Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Riverside County No. RIF131624 Michele D. Levine, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Richard James Dugan, Jonathan Richard Morgan, and Travis Daniel Westly of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found true a gang benefit enhancement allegation. (§ 186.22, subd. (b).) The trial court denied probation and sentenced each defendant to an indeterminate term of 15 years to life in prison for the murder conviction. The trial court struck the sentence for the gang benefit enhancement allegation and instead ordered each defendant to serve a minimum of 15 years in prison before being paroled. (§ 186.22, subd. (b)(e).)
Further statutory references are to the Penal Code unless otherwise stated.
All three defendants appeal, raising various claims of insufficiency of the evidence and instructional error. Dugan also contends the trial court abused its discretion by denying him probation. Each defendant has joined in the arguments of the others that inure to his benefit.
We conclude the contentions raised on appeal either lack merit or the claimed errors are harmless beyond a reasonable doubt. We, therefore, affirm the judgments.
BACKGROUND
Prosecution Evidence
Prior Acts and Gang Predicate Offenses
The trial court instructed the jury it could consider this evidence in determining whether the People proved the elements of the gang benefit enhancement allegation. The trial court also instructed the jury it could consider this evidence in determining the mental state of defendants Westly and Morgan on the day of Sean Gardhouse's attack, including their intent and whether they were subjectively aware of the consequences of their conduct. However, the trial court instructed the jury it could not consider this evidence for purposes of proving Westly and Morgan have a propensity to be violent or possess a character trait for violence, and it could not consider this evidence against defendant Dugan at all.
In June 2004 Morgan, Westly, Victor Sanchez, Jimmy Gulley, and three to four others assaulted some men (2004 incident). During the assault, Sanchez repeatedly hit one man with brass knuckles, breaking his jaw and knocking him down. Sanchez then got on top of the man and the two wrestled. When the man rolled over on top of Sanchez, Westly started punching and kicking the man. At some point in the tussle, the man's shoulder became dislocated. Westly also hit a second man with a hockey stick, landing blows to the man's face and elbow before the hockey stick broke. Morgan and Gulley attacked a third man. One of them hit the man in the back of the head with a bat, which caused a wound requiring staples to close. Prior to attacking the third man, Morgan said "Watch this, motherf-----." After the assault someone yelled, "El Cerrito, motherf------."
Westly admitted being involved in the fight and using a hockey stick. He denied intending in advance to become involved in a fight or hitting anyone in the head with a hockey stick. He also denied providing any assistance to Sanchez during the fight.
In January 2005 three men attacked Stephen Dyroff, a heavy metal musician, while he was packing up after a show (2005 incident). They hit him multiple times in the head. Dyroff's band mate also saw Dyroff being punched and kicked while Dyroff was on the ground. After the attack, the three men got into a car and drove off. The band mate identified Westly, whom Dyroff knew to be a Friends Stand United (FSU) member, as the driver of the car. Dyroff suffered a black eye, a swollen lip, and a wound in the back of his head requiring staples to close.
In July 2006 Dyroff told a police detective he did not want to prosecute his attackers because he had received four threatening phone calls. One of the phone calls was from Dre, Westly's best friend and an FSU member whom Dyroff also knew.
Attack on Gardhouse
In June 2006 Steven Forsythe, Sanchez, and Morgan drove in Forsythe's truck to a fast-food restaurant to get some food, hang out with friends, and possibly talk to some girls. When they arrived at the restaurant, there were approximately 20 people standing outside in the parking lot, including Gardhouse and Robert Lucero. Most of the people were members of a group known as Southern California Riders or SoCal Riders (SCR). Gardhouse and Lucero were talking to the SCR group members.
As Forsythe, Sanchez, and Morgan were walking into the restaurant, the SCR group approached them and started shaking their hands. When Morgan refused to shake hands with a short Hispanic man in the group, the man became angry. After Forsythe, Sanchez, and Morgan went inside the restaurant, the man stood outside the restaurant with the SCR group. He yelled and swore at the three men, banged on the window, and challenged them to come outside and fight.
Forsythe, Sanchez, and Morgan were scared because they were outnumbered. As Forsythe ordered food, Sanchez and Morgan used their cell phones to call for backup. Sanchez called Westly. The three men then waited inside the restaurant for their backup to arrive.
Meanwhile, the SCR group left. Gardhouse and Lucero left as well. Approximately five minutes later, Westly, Gulley, and several other men arrived at the restaurant and went inside. Not long afterwards, Dugan and another group of approximately 10 men also arrived at the restaurant and parked by Westly and his group. Dugan went inside the restaurant and briefly chatted with Westly. He then went outside and stayed with his group in the parking lot.
Westly sat down with Forsythe, Sanchez, and Morgan. Sanchez told Westly about their encounter with the short Hispanic man and their concern for their safety. Westly and Gulley then left the restaurant and stood outside the building, away from the parking lot, talking. Forsythe, Sanchez, and Morgan left a short time later and went out to the parking lot.
By then, Gardhouse and Lucero had returned to the parking lot to meet Gardhouse's girlfriend. Forsythe, Sanchez, Morgan, and as many as 15 to 20 others, including Dugan, approached Gardhouse to talk to him about the incident with the short Hispanic man. Forsythe, Sanchez, and Morgan greeted Gardhouse and shook his hand. Gardhouse stood in front of his truck with his back toward it. Forsythe, Sanchez, Morgan and the men with them stood in a semicircle around Gardhouse.
Someone in the group aggressively asked Gardhouse, "Do you have problems with the El Cerrito Boys?" Gardhouse responded, "No I don't." Sanchez asked in a short, angry tone why Gardhouse had been with the SCR group earlier. Gardhouse responded that he was not with SCR and "[did] not roll with that crew." Sanchez then asked Gardhouse if he knew the Hispanic man. He also asked Gardhouse where the man was. Gardhouse said he knew him, but not well and did not know anything about the earlier incident. Sanchez remarked, "I hope you're not lying to me, " or, "Don't lie to me."
At this point, someone in the group yelled, "El Cerrito" and another person yelled, "Just hit him." A few seconds later, Dugan emerged from the group and stepped in front of Sanchez. He said "EC Boys, send this message to SCR" and punched Gardhouse in the face. The punch bloodied Gardhouse's mouth and caused him to fall backward onto the hood of his truck.
Gardhouse pulled himself up and held his face. He looked dazed and scared. Sanchez told him to "wipe the blood off [his] mouth and get back over here and talk to me." Gardhouse said he did not want any trouble and was not going to fight. He turned and started walking toward the passenger side door of the truck just as Lucero, who had been sitting in the passenger seat, was getting out to help him. Approximately four or five men in Sanchez's group, including Dugan and Morgan, rushed Gardhouse and Lucero. Lucero put his hands up and said, "Whoa, what are you doing." Morgan approached Lucero and hit him in the head. Lucero backed up, but Morgan continued toward him and hit him in the head a second time.
At the same time, someone said "hit him" and "f--- him up" as another person hit Gardhouse again two or three times. Gardhouse turned, stumbled, and headed quickly toward the front door of the restaurant still holding his face. When Gardhouse reached the front of the restaurant, his mouth was bleeding and he looked scared. He asked to be let inside the restaurant and he tried to open the doors, but could not get inside because the restaurant employees held the doors closed.
While people chanted "El Cerrito" and "hit him, " Westly approached Gardhouse from behind and asked him, "What's going on?" Before Gardhouse responded, Westly grabbed him and pushed him into the door. Blood from Gardhouse's face spattered on the door. Westly pulled Gardhouse back forcefully and struck him two to four times in the face with "extremely vicious" blows. Gardhouse's eyes rolled to the back of his head as Westly either threw him to the ground or he fell backward. Gardhouse did not attempt to catch himself and his head hit the ground with a loud thud. Forsythe could tell Gardhouse was seriously injured from the sound of Gardhouse's head hitting the ground.
While Westly attacked Gardhouse, Morgan stood in front of Lucero in "fight mode." After Gardhouse hit the ground, Westly, Sanchez, Forsythe, Dugan, and the others with them fled.
A short time later, a police officer arrived at the restaurant and found Gardhouse lying on the ground near the restaurant door with his head in a large pool of blood. His eyes were rolled back and he was convulsing. Gardhouse never regained consciousness and died several days later.
The forensic pathologist who performed Gardhouse's autopsy testified Gardhouse had a laceration approximately one-quarter inch deep on the bridge of his nose, an abrasion on the back of his head, one on the side of his chin, and another on his elbow. He also had multiple brain contusions, primarily in the front, and a skull fracture over his left ear. The skull fracture could have been caused by a single blow to his head or by a fall on the left side of his head. It also could have caused him to lose consciousness. He died from blunt force craniocerebral trauma. The injury was contrecoup, meaning the front part of his brain was injured from rebounding into the front of his skull from the impact to the back of his head.
Gang Evidence
El Cerrito Boys
A gang expert opined El Cerrito Boys (ECB) met the statutory criteria for classification as a criminal street gang. The gang had a reputation for fighting and liked to fight, which earned it respect by instilling fear in the community. At the time of Gardhouse's attack, it had at least eight members, including Sanchez and Morgan. The gang's common symbols were the acronym ECB, which had been tagged on various surfaces in the El Cerrito area of Corona, as well as the numbers 532, which correspond to the letters ECB on a telephone keypad. The gang's primary activities were committing crimes of grand theft, assault with a deadly weapon, making criminal threats, and murder. The 2004 incident and Gardhouse's attack were qualifying predicate offenses.
The gang expert further opined Gardhouse's attack benefitted ECB because ECB received publicity from it. The gang expert explained that such publicity increases the community's fear of the gang and allows the gang to commit crimes more freely. The gang expert based his opinions on reports of crimes committed by ECB members, interviews with victims and witnesses, interviews with Sanchez, interviews with students and school resource officers at the high school ECB members attended, reports documenting tattoos and admitted members of ECB, information located on ECB members' MySpace pages, and photographs obtained with search warrants.
Friends Stand United
The gang expert also opined FSU met the statutory criteria for classification as a criminal street gang. The gang originated on the east coast and has chapters throughout the country, including one in Los Angeles. Its common symbols include the acronym FSU and the numbers 378, which correspond to the letters FSU on the telephone keypad. The numbers 666 are also significant to FSU. The numbers correspond to the letters FFF on the telephone keypad, which is an acronym for one of FSU's mottos, "Friends, Family, Forever." Members share a common interest in punk rock and hard core music. Membership in the gang is by invitation only. Members in the gang earn respect and elevate themselves within the gang by developing a reputation for violence. The more violent a member's actions, the more respect the member earns. In 2006 the gang had multiple members, including Westly, Dugan, Gulley, and Dre. The primary activity of FSU was committing assaults likely to cause great bodily injury. The 2004 incident, the 2005 incident, and Gardhouse's attack were qualifying predicate offenses. Even though FSU's name was not called out during Gardhouse's attack, the attack benefited FSU because two known FSU members, Westly and Dugan, participated in it, which furthers the group's reputation for violence and allows it to commit crimes more freely. The gang expert based his opinions on crime reports, intelligence reports, and discussions with law enforcement officers in other jurisdictions; interviews with an FSU founder and FSU members, including Gulley; information on FSU members' MySpace pages; a documentary, magazine articles, and newspaper reports; Urban Dictionary and Wikipedia entries; and photographs and items obtained with search warrants.
Gulley was once an ECB member and later became an FSU member.
The gang expert further opined members of ECB and FSU work together to accomplish their primary activities as demonstrated by the 2004 incident, the attack on Gardhouse, and photographs of ECB members with FSU members. In addition, the gang expert opined Gardhouse's attack was done in association with members of ECB and FSU in that it started with an incident in which ECB members were outnumbered, FSU members came to assist them, and members from both gangs participated in the assault.
A computer forensics detective analyzed Westly's laptop. On his MySpace page, Westly referred to himself both by his given name and as "OG Bobby Johnson." He also indicated he was associated with FSU. A blog entry authored by Westly in January 2005 and labeled "1-800-DonnyBrook, " read: "Thank you for calling the 1-800-DonnyBrook hotline. It is our goal to offer the most ridiculous beatdowns to you and all of your loved ones for the lowest amount of 's--- talking.' Some callers might qualify for a gang beatdown for merely flashing a glance if your credit is right. To better injure you, please choose from one of the following touchtone options."
According to Westly, "OG Bobby Johnson" is the name of the main character in a movie about a Black gang in south central Los Angeles.
The options were, "Press 1 for Zack after two bottles of Mad Dog 20/20. Picture Adam, but six times the size. [¶] Press 2 to participate in a real-life situation of Travis sending you to the ER. Whoops. [¶] Press 3 for Dre at any show to skate street. You might want to call a few of your friends for this option. [¶] Press 4 for Alan. This option is open 24 hours a day. No reason needed. Just stay on the line, and he'll be right over. [¶] Press 5 for Ralph, the human hulk. He may suck at Madden, but I've seen him rip streetlights out of the ground with his bare hands. [¶] Press 6 for Martin. Don't get confused, callers. I'm talking about the Martin that will throw you off a cliff, not the Martin you swapped records with at the last show. Just add alcohol. [¶] Press 7 for Qwiz. That pretty much sums that up. [¶] Press 8 for Justin. This option can be deceiving, because you think you might have a shot, but you forgot about all of the... above options. [¶] Press 9 for a real-life situation in which you get to play the thief and try to run out of the show and sell merch on the street... and you get to go head to head against all of the Doom Family Thugs, crunk. (Hint: Watch out for skateboards and bikes). [¶] Also, to our first time callers, if any alcohol is misplaced or spilled in the rumble, you will be held responsible for our next bar tab. We appreciate your call. May God have mercy on your soul."
According to Westly, this message was written by an acquaintance. Westly thought it was funny, so he copied it and pasted it onto a MySpace bulletin.
A message created by Westly in May 2006 read: "Me and DJ got into a fight, because he wanted to get into a fight with me. And yes, it was one on one. Maybe things went a little too far, and I'm sorry I won, but if I lost, you wouldn't see me or my friends on here crying about it[.] (Me and DJ have no problems to this day. He was never told not to call the cops. We just both realized it was both our faults[.]) Well, I'll just say, I will do anything for my friends. Will you? Travis, FSU Gang."
Dyroff's nickname is D.J. Westly testified the message referred to a different incident with a different person. Westly acknowledged seeing the assault on Dyroff and driving off with three other men afterwards, but he denied any involvement in the assault.
The trial court instructed the jury the MySpace page evidence could only be considered against Westly and not against Morgan and Dugan.
Police detectives found boxes of shirts with "FSU" on them in a spare bedroom in the house Westly and Dugan shared. They also found FSU-related shirts in the other rooms and in Westly's car. The shirts included such messages as "Knuckle up, " "Friends Don't Let Friends Fight Alone, " "Fistfight Support Unit, " and "FSU Gang."
Only FSU members or friends wear FSU shirts. Numerous pictures admitted at trial showed Westly and Dugan wearing FSU shirts surrounded by other men wearing FSU-related items. The photographs also show ECB members Morgan and Sanchez hanging out with FSU members, including Westly and Dugan.
Defense Evidence
Westly
Westly has known Dugan and Morgan for years. At the time of Gardhouse's attack, Westly and Dugan were roommates. Dugan was an FSU member and had an FSU shirt. Morgan was not an FSU member, had never worn an FSU shirt, and only a few FSU members knew him.
Westly learned about FSU in late 2004. He became affiliated with the Los Angeles branch of the group around the same time. The group started a record label and the group's primary activities were promoting the record label, bands, and concerts. The group made and sold shirts identifying themselves as group members. They put different logos and sayings on the shirts to maximize sales because "image definitely sells in the hard core [music] scene, " with which the group was affiliated. Westly admitted the slogans on the shirt were "pretty aggressive, " which is the image FSU seeks to portray. However, he denied living the image. He said the FSU shirts police detectives found in his apartment were made to raise money for the family of a group member who died.
Westly and Gulley had a security company that provided security services for concerts and were trying to increase its business. Their employees wore shirts with the words "FSU Security" or "378 Security" on them.
Westly and a friend planned to meet Gulley and others at the restaurant. Westly's friend and Gulley were also FSU members. As Westly and his friend were on the way to the restaurant, Westly received a call asking him where he was and to hurry up; however, no one mentioned a fight and Westly denied going to the restaurant looking for a fight. When Westly and his friend arrived at the restaurant, Gulley and two of Gulley's friends were already there. Dre, Dugan and a few other men came in after Westly. Westly saw Forsythe, Sanchez, and Morgan sitting at a table. Westly went over to talk with them and they told him what happened earlier. Westly briefly spoke with Dugan, then Dugan left to meet someone.
Westly, Gulley and one of Gulley's friends went out a side entrance of the restaurant and stood on the sidewalk discussing the security company and some potential employees. Gulley's other friend subsequently joined them. Forsythe, Sanchez, and Morgan left the restaurant after Westly and headed to the parking lot.
While Westly was chatting with Gulley and Gulley's friend, Westly heard screaming and yelling coming from the parking lot, but denied hearing anyone say "El Cerrito" or "hit him." He walked quickly to the front of the restaurant and noticed two men squaring off against each other in the parking lot, but could not see who they were. As he approached the front of the restaurant, he saw Gardhouse trying to open the doors of the restaurant.
Westly "had a feeling" his friends were involved in the commotion and felt obliged to find out what was happening, so he asked Gardhouse, whom he had never previously met, what was going on. Gardhouse turned, took a step toward Westly, and said, "[Sanchez is] tripping" or something similar. Westly noticed blood on Gardhouse's mouth. Because of that and the commotion in the parking lot, Westly thought the SCR group had returned, his friends were in trouble, and Gardhouse was involved in a fight with them. He panicked, went into "defensive mode, " and struck Gardhouse in the face two or three times preemptively.
At the time, Westly was regularly lifting weights. He had also taken steroids in the past, but had not used them for approximately seven weeks. He admitted Gardhouse did nothing to provoke the assault, but insisted he did not intend to kill or seriously injure Gardhouse.
After Westly hit Gardhouse, Gardhouse fell toward Westly. Westly sidestepped Gardhouse and Gardhouse fell to the ground. Although Westly's hand might have touched Gardhouse as Gardhouse was falling, Westly did not push Gardhouse or throw him to the ground. Rather, he stepped back to see what was going on around him and whether anyone was running up behind him. When a girl yelled, "Call the police" and rushed toward Gardhouse, Westly ran to his car and drove away.
Westly admitted in 2000 he struck the driver of a car in the drive-thru lane of the same restaurant after a friend of his started a fight with the car's occupants. In addition, he admitted in August 2004 he and a group of 30 to 35 others beat up a kid at a concert because the kid stole some merchandise. He also admitted in August 2005 he and a friend each punched a musician after the musician wrote and played a song calling FSU Nazis. The musician landed on a car after the first punch and fell to the ground after the second punch.
The trial court instructed the jury it could only consider this prior act evidence in evaluating Westly's credibility.
Westly, Morgan, and Dugan
The parties stipulated that, prior to Gardhouse's assault, Dugan did not call Sanchez, Morgan, Westly, Gulley or any other person named in the trial. They also did not call him.
In addition, the parties stipulated Lucero told a police detective that after Dugan struck Gardhouse, Lucero got out of Gardhouse's truck. As he was doing so, Morgan struck him in the jaw. Lucero subsequently punched Morgan an unknown number of times in self-defense.
The parties further stipulated Sanchez called Lucero within days of the attack on Gardhouse and apologized for his role in it.
The People also charged Sanchez with Gardhouse's murder, but the trial court dismissed the charges against Sanchez at the preliminary hearing due to insufficient evidence.
DISCUSSION
I
Sufficiency of Evidence Claims
A
Sufficiency of Evidence Westly Acted With Implied Malice
The jury convicted Westly of second degree murder under an implied malice theory. This theory required the People to prove: (1) Westly committed an intentional act; (2) the natural consequences of the act were dangerous to human life; (3) Westly knew the act was dangerous; and (4) Westly deliberately committed the act with conscious disregard for human life. (§ 188; People v. Bacon (2010) 50 Cal.4th 1082, 1116; People v. Martinez (2003) 31 Cal.4th 673, 684.) "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (People v. Knoller (2007) 41 Cal.4th 139, 143.) Westly contends we must reverse his conviction because there is insufficient evidence to establish the second through fourth elements of this theory.
"The law governing sufficiency-of-the-evidence challenges is well established and applies both to convictions and special circumstance findings. [Citations.] In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
A death caused by blows from hands and feet may be murder if the blows are accompanied by aggravating circumstances implying malice. (People v. Munn (1884) 65 Cal. 211, 212-213; People v. Spring (1984) 153 Cal.App.3d 1199, 1205; People v. Zankich (1961) 189 Cal.App.2d 54, 67; People v. Teixeira (1955) 136 Cal.App.2d 136, 150; People v. Cayer (1951) 102 Cal.App.2d 643, 648-649.) Among the circumstances courts have found relevant to determining whether malice is inferable in a particular case are the age and vulnerability of the victim, the number and size of the assailants, the ferocity and duration of the attack, the provocation for the attack, and the unusualness or unexpectedness of the victim's death. (See, e.g., People v. Tubby (1949) 34 Cal.2d 72, 74-75, 79 [sufficient evidence to support second degree murder conviction where defendant, without provocation, struck a frail, 82-year old man three or four times with his fists resulting in the man's death from basal skull fractures and intercranial hemorrhage]; People v. Munn, supra, at pp. 211-212, 214 [malice not present where the defendant struck a grown boy two or three times with his fist and the blows did not produce an immediate serious effect, but later caused death]; People v. Spring, supra, at pp. 1205-1206 [insufficient evidence to support second degree murder conviction where the defendant, with some provocation, struck a 64-year old man once, the blow only caused a small abrasion and did not knock the man down, the man became comatose one week later, and died 17 days later from a subdural hematoma]; People v. Beyea (1974) 38 Cal.App.3d 176, 189-190 [sufficient evidence to support second degree murder conviction where the two defendants beat and kicked the victim for 15 to 20 minutes after the victim refused to shake hands with one of the defendants, and the victim's resulting death from a ruptured spleen was foreseeably caused by the beating]; People v. Breland (1966) 243 Cal.App.2d 644, 647-649, 653 [sufficient evidence to support second degree murder conviction where the defendant, without "considerable provocation, " repeatedly hit and kicked a helpless victim in the head, chest, and stomach and the victim died three weeks later from a perforated bowel and related infection caused from blunt force abdominal trauma]; People v. Mears (1956) 142 Cal.App.2d 198, 199-203 [sufficient evidence to support second degree murder conviction where the defendant repeatedly hit and kicked a helpless victim without provocation, knocking him out and causing blood to pool in his lungs, asphyxiating him]; People v. Cayer, supra, at pp. 645-647, 649-650 [sufficient evidence to support second degree murder conviction where the defendant repeatedly hit and kicked a 58-year old man he mistakenly thought had reported him drunk at work and the man subsequently died from a trauma-induced heart attack]; People v. Alexander (1923) 62 Cal.App. 306, 307-309 [sufficient evidence to support second degree murder conviction where the defendant mistook a young, frail man for being a gang member and struck him in the face, knocking him down and causing him to hit his head on the sidewalk, resulting in death from a basal skull fracture].)
Here, the evidence shows Gardhouse did nothing to provoke Westly's attack. Although the attack was brief, a witness described Westly's blows as "extremely vicious." This description is consistent with medical evidence and witness accounts indicating one of the blows fractured Gardhouse's skull and caused him to lose consciousness.
In addition, at the time of the attack, Gardhouse was vulnerable. He had just been confronted by an angry group, hit once by Dugan, rushed by Dugan and others, and hit once or twice more by another person. He was scared, injured, bleeding, dazed and urgently seeking safety from an inflamed crowd chanting, "hit him, hit him." Westly admittedly saw Gardhouse bleeding and attempting to reach safety, and he inferably heard the crowd chanting. He capitalized on Gardhouse's vulnerability by first taking him off guard with an innocuous question and then punching him hard and fast two to four times until he lost consciousness. Westly then either threw Gardhouse to the ground or he deliberately stepped aside and allowed Gardhouse to fall back onto the ground unimpeded. Regardless of which occurred, it is neither unusual nor unexpected for a person to suffer a fatal head injury from such an impact. (See, e.g., People v. Alexander, supra, 62 Cal.App. at pp. 307-309.) To the contrary, as evidenced by the proliferation of helmet safety laws, it is common knowledge a significant blow to the head can cause serious injury or death. (See, e.g., Veh. Code, §§ 21212, subd. (a); Historical and Statutory Notes, 66B West's Ann. Veh. Code (2011 Supp.) foll. § 21212, p. 6 ["This bill provides important safety protections to children and teenagers from serious injury or death due to head injuries"], § 27803, subd. (a).)
Moreover, although the parties have not cited and we have not located a case discussing the presence of an encouraging crowd as a relevant aggravating circumstance, we believe it was one in this case. Westly actively cultivated a reputation as a fierce, loyal, and enthusiastic fighter. He knew the crowd chanting for him to hit Gardhouse included his closest friends and acquaintances. He also inferably knew if he did not hit Gardhouse and knock him out, he would disappoint the crowd and risk losing his reputation. His motivation to provide a spectacle for the crowd at Gardhouse's expense belies any notion his encounter with Gardhouse was a simple bout of fisticuffs with an unfortunate ending. Rather, it was a performance intended to please his audience and reinforce his reputation. As such, it, along with the other circumstances discussed above, amply supports the jury's implied malice finding. In view of our conclusion, we need not address Westly's contention we should reduce his conviction to involuntary manslaughter.
B
Sufficiency of Evidence Murder Was a Reasonably Foreseeable Consequence of a Crime Dugan and Morgan Aided and Abetted
Dugan and Morgan contend there is insufficient evidence to support their second degree murder convictions under the theory they aided and abetted a crime (assault, battery, or assault likely to produce great bodily injury) the natural and probable consequences of which was murder. More particularly, they contend we must reverse their convictions because there is insufficient evidence Gardhouse's murder was a reasonably foreseeable consequence of their actions. In reviewing this contention, we apply the same substantial evidence test described in part I.A., ante.
"The natural and probable consequences doctrine is based on the recognition that those who aid and abet should be responsible for the harm they have naturally, probably, and foreseeably put in motion." (People v. Avila (2006) 38 Cal.4th 491, 567.) Under the doctrine, " '[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation.] 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.' " (People v. Medina (2009) 46 Cal.4th 913, 920.) " '[T]o be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough...." ' " (Ibid.)
A common application of the natural and probable consequences doctrine involves "situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim. In those instances, [courts have] generally had no difficulty in upholding a murder conviction, reasoning that the jury could reasonably conclude that the killing of the victim... was a 'natural and probable consequence' of the assault that the defendant aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 262.) We, likewise, have no difficulty upholding Dugan and Morgan's murder convictions in this case.
The evidence viewed most favorably to the prosecution shows Morgan and Dugan participated in a hostile group confrontation of Gardhouse because they erroneously believed Gardhouse was connected to SCR and the earlier incident between an SCR member and Forsythe, Morgan, and Sanchez. Gardhouse assured the hostile group he was not connected to SCR. Nonetheless, Dugan decided to send a message to SCR by striking Gardhouse in the face without warning. The impact dazed Gardhouse and caused his mouth to bleed. Although Gardhouse indicated he was not going to fight and attempted to retreat, Dugan, Morgan and others rushed him. When Lucero saw the attack on Gardhouse and attempted to aid him, Morgan struck Lucero and blocked him from doing so. Meanwhile, another person in the hostile group hit Gardhouse again. Gardhouse then headed to the restaurant seeking safety as the crowd in the parking lot chanted "hit him, hit him."
While neither Dugan nor Morgan pursued Gardhouse to the restaurant, the presence of the encouraging crowd and other sympathetic, willing assailants made the continuing attack on and subsequent murder of Gardhouse reasonably possible and, therefore, reasonably foreseeable. (See People v. Medina, supra, 46 Cal.4th at p. 926, citing People v. Montano (1979) 96 Cal.App.3d 221, 226, superseded by statute on another ground as recognized in People v Gibbs (1983) 145 Cal.App.3d 794, 797[frequency with which gang attacks result in homicide justifies a finding a homicide is a natural and probable consequence of a gang attack].) Moreover, contrary to Dugan and Morgan's assertions, their culpability does not depend on the foreseeability of the precise circumstances of Gardhouse's murder. It is sufficient that the murder itself was foreseeable. (People v. Medina, supra, at p. 927.) In view of our conclusion, we need not address Dugan's alternate contention that there is insufficient evidence to support his second degree murder conviction under a straight aiding and abetting theory.
C
Sufficiency of Evidence to Support the Gang Benefit Enhancement
Westly contends there is insufficient evidence to support the true finding on the gang benefit enhancement allegation. More particularly, he contends there is insufficient evidence to support a finding ECB is a criminal street gang. He also contends there is insufficient evidence to support a finding he acted to benefit FSU. Morgan and Dugan join in these contentions. In reviewing these contentions, we apply the same substantial evidence test described in part I.A., ante.
1
Sufficiency of the Evidence ECB is a Criminal Street Gang
To establish a group is a criminal street gang, 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 group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320.)
Westly disputes only the sufficiency of the evidence to support the second, or primary activities, element. " '[P]rimary activities, ' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations." (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) A gang expert's testimony founded on conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from law enforcement colleagues can be sufficient to prove a gang's primary activities. (Id. at p. 324; People v. Gardeley (1996) 14 Cal.4th 605, 620; People v. Williams (2009) 170 Cal.App.4th 587, 621-622.)
In this case, the gang expert testified ECB's primary activities were grand theft, assaults with deadly weapons, making terrorists threats, and murder. These activities are among the enumerated crimes whose commission might qualify a group for classification as a criminal street gang. (§ 186.22, subds. (e), (f).) The gang expert based his opinion on crime reports, conversations with law enforcement colleagues, interviews with students and school resource officers at the high school ECB members attended, interviews with ECB members, information gleaned from ECB members' MySpace pages, and prior criminal acts committed by ECB members, including the 2004 incident and Gardhouse's attack. Contrary to Westly's assertion, these sources of information provided an adequate factual foundation for the gang expert's opinion. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Accordingly, we conclude there is sufficient evidence to support the jury's finding ECB is a criminal street gang.
2
Sufficiency of Evidence Westly Acted to Benefit FSU
To establish the truth of a criminal street gang enhancement allegation under section 186.22, subdivision (b)(1), "the prosecution must prove that the crime for which the defendant was convicted had been 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Gardeley, supra, 14 Cal.4th at pp. 616–617; accord, People v. Williams, supra, 170 Cal.App.4th at p. 625.) Westly contends there is insufficient evidence to show he acted for the benefit of, at the direction of, or in association with FSU. He also contends there is insufficient evidence he acted with the specific intent to promote, further, or assist in criminal conduct by gang members. In reviewing these contentions, we apply the same substantial evidence test described in part I.A., ante.
As with other aspects of a gang enhancement allegation, the prosecutor may meet its burden of proving the gang-benefit aspect by presenting testimony from a gang expert. (People v. Gonzalez (2006) 38 Cal.4th 932, 944; People v. Gardeley, supra, 14 Cal.4th at pp. 617–620; People v. Williams, supra, 170 Cal.App.4th at p. 621.) In this case, the gang expert testified FSU benefited from Westly's attack on Gardhouse because the attack enhanced FSU's reputation for violence. An expert's opinion that particular criminal conduct benefited a gang by enhancing its reputation can be sufficient to establish the defendant committed the conduct for the benefit of the gang. (People v. Albillar (2010) 51 Cal.4th 47, 63) Nonetheless, the gang expert's testimony was supported by Westly's appearance at the restaurant after Sanchez called for assistance, which is consistent with FSU's reputation for supplying group support for a fight. Although there is no evidence anyone involved in the crime mentioned FSU during its commission, the crime was committed at a location where people familiar with Westly and his affiliation with FSU commonly congregate and were, in fact, present. Moreover, Westly committed the crime in a manner that fostered both his and FSU's reputations. As Westly had business interests tied to his FSU affiliation, maintaining his reputation and FSU's reputation was inferably necessary for his livelihood. Accordingly, the jury could have reasonably found from this evidence that Westly murdered Gardhouse for the benefit of FSU and with the specific intent to promote criminal conduct by FSU members.
II
Instructional Error Claims
A
Incorrect Language in Instruction on Natural and Probable Consequences Doctrine
1
The trial court instructed the jury on natural and probable consequences doctrine using CALCRIM No. 403. Before giving this instruction, the trial court must tailor it in various places by inserting, as appropriate, either the target offenses (in this case assault with force likely to cause great bodily injury, simple battery, or simple assault), or the nontarget offenses (in this case second degree murder or involuntary manslaughter). In one place in the instruction, the trial court mistakenly inserted the target offenses when it should have inserted the nontarget offenses.
Thus, the trial court instructed the jury: "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault was committed for a reason independent of the common plan to commit the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault, then the commission of second degree murder or involuntary manslaughter was not a natural and probable consequence of assault with force likely to cause great bodily injury and/or simple battery and/or simple assault." (Italics added.)
Instead, the trial court should have instructed the jury: "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the second degree murder or involuntary manslaughter was committed for a reason independent of the common plan to commit the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault, then the commission of the second degree murder or involuntary manslaughter was not a natural and probable consequence of assault with force likely to cause great bodily injury and/or simple battery and/or simple assault." (Italics added.)
Although the parties had a lengthy discussion about the instruction with the trial court and heard the trial court read the instruction to the jury, no one alerted the trial court to the mistake. On appeal, Morgan contends the mistake requires reversal of his conviction because it made the instruction nonsensical and prejudicially confused the jury. Dugan joins in this contention. We conclude reversal is not warranted under the circumstances.
The incorrect portion of the instruction did not address any of the fundamental aspects of the natural and probable consequences doctrine. Other portions of the instruction properly addressed these aspects. The incorrect portion of the instruction simply described one situation in which the doctrine does not apply: when the perpetrator commits the nontarget offense, in this case second degree murder, for independent reasons. Here, there is no evidence Westly had an independent reason for hitting Gardhouse. Westly admitted and the undisputed evidence shows Westly did not know Gardhouse before the incident and Gardhouse did nothing to provoke Westly. Instead, the evidence shows Westly hit Gardhouse solely in response to the events originating in the parking lot, which Westly correctly believed involved his friends and were related to the earlier incident with SCR. Accordingly, we conclude beyond a reasonable doubt the error did not contribute to the jury's verdict. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Lamas (2007) 42 Cal.4th 516, 526.)
In full, the trial court instructed the jury on the natural and probable consequences doctrine as follows: "Before you may decide whether the defendant is guilty of second degree murder or involuntary manslaughter as an aider and abettor, you must decide whether he is guilty of assault with force likely to cause great bodily injury and/or simple battery and/or simple assault.
Our conclusion is not altered by the note the jury sent to the trial court during deliberations asking, "If we agree that Dugan and/or Morgan aided and abetted a simple assault, but the end result was determined to be murder 2 or involuntary manslaughter are Dugan and Morgan automatically guilty of the higher crime (murder)?" The jury's question does not suggest the jury grappled with whether Westly hit Gardhouse for independent reasons. It suggests the jury grappled with whether it must necessarily convict an aider and abettor of the same crime as the perpetrator—a scenario not directly addressed by the jury instructions. The trial court correctly informed the jury it could convict Dugan and Morgan of the same crime or the lesser crimes of involuntary manslaughter and simple battery. (People v. Wood (1992) 8 Cal.App.4th 1570, 1585-1588; accord People v. Hart (2009) 176 Cal.App.4th 662, 670-671.) Although the court also referred the jury to the instruction on the natural and probable consequences doctrine for further guidance, the instruction was correct in all respects except for the sentence explaining that a nontarget offense committed for independent reasons is not a natural and probable consequence of a target offense. As the incorrect portion of the instruction had no general application in this case, much less a specific application to the jury's question, we conclude there is no reasonable possibility the jury misapplied the incorrect portion of the instruction in a constitutionally impermissible manner.
B
Failure to Sua Sponte to Instruct the Jury with CALCRIM Nos. 240 and 620
Dugan contends the trial court deprived him of his constitutional right to due process and a fair trial by failing to sua sponte give the jury the CALCRIM No. 240 and No. 620 instructions on causation. Morgan joins in this contention. The People assert any error was harmless because identical causation language was incorporated into the CALCRIM No. 520 instruction on murder with malice aforethought that the trial court gave the jury. Dugan concedes the CALCRIM No. 520 instruction contains the same causation language as CALCRIM No. 240 and some of the same causation language as CALCRIM No. 620. However, Dugan contends CALCRIM No. 520 omits the language from CALCRIM No. 620 instructing the jury, "If you have a reasonable doubt whether the defendant's acts caused death, you must find [the defendant] not guilty." He further contends the omission of this language precluded the jury from finding him not guilty of second degree murder even if it found he aided and abetted Westly. We conclude these contentions lack merit.
CALCRIM No. 240 in its unmodified form provides: "An act causes (injury/ ) if the (injury/ ) is the direct, natural, and probable consequence of the act and the (injury/ ) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. For circumstances where there are multiple potential causes, the instruction provides: "[There may be more than one cause of (injury/ ). An act causes (injury/ ), only if it is a substantial factor in causing the (injury/ ). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ ).]"
Specifically, the CALCRIM No. 520 instruction, as modified for this case, informed the jury: "The defendant is charged in Count 1 with murder in violation of Penal Code section 187. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought.
"We review claims of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707; People v. Cole (2004) 33 Cal.4th 1158, 1210.) " ' " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." ' " (People v. Johnson, supra, at p. 707.)
In addition to giving the jury the CALCRIM No. 520 instruction on murder with malice aforethought, the trial court gave the jury the CALCRIM No. 220 instruction on reasonable doubt. Thus, the jury knew when the trial court instructed it that the People must prove something, including that Westly's actions caused Gardhouse's death, the trial court meant the People must prove it beyond a reasonable doubt. Accordingly, it was not necessary for the trial court to include reasonable doubt language in the CALCRIM No. 520 instruction, and its exclusion did not render the trial court's failure to sua sponte give the CALCRIM No. 620 instruction erroneous.
Moreover, as discussed above, the jury specifically asked and the trial court specifically informed the jury it did not have to find Dugan and Morgan guilty of second degree murder even if it found Dugan and Morgan aided and abetted Westly's actions. Therefore, even if the court had erred by failing to sua sponte give the CALCRIM No. 620, the error did not harm Dugan or Morgan in the manner claimed.
C
Failure to Sua Sponte Instruct the Jury on Accessing Accomplice Testimony
Dugan contends Westly's testimony that Dugan had an FSU T-shirt was critical to the jury's verdict against him. Since Westly was an accomplice, Dugan contends the trial court erred by failing to sua sponte instruct the jury on how to evaluate accomplice testimony. Assuming, without deciding, the trial court erred in this respect, the error was harmless.
A conviction may not be based upon the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime. (§ 1111.) A person is an accomplice if the person is subject to prosecution for the identical crime charged against the defendant. (Ibid.) " 'If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony.' " (People v. Lewis (2001) 26 Cal.4th 334, 369; accord, People v. Carrington (2009) 47 Cal.4th 145, 191.)
Nonetheless, "[a] trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence, ' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." ' " (People v. Avila, supra, 38 Cal.4th 491, 563.)
Here, Westly's testimony about Dugan having an FSU T-shirt was amply corroborated by a photograph introduced into evidence by the prosecution showing Dugan wearing an FSU T-shirt. Accordingly, any error in failing to give an accomplice instruction was plainly harmless.
D
Cumulative Prejudicial Effect of Instructional Errors
Dugan contends the cumulative prejudicial effect of the claimed instructional errors deprived him of due process and a fair trial. Morgan joins in this contention.
After considering all of the circumstances as well as the strength of the prosecution's case, we conclude the claimed instructional errors, even viewed cumulatively, were harmless beyond a reasonable doubt and there is no reasonable possibility of a different result in their absence. (People v. Cowan (2010) 50 Cal.4th 401, 510-511.)
III
Denial of Probation
At the sentencing hearing, the trial court received and considered the probation reports, which recommended denial of probation and commitment to state prison; letters from the family and friends of Gardhouse and Dugan; statements from Westly; statements from the family and friends of Gardhouse, Westly and Morgan; and comments from the prosecutor and defense counsel. After briefly lamenting the circumstances of the case, the trial court denied probation and sentenced Westly, Morgan, and Dugan to state prison.
To spare Gardhouse's family further pain, neither Morgan nor Dugan made statements at the sentencing hearing.
In reaching its decision, the trial court indicated it considered "the following criteria set out in the Rules of Court:... [t]he seriousness of the crime, the vulnerability of [Gardhouse], the infliction of physical injury, and the participation of each defendant, the lack of provocation, justification for each of the defendant's actions, and the manner the crime was carried out." In addition, it "considered, individually, the facts relating to each defendant, the prior record or lack thereof, prior performance on probation, willingness or ability to comply with probation, the effect of imprisonment, and the remorseful—whether or not they were remorseful for their actions." It "also considered the general objectives in sentencing set out in Rule of Court, rule 4.410 and the primary considerations in granting or denying probation, including the protection of society, punishment, deterrence, crime prevention, and uniformity in sentencing."
As to Dugan, the trial court further noted that, although he had no criminal history and had expressed remorse, "he arrived at [the restaurant] as a result, in this Court's mind, of being summoned to provide backup." Moreover, the trial court noted that, although the confrontation that prompted his summoning had evaporated, he was ready to assault someone and assaulted Gardhouse without provocation.
As to Morgan, the trial court noted his expressions of remorse, but also noted his participation in the 2004 incident. With regard to Gardhouse's murder, the trial court found that, although Morgan was not the quarterback, "clearly, he was integrally involved in the violence and aided and abetted, in this Court's mind, [Westly] in the commission of the actions which resulted in [Gardhouse's] death. [¶] He removed the assistance offered by [Lucero]. He, in essence, created that block to prevent him from being able to assist his friend."
Finally, as to all of the defendants, the court observed, "The assault was, in this Court's mind, a coordinated effort between and among [FSU] and [ECB] upon [Gardhouse]. [¶] [Gardhouse] was not a gang member, did not provoke the defendants, and was at [the restaurant] enjoying an evening with his girlfriend. And instead of beginning his young adult life, his life was tragically ended, leaving in the wake of this violence countless victims that we have heard here today and that fill this courtroom."
The parties agree in "unusual cases" where the "interests of justice would be served if the person is granted probation, " the trial court may grant probation to a person convicted of second degree murder. (§ 1203, subd. (e).) Dugan contends this is such a case and, therefore, the trial court abused its discretion by denying him probation. Morgan joins in this contention. We disagree.
" 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation, ] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' " (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
Here, the trial court's remarks at the sentencing hearing establish that it considered all of the appropriate factors in determining whether to grant Dugan and Morgan probation, and that its decision to deny them probation was neither arbitrary nor capricious. While, as Dugan points out in his briefs, there were some facts that might have supported a grant of probation at least for him, we cannot conclude after considering all of the facts and circumstances discussed at length in this opinion that the trial court's decision exceeded the bounds of reason. Accordingly, Dugan and Morgan have not established the trial court abused its discretion in denying them probation.
Morgan merely joined in this contention. He did not present any arguments regarding its particular application to him.
DISPOSITION
The judgments are affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.
"To prove that the defendant is guilty of second degree murder or involuntary manslaughter, the People must prove that: [¶] 1. The defendant is guilty of assault with force likely to cause great bodily injury, or simple battery, or simple assault; [¶] 2. During the commission of assault with force likely to cause great bodily injury and/or simple battery and/or simple assault, a coparticipant in that assault with force likely to cause great bodily injury and/or simple battery and/or simple assault committed the crime of second degree murder or involuntary manslaughter; and [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the second degree murder or involuntary manslaughter was a natural and probable consequence of the commission of the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault.
"A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault was committed for a reason independent of the common plan to commit the assault with force likely to cause great bodily injury and/or simple battery and/or simple assault, then the commission of the second degree murder or involuntary manslaughter was not a natural and probable consequence of assault with force likely to cause great bodily injury and/or simple battery and/or simple assault.
"To decide whether the crime of second degree murder or involuntary manslaughter was committed, please refer to the separate instructions that I have given you on those crimes.
"The People are alleging that the defendant originally intended to aid and abet either assault with force likely to cause great bodily injury or simple battery or simple assault.
"The defendant is guilty of second degree murder or involuntary manslaughter if you decide that the defendant aided and abetted one of these crimes, and that second degree murder or involuntary manslaughter was the natural and probable result of one of these crimes. However, you do not need to agree about which of these three crimes the defendant aided and abetted."
CALCRIM No. 620 in its unmodified form provides: "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death. [¶]... [¶] If you have a reasonable doubt whether the defendant's act caused the death, you must find (him/her) not guilty."
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; AND [¶] 4. He deliberately acted with conscious disregard for human life.
"[¶]... [¶] An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes death." (Italics added.)