phillips’s criminal history.
We therefore conclude that defendant has not shown that the trial court abused its discretion by excluding evidence of Phillips’s criminal history and asserted gang affiliation.
III
THE ADMISSIBILITY AND SUFFICIENCY OF THE GANG EVIDENCE
Defendant contends the trial court erred by admitting the gang expert’s testimony that the charged crimes benefited the gang.
A. Additional Factual and Procedural Background.
Defendant filed a motion in limine to exclude or, in the alternative, to limit gang evidence. In it, he largely stated general legal principles, without attempting to apply then to any particular testimony. However, he did object to expert testimony that any particular individual had any particular knowledge or intent. He also objected to an expert’s opinion that the crimes were committed for the benefit of a gang, to the extent that it was based on “profile evidence.” He asked the trial court to hold a hearing under Evidence Code section 402.
The prosecutor stated that he was not going to ask any expert to testify to a defendant’s intent or other state of mind. The trial court then made a number of rulings regarding gang evidence that are not challenged in this appeal. Thereafter, it held an Evidence Code section 402 hearing at which the prosecution’s gang expert testified. At the end of the hearing, the trial court found that the expert was qualified. The court and counsel agreed that, if any gang evidence issues came up at trial that the court had not yet ruled on, the parties could object at that time.
B. Analysis.
Defendant’s motion in limine failed to preserve his present contentions. “[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when...: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context.” (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) If a motion in limine does not satisfy these requirements, the appellant must object again when the evidence is offered. (Morris, at p. 190.)
Here, the motion in limine was not directed at any particular, identifiable body of evidence. Moreover, it did not permit the trial court to determine the evidentiary questions in their proper context. By and large, it raised objections (such as the objection to “profile evidence”) that were different from the arguments defendant is now raising on appeal.
In addition, defense counsel failed to secure a ruling on most of the objections that were raised in the motion in limine. Defendant does not single out any of the rulings that the trial court did make on the motion in limine as erroneous. Instead, he points to the evidence introduced at trial. It was agreed, however, that any objections that the trial court had not yet ruled on could and should be raised as the trial progressed. During trial, defense counsel did not object to any of the expert testimony that defendant is challenging in this appeal.
Separately and alternatively, we also reject defendant’s challenges to the gang expert’s testimony on the merits.
To support the gang allegations, the prosecution was required to prove that defendant committed the charged offenses “for the benefit of, at the direction of, or in association with a[] criminal street gang....” (Pen. Code, § 186.22, subd. (b)(1).) “[E]xpert testimony is admissible on the issue of ‘“whether and how a crime was committed to benefit or promote a gang.”’ [Citations.]” (People v. Williams (2009) 170 Cal.App.4th 587, 621 [Fourth Dist., Div. Two].)
Defendant argues that, under People v. Albarran (2007) 149 Cal.App.4th 214, “there was insufficient evidence... that this stabbing was done with the intent to gain respect....” In Albarran, “two male Hispanics with shaved heads” fired shots at a house during a party. (Id. at p. 217.) There was sufficient (albeit conflicting) evidence that Albarran was one of the shooters. (Id. at pp. 218-219.) A gang expert testified that the shooting benefited Albarran’s gang “because: (1) the shooting occurred in Palmdale; (2) it occurred at a party and gang members often commit crimes during parties; and (3) more than one shooter was involved. [The expert] stated that when these crimes were committed [Albarran’s gang was] involved in an active gang war. [The expert] also testified that [the homeowner] was a member of... the Pierce Boys Gang but he admitted he... knew of no rivalry between Albarran’s gang and the Pierce Boys Gang.” (Id. at p. 221.)
Defendant’s reasoning is somewhat roundabout. He does not contend that the gang enhancements must be reversed because there was insufficient evidence of the “benefit/direction/association” element. Rather, he contends that, because there was insufficient evidence of the “benefit/direction/association” element, other evidence concerning 5150 was either irrelevant or unduly prejudicial. His apparent strategy is to obtain a reversal of the entire judgment, rather than just the gang enhancements.
The trial court granted a new trial on the gang enhancements, based on insufficiency of the evidence. However, it denied a new trial on the substantive offenses. (People v. Albarran, supra, 149 Cal.App.4th at p. 222.) It evidently reasoned “that at least some of the gang evidence was relevant and admissible to the issue of motive or intent for the underlying crimes, irrespective of the fact that the gang evidence was not sufficient to prove the gang allegations....” (Id. at p. 226.)
The appellate court held that there was insufficient evidence that the shooting was gang-motivated: “At trial the prosecutor argued the motive for the shooting was to gain respect and enhance the shooter’s reputation - essentially to ‘earn one’s bones’ within the gang (i.e., the respect motive). In our view, however, there was insufficient evidence to support the contention that this shooting was done with the intent to gain respect. On the contrary, the motive for the underlying crimes... was not apparent from the circumstances.. [The expert] noted a gang member gains such respect if his identity (or the identity of his gang) becomes known to the victim(s), within the gang community and/or the neighborhood. Yet this shooting presented no signs of gang members’ efforts in that regard - there was no evidence the shooters announced their presence or purpose - before, during or after the shooting. There was no evidence presented that any gang members had ‘bragged’ about their involvement or created graffiti and took credit for it.... In the final analysis, the only evidence to support the respect motive is the fact of Albarran’s gang affiliation.” (People v. Albarran, supra, 149 Cal.App.4th at p. 227.)
Here, unlike in Albarran, there was evidence of a specific gang rivalry. 5150 was trying to take over territory from Arlanza 13. The crime took place in Arlanza 13 territory. While there was no evidence that the victims were members of Arlanza 13, it is inferable that Castillo and defendant thought they were, as they mad-dogged the victims and Castillo asked where they were from. In any event, the gang expert testified that 5150 would benefit from any violent crime committed in Arlanza 13 territory. Also - and again, unlike in Albarran - Castillo yelled “5150” right before the fight broke out. Thus, there was ample evidence, beyond just defendant’s gang affiliation, that the crimes were committed to benefit a gang.
This fact also distinguishes People v. Ochoa (2009) 179 Cal.App.4th 650 [Fourth Dist., Div. Two]. (See id. at p. 662.)
We also note, alternatively, that there was sufficient evidence that the crimes were committed in association with a gang. In Albarran, there was apparently no evidence of the identity of the second shooter. Here, however, both Delcid and Castillo were members of 5150, and they committed the crimes together. This was sufficient evidence to support the “benefit/direction/association” element. (People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198 [Fourth Dist., Div. Two].)
Defendant further argues that the gang expert testified that defendant actually had a certain specific intent, in violation of People v. Killebrew (2002) 103 Cal.App.4th 644. “In People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 [44 Cal.Rptr.3d 237, 135 P.3d 659], the California Supreme Court stated, ‘... we read Killebrew[, supra, 103 Cal.App.4th 644 as merely “prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.” [Citations.] Even if we assume, without deciding, that Killebrew is correct in this respect, it has no relevance here. [The expert witness] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. “Generally, an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’” [Citations.]’ (Fn. omitted.) The Supreme Court further stated, ‘there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.’ [Citation.]” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1513.) Here, the gang expert testified properly, in hypothetical form. Moreover, he merely testified that the charged crimes would tend to benefit the gang. It was left to the jury to infer (or not) that they were in fact committed to benefit the gang. (See id. at pp. 1513-1514.)
We note again that this argument was not properly preserved. In response to defendant’s motion in limine, the prosecutor promised he would not introduce any such evidence. During trial, defendant never objected to any of the gang expert’s testimony on the ground that the prosecutor had broken this promise.
IV
THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE
Defendant raises a number of contentions relating to the natural and probable consequences doctrine.
“Under [this doctrine], 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 perpetrator’s 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 defendant’s 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.” (People v. Prettyman (1996) 14 Cal.4th 248, 254.)
“Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
“Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’ [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920.)
A. Violation of Due Process.
Defendant contends that the natural and probable consequences doctrine violates due process because it creates a conclusive presumption of malice and thus allows a conviction of murder or attempted murder without malice.
The California Supreme Court has repeatedly held to the contrary. (People v. Richardson (2008) 43 Cal.4th 959, 1021, and cases cited; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) We are required to follow these precedents. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In a single-sentence argument, defendant also contends that Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 403, concerning the natural and probable consequences doctrine, failed to indicate that an aider and abettor can be found guilty of a lesser offense than a perpetrator. Defendant forfeited this contention by failing to state it under a separate heading and by failing to support it with any actual analysis of the language of CALCRIM No. 403. (See People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
B. The Sufficiency of the Evidence of Disturbing the Peace as the Target Offense.
Defendant contends that there was insufficient evidence that murder or attempted murder was a natural and probable consequence of disturbing the peace.
The caption above this argument does not actually specify this issue (rather, it specifies basically the same due process issue that we already discussed in part IV.A, ante). Thus, defendant has forfeited this argument. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. McElroy (2005) 126 Cal.App.4th 874, 884, fn. 3.) However, we also reject it on the merits, for two alternative reasons.
First, there was sufficient evidence. Defendant argues that there was no evidence that he knew Castillo had a knife or would otherwise use lethal force. However, “prior knowledge that a fellow gang member is armed is not necessary to support a defendant’s murder conviction as an aider and abettor. [Citations.] Likewise, prior gang rivalry, while reflecting motive, is not necessary for a court to uphold a gang member’s murder conviction under an aiding and abetting theory. [Citation.] Thus, although evidence of the existence of the above listed factors may constitute sufficient evidence to support an aider and abettor’s murder conviction under the natural and probable consequence theory, these factors are not necessary to support such a conviction. [Citation.]” (People v. Medina, supra, 46 Cal.4th at pp. 921-922.)
In People v. Montes (1999) 74 Cal.App.4th 1050, there had been a previous confrontation between defendant Montes, who was affiliated with the OKM gang, and victim Garcia, who was affiliated with the rival VPL gang. On the night in question, Montes and his fellow OKM members attacked Garcia. Flores, who was with the victim, yelled something about a gun, which caused the OKM members to retreat. However, Cuevas, another OKM member, got a gun from a vehicle and shot Garcia. (Id. at p. 1053.)
On appeal, Montes argued that the jury should not have been instructed on either simple assault or disturbing the peace as the target offense, because there was no evidence that he knew that Cuevas, the perpetrator, was armed. (People v. Montes, supra, 74 Cal.App.4th at p. 1054.) The appellate court disagreed: “When rival gangs clash today, verbal taunting can quickly give way to physical violence and gun fire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. Given the great potential for escalating violence during gang confrontations, it is immaterial whether Montes specifically knew Cuevas had a gun. [Citations.]” (Id. at p. 1056.)
Here, defendant and Castillo were 5150 members in rival Arlanza 13 territory. According to the gang expert, 5150 was one of the more violent gangs in Riverside; it had to be “extremely violent” in order to establish itself in an area already claimed by other gangs. Castillo exhibited an intent to engage in a gang-motivated assault by mad-dogging Joseph, asking where he was from, and announcing that he himself was from 5150. Defendant backed him up by likewise mad-dogging Joseph and by punching Joseph. Moreover, it was known that “everybody” in the area carried knives for self-protection.
Just as in Montes, the very fact of a gang confrontation carried with it great potential for escalating violence. Moreover, it was fairly inferable that a 5150 member would not have initiated such a confrontation unless he came prepared with a knife or a gun. And finally, even though there did not have to be evidence that defendant knew that Castillo was armed, the jurors could reasonably infer that he did know.
Defendant relies on People v. Hoang (2009) 145 Cal.App.4th 264. There, however, it was the trial court, not the appellate court, that ruled that there was insufficient evidence of disturbing the peace as the target offense; the trial court therefore instructed on aggravated assault as the target offense instead. On appeal, the defendant argued that it was error to instruct on aggravated assault. The appellate court merely held that this was not an abuse of discretion. Significantly, the parties were no longer arguing that there had (or had not) been sufficient evidence to instruct on disturbing the peace. “‘An appellate decision is not authority for everything said in the court’s opinion but only “for the points actually involved and actually decided.”’ [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 155.)
We also reject this contention because it does not appear that the asserted error was prejudicial. The jury was instructed on aggravated assault, battery, and disturbing the peace as alternative target offenses. Thus, defendant is essentially arguing that one of these alternative theories was not supported by sufficient evidence.
“When one of the theories presented to a jury is legally inadequate, such as a theory which ‘“fails to come within the statutory definition of the crime”’ [citation], the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless ‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’ [Citation.]
“In contrast, when one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, we apply a different standard. [Citation.] In that instance, we must assess the entire record, ‘including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’ [Citation.] We will affirm ‘unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.’ [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1233, italics added.)
Here, the asserted error is purely a matter of factual inadequacy. “An appellate court necessarily operates on the assumption that the jury has acted reasonably, unless the record indicates otherwise.” (People v. Guiton (1993) 4 Cal.4th 1116, 1127.) Accordingly, “[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (Id. at p. 1129.) There is no such affirmative indication here.
C. The Trial Court’s Misreading of Two Jury Instructions.
Defendant contends that the trial court erred by misreading two jury instructions on disturbing the peace.
1. Additional factual and procedural background.
The trial court misread CALCRIM No. 2688 (Disturbing the Peace: Fighting or Challenging Someone to Fight), as follows:
“To prove that the defendant is guilty of this crime, the People must prove that the defendant lawfully [sic; should have been “willfully and unlawfully”] fought or challenged someone else to fight and the defendant and the other person were in a public place when the fight occurred or the challenge was made and the defendant did not act in self-defense. Someone commits an act [sic; omitting “willfully”] when he or she does it willingly or on purpose.”
It also misread CALCRIM No. 2690 (Disturbing the Peace: Offensive Words), as follows:
“To prove that the defendant is guilty of this crime, the People must prove that the defendant used offensive words that were inherently likely to provoke an immediate violent reaction, and when the defendant used those words, he was in a public place. And a person uses offensive words inherently likely to provoke an immediate reaction [sic; omitting “violent”] if he or she says something that is reasonably likely to provoke someone else [sic; omitting “to react violently”] and when he or she makes that statement there is a clear and present danger that the other person will immediately erupt in a [sic; should have been “into”] violence.”
2. Analysis.
“‘When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citation.]’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1075.) The trial court’s inadvertent misreading of an instruction is not error if no reasonable juror would have misunderstood the instruction. (People v. Crittenden (1994) 9 Cal.4th 83, 138.)
Here, the jurors would not have misunderstood CALCRIM No. 2688. It would be absurd to suppose that a defendant who lawfully fights someone or challenges someone to fight would be guilty of disturbing the peace, but a defendant who does so unlawfully would not. Admittedly, the trial court’s first omission of the word “willfully” tended to remove a necessary mental element from the definition of the crime. Its second omission, however, effectively put it back, by defining an act that is not committed willfully as legally not committed at all.
The jurors likewise would not have misunderstood CALCRIM No. 2690. Even though it omitted the words “to react violently” from the provocation prong, it required the jurors to find a clear and present danger of an immediate violent reaction.
In any event, “the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions. [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 255.) Here, the jury did receive such instructions.
D. The Prosecutor’s Discussion of the Natural and Probable Consequences Doctrine in Closing Argument.
Defendant contends that the prosecutor offered the jury a legally erroneous theory in closing argument.
1. Additional factual and procedural background.
In closing argument, in discussing the natural and probable consequences doctrine, the prosecutor stated:
“Say... you open up your Saturday morning paper... and you see an article.... [I]t reads: Two gang members in rival territory hit somebody up, hit up a victim, asked where he’s from. They yell their gang name. It’s an area that’s known for knives and it’s a gang that’s particularly violent.
“Would any of you be surprised to learn that from that stabbings occur? Would any of you think about reading that article and say I can’t believe that happened? That’s shocking to me[?] Of course you wouldn’t because you’re reasonable people.... If you would not be surprised, it’s natural and probable. That’s our standard.” (Italics added.)
Defense counsel did not object.
2. Analysis.
Defendant argues that the prosecutor presented the jury with “a legally incorrect theory.”
The jury, however, was fully instructed on the natural and probable consequences doctrine. In particular, it was instructed that “[a] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” (CALCRIM No. 403.) The trial court also instructed: “You must follow the law as I explain it to you.... If you believe that the attorneys’ comments on the law conflict with these instructions, you must follow my instructions.” (CALCRIM No. 200.)
Thus, “the court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis.” (People v. Morales (2001) 25 Cal.4th 34, 43.)
Defendant does not specifically argue that the prosecutor’s remarks constituted misconduct. Thus, he has forfeited any such contention. Alternatively, however, if only out of an excess of caution, we also consider this contention on the merits.
In arguing that other asserted instances of misconduct were prejudicial or were not forfeited, defendant refers to the prosecutor’s “improper argument, ” his “misstatement of the law, ” and his “expansive explanation of the natural and probable consequences doctrine.” These fleeting references are inadequate to preserve the contention. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)
“To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct. [Citation.]” (People v. Martinez (2010) 47 Cal.4th 911, 956.) Here, defendant’s trial counsel did not object or request an admonition.
Defendant argues that an admonition would not have cured the harm. We disagree. If defense counsel had objected, the trial court could have corrected any misstatement. Moreover, it could have reprimanded the prosecutor, thereby emphasizing to the jury the gravity of the misstatement.
Defendant therefore argues, alternatively, that his trial counsel’s failure to object constituted ineffective assistance.
“‘“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]”’ [Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
“‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1290.) “[T]he appellate record rarely demonstrates ‘that the failure to object was the result of counsel’s incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel’s actions or omissions can be explored.’ [Citations.]” (People v. Salcido, supra, 44 Cal.4th at p. 152.)
Here, “[b]ecause the record does not show the reasons for counsel’s actions, defendant’s claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 1001-1002 [failure to object to asserted prosecutorial misconduct, including misstating the law in closing argument].)
Moreover, we cannot say that there could be no satisfactory explanation for defense counsel’s failure to object. Once again, the jury had already been properly instructed on the natural and probable consequences doctrine. Also, earlier in his closing argument, the prosecutor had already explained the natural and probable consequences doctrine in the following terms, which defendant does not challenge as erroneous:
“We look at all the circumstances. We look at all the circumstances and look at what a reasonable person would expect to happen in the defendant’s position.... [N]ot what a certain defendant actually expected to happen, but what would a reasonable person expect to happen.
“When they commit that first crime, another one happens. Natural and probable. You have a definition of it. It means one that’s likely to occur if nothing unusual happens, something that’s likely to occur.”
Moreover, the facts that the prosecutor recited did tend to show that a murder or attempted murder was likely to happen: “Two gang members in rival territory hit somebody up, hit up a victim, ask him where he’s from. They yell their gang name. It’s an area that’s known for knives and it’s a gang that’s particularly violent.” (See part IV.B, ante.)
Under the circumstances, defense counsel could reasonably conclude that the prosecutor’s isolated mention of “surprise[]” as the “standard” was not likely to actually mislead the jury.
V
PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed misconduct in two respects.
A. “Was He Lying” Question.
First, defendant contends that the prosecutor committed misconduct by asking the defense gang expert whether a prosecution witness had been lying.
1. Additional factual and procedural background.
Officer Shawn Casteel testified that defendant had admitted being a member of 5150, with the moniker “Lil Whopper.”
Enrique Tira, the defense gang expert, then testified that, in his opinion, defendant was not a gang member. On cross-examination, the prosecutor asked Tira:
“Q.... [W]as [Casteel] consistent the entire time on whether or not [d]efendant Delcid admitted he was a gang member?
“A. That portion, yes.
“Q. And whether or not [d]efendant Delcid said he was Lil Whopper?
“A. That’s correct.
“Q. And it’s a question of truth at this point, right, whether or not Officer Casteel is telling the truth in that incident; right?
“A. That’s correct.
“Q. So as you sit there today, are you willing to say that Officer Casteel was lying about that incident?
“[COUNSEL FOR DELCID]: Objection. The veracity of witnesses.
“THE COURT: Overruled.
“THE WITNESS: No.” (Italics added.)
2. Analysis.
“... ‘[C]ourts should carefully scrutinize [a prosecutor’s] “were they lying” questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.’” (People v. Tafoya (2007) 42 Cal.4th 147, 178.)
Tira had no personal knowledge of whether defendant was a gang member. Because he was an expert, his opinion regarding the reliability of information that he considered (or did not consider) in forming his opinion was relevant. (See Evid. Code, § 801, subd. (b) [expert’s opinion may be based on any reliable matter, even if inadmissible]; Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1007 [“[a]n expert’s opinion is only as good as the facts upon which it is based”] [Fourth Dist., Div. Two].) However, asking him whether Officer Casteel was lying - as opposed to whether Officer Casteel’s information was reliable - was argumentative.
Thus, the trial court erred by overruling defendant’s objection to this question. The error, however, was harmless. The prosecutor was making a valid point, albeit in an argumentative way - Tira’s opinion that defendant was not a gang member lacked credibility, because defendant had admitted to Officer Casteel that he was a gang member. Even if the prosecutor had asked the question in a nonargumentative manner, the jury would still have gotten the point. Moreover, the prosecutor would have been free to argue the matter in closing.
Simply asking the question did not constitute misconduct. “‘“Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.”’ [Citation.] Nothing in the record suggests the prosecutor sought to present evidence []he knew was inadmissible. [Citation.] The prosecutor only asked the question once and did not repeatedly ask it to berate [Tira] or force him to call [Officer Casteel] a liar in an attempt to inflame the passions of the jury. [Citation.]... The prosecutor’s sole question was neither deceptive nor reprehensible, and did not constitute misconduct.” (People v. Hawthorne (2009) 46 Cal.4th 67, 98.)
B. “Vouching” for Prosecution Witnesses.
Second, defendant contends that the prosecutor committed misconduct in closing argument by “vouching” for certain prosecution witnesses’ credibility.
1. Additional factual and procedural background.
In closing argument, the prosecutor stated: “Joseph and Jennifer [Avalos] were honest about everything, not just those things that made them look good.” (Italics added.)
He also stated: “Why would Arteaga come and say these things? There’s no motive for Arteaga to come and say these things unless they’re true.” (Italics added.)
2. Analysis.
“A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record. [Citations.]” (People v. Martinez, supra, 47 Cal.4th at p. 958.)
Here, the prosecutor’s argument was based entirely on matters in the record. With respect to Joseph and Jennifer, his point was that they were credible because they had even testified to matters that did not make them look good - in Jennifer’s case, that she was at the apartment complex to buy marijuana; in Joseph’s case, that he participated in the mad-dogging. With respect to Arteaga, his point was simply that Arteaga had no known reason to lie. The prosecutor never stated or implied that he had any knowledge relevant to the witnesses’ credibility that went beyond the evidence in the record.
Thus, this was not misconduct.
VI
JURY MISCONDUCT
Defendant contends the trial court erred by denying his motion for new trial, which was based on juror misconduct.
A. Additional Factual and Procedural Background.
1. Defendant’s motion for new trial.
Defendant filed a motion for a new trial. It was supported mainly by a declaration by Juror No. 3 but also by a declaration by Juror No. 1.
Juror No. 3 had contacted defense counsel on her own initiative the day after the verdict was rendered.
Defendant also sought to introduce an investigator’s unsworn summary of his interview with Juror No. 12. Apparently Juror No. 12 had died after the interview. The prosecutor objected to the summary, and the trial court sustained the objection. In this appeal, defendant does not challenge this evidentiary ruling. Accordingly, we disregard the investigator’s summary.
a. Declaration of Juror No. 3.
According to Juror No. 3, during deliberations, Juror No. 1 had stated that defendant “doesn’t score any points for being young.”
Juror No. 1 and Juror No. 7 had both stated that “if [defendant] did not testify, it was because he was guilty....” Juror No. 7 had also stated that defendant not testifying was a “tricky defense tactic.”
Juror No. 2 “kept bringing up the possible sentence and saying, ‘I just can’t get over the idea that we’ll be sentencing this kid to death, or to life in prison.’” Juror No. 12 responded, “No death, at most life.” When other jurors asked her how she knew that, she said, “I found an article on the Internet and they got the [two] defendant[s] mixed up[.]”
b. Declaration of Juror No. 1.
According to Juror No. 1, “we all agreed” that defense counsel “was extremely smart for not putting [defendant] on the stand....” However, she did not remember anybody saying that defendant did not testify because he was guilty. She also did not remember Juror No. 7 referring to tricky defense tactics.
Juror No. 1 agreed, however, that one juror said “it would not be a death sentence because she looked up something [o]n the internet....”
2. The prosecution’s opposition.
In opposition to the motion, the prosecution submitted four additional jurors’ declarations.
a. Declaration of Juror No. 8.
According to Juror No. 8, “[t]he subject of the defendant not testifying was mentioned in passing by someone, ” but “another juror reminded the jury that the defendant does not have to testify and it is not a consideration for the jury.”
Also, “[t]he subject of punishment did come up as some jurors were concerned with convicting defendant Delcid of first degree murder because he looked so young.”
“One juror briefly mentioned seeing an article about the case in the newspaper.... The only comment... was the writer got the two defendants mixed up as far as what they were charged with. The jury quickly moved past the comment and at no point was it the subject of any conversation. After the trial, I read the... article..., and [it] contained nothing beyond what was presented at trial.”
The prosecution introduced a copy of the article. It summarized the opening statements of both sides. It did mistakenly indicate that defendant fought with Joseph first, followed by Castillo, rather than the other way around. It did not refer in any way to the possible punishment.
b. Declaration of Juror No. 9.
Juror No. 9 testified, “the fact that the defendant did not testify came up very briefly, but the subject was quickly shot down and we returned to discussing the evidence and the law.”
“Some jurors briefly mentioned that they were concerned with the punishment of the defendant, but then we agreed to stick to the law and the facts of the case in making our decision.”
“I never heard anyone discussing or engaging in any outside research on the internet or otherwise.”
c. Declaration of Juror No. 11.
Juror No. 11 testified:
“I do not recall the subject of the defendant testifying ever being brought up during the deliberation process.
“I recall the issue of punishment being raised in a conversation, but only in reference to the difficulty of the decision that the jury had to make. The subject of punishment did not play a role in the deliberation conversations....
“I do not recall the subject of an internet article or any other type of outside research ever being addressed during the deliberations.”
d. Declaration of Juror No. 2.
According to Juror No. 2, “punishment... was mentioned briefly but then we moved on to the facts and the law.”
A “newspaper or internet article... may have come up briefly, ” but if so, “it was only mentioned in passing and it was not a subject of discussion during deliberations.”
He did not remember whether or not the subject of the defendant testifying ever came up, but if it did, “it was mentioned only briefly and I do not recall what was said exactly.”
3. The hearing on the motion.
The trial court held an evidentiary hearing on the motion for new trial.
The prosecution called one witness, Juror No. 7, who had been the presiding juror. He remembered one juror mentioning the fact that defendant did not testify: “[I]t came up in the context of the fact that [Castillo] had testified and had done so much damage to himself.” However, he did not recall what was said. In any event, “[i]t was shut down very quickly” by other jurors, who responded that the topic was inappropriate.
The same juror had mentioned punishment, but again, other jurors promptly responded that the topic was inappropriate.
After the verdict forms had already been signed, one juror had mentioned that her husband had told her about an article about the trial in a newspaper or on the internet. She also said that there were some misstatements in it.
4. The trial court’s ruling.
The trial court denied the motion. In a thorough written analysis, it found that there had been juror misconduct in mentioning: (1) defendant’s youth, (2) the possible punishment, (3) the fact that defendant did not testify, and (4) the newspaper article. However, it further found that the presumption of prejudice arising from the misconduct had been rebutted.
B. Analysis.
“Misconduct by a juror raises a rebuttable presumption of prejudice. [Citation.]” (People v. Bennett (2009) 45 Cal.4th 577, 626.) “The presumption of prejudice ‘“may be rebutted... by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.” [Citations.]’ [Citations.] ‘Whether prejudice arose from juror misconduct... is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]’ [Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1309.) “‘However, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.”’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 726-727.)
“Defendant contends the California standard for determining prejudice resulting from juror misconduct is inconsistent with federal law. However, we have consistently adhered to the ‘substantial likelihood’ standard set forth above. [Citations.] Defendant provides neither controlling authority nor persuasive argument that we should alter this settled approach. In any event, as the discussion below establishes, there is no ‘reasonable possibility’ (the standard defendant invokes) that defendant was prejudiced by juror misconduct, whether his claims are considered individually or cumulatively.” (People v. Loker (2008) 44 Cal.4th 691, 747-748.)
Defendant argues that the trial court failed to conduct an adequate inquiry by not hearing live testimony by the juror who initially complained, Juror No. 3. He relies, however, on cases dealing with whether the trial court must hear any live testimony at all. (E.g., People v. Hedgecock (1990) 51 Cal.3d 395, 415-416; Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 974.) Here, the trial court held an evidentiary hearing at which defendant could have called Juror No. 3 to testify. Defendant chose not to do so. The trial court was not required to override defendant’s decision. And certainly defendant cites no authority to support his suggestion that it was.
We turn, then, to the specific instances of misconduct.
1. Mention of the fact that defendant did not testify.
“‘[B]y violating the trial court’s instruction not to discuss defendant’s failure to testify, the jury committed misconduct. [Citations.]...’ [Citation.]” (People v. Avila, supra, 46 Cal.4th at p. 726.) However, “the offending juror was immediately reminded he could not consider this factor and the discussion ceased. [Citation.]” (Id. at p. 727.) This was sufficient to rebut the presumption of prejudice. (Ibid.; see also People v. Loker, supra, 44 Cal.4th at p. 749.)
2. Mention of the possible punishment.
A juror’s refusal to follow the court’s instruction not to consider penalty constitutes misconduct. (People v. Engelman (2002) 28 Cal.4th 436, 445.) Here, once again, the fact that “the discussion was brief and was met with an admonition” from other jurors is sufficient to rebut the presumption of prejudice. (People v. Loker, supra, 44 Cal.4th at p. 750.)
3. Mention of defendant’s youth.
We may assume, without deciding, that it was misconduct to bring up defendant’s youth. However, Juror No. 1’s supposed comment that defendant “doesn’t score any points for being young” was, in essence, an admonition to the other jurors that they should not consider youth as a factor. Also, as the trial court reasoned, any jurors who did consider defendant’s youth would have been even less likely to find him guilty. Thus, there was absolutely no possibility of prejudice.
4. The newspaper article.
The trial court found that “[t]he juror who mentioned the article did not do so until after the verdict was reached.” As it reasoned, this fact rebuts any possible prejudicial effect on the other jurors. (People v. Avila, supra, 46 Cal.4th at p. 727 [“the comment was not made until the verdict was reached and the bailiff contacted”].)
The trial court also necessarily (though implicitly) found that Juror No. 12 had not mentioned the article in the context of the possible punishment, and that Juror No. 3 was mistaken on this point. This finding is supported by substantial evidence.
The trial court further concluded that the juror who mentioned the article was not herself improperly influenced. It reasoned that she did not say that she had read it, only that her husband had mentioned it to her; it had simply summarized the parties’ opening statements; and the juror’s point had been that “[you] should not believe what you read in the papers....” We agree, and we adopt this reasoning.
VII
THE EFFECT OF AN ACQUITTAL OF CASTILLO
Defendant contends that, if, on retrial, Castillo is found not guilty of murder, his own conviction for murder must be reversed.
This contention is almost, although not quite, moot. We take judicial notice that, while this appeal was pending, Castillo was retried and was found guilty of murder. At least in theory, however, Castillo’s conviction could still be reversed on appeal or vacated by a federal court. Accordingly, we address this contention on the merits.
Defendant relies on People v. Caesar (2008) 167 Cal.App.4th 1050, which held that an aider and abettor could not be found guilty under the natural and probable consequences doctrine of a greater offense than the perpetrator. (Id. at pp. 1056-1058.)
In People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, however, the Supreme Court disapproved Caesar on this very point. (Sparks, at p. 18.) It held that “[o]ccasional inconsistent jury verdicts are inevitable in our criminal justice system. If a verdict regarding one participant in alleged criminal conduct is inconsistent with other verdicts, all of the verdicts may stand. [Citations.] Accordingly, a verdict regarding one defendant has no effect on the trial of a different defendant.” (Id. at p. 5.) Here, even if Castillo were to be acquitted, defendant would still stand guilty of first degree murder.
VIII
COURT FACILITIES ASSESSMENTS
Defendant contends that the trial court erred by imposing $90 in court facilities assessments under Government Code section 70373.
The People concede that this was error, because Government Code section 70373 did not go into effect until after defendant had already been convicted (albeit before he was sentenced). (Stats. 2008, ch. 311, § 6.5.) Rather than analyze the issue independently, we accept their concession. Accordingly, we will strike these assessments.
IX
PRESENTENCE CONDUCT CREDITS
The People contend that the trial court erred by awarding defendant 47 days of presentence conduct credit under Penal Code section 4019. Defendant, somewhat unhelpfully, does not respond to this contention.
The People did not file a notice of appeal. However, “[w]here a sentence is unauthorized, the People are permitted to challenge it either by way of their own appeal [citation], or on a defendant’s appeal. This is so because such a sentence is subject to judicial correction whenever the error comes to the attention of the trial court or a reviewing court. [Citations.]” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)
As the People note, a person convicted of murder is not entitled to any presentence conduct credit. (Pen. Code, § 2933.2, subds. (a), (c); People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) Accordingly, we will strike the presentence conduct credit.
X
DISPOSITION
The court facilities assessments totaling $90 are stricken. (See part VIII, ante.) The 47 days of presentence conduct credit are stricken. (See part IX, ante.) The judgment as thus modified is affirmed.
We concur: RAMIREZ P.J.KING J.