Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR66833.
RAYE, Acting P.J.
The “throwing” of gang signs and an exchange of verbal taunts led to an altercation between two rival gangs. In the aftermath, one gang member lay seriously wounded in a pool of blood. An information charged defendant Johnny Carlos Hernandez with attempted murder (Pen. Code, §§ 187, 664 -- count I), three counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) -- counts II, III, IV), and with actively participating in a criminal street gang (§ 186.22, subd. (a) -- count V). As to counts I, II, III, and IV, the information alleged the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of attempted voluntary manslaughter, one count of assault by means of force likely to produce great bodily injury, and of actively participating in a criminal street gang. The jury acquitted defendant of the other two counts of assault.
Sentenced to 16 years in prison, defendant appeals, contending: (1) the court failed to instruct on the crimes that qualify as primary activities of a criminal street gang, (2) insufficient evidence supports the primary activities element of participation in a gang, (3) the court improperly instructed on the natural and probable consequences doctrine, (4) the court erred in admitting a codefendant’s statement, (5) prosecutorial misconduct, (6) sentencing error, and (7) error in assessing a court security fee. We shall reverse defendant’s convictions on two counts and remand for a partial retrial.
FACTUAL AND PROCEDURAL BACKGROUND
Members of two antagonistic Hispanic gangs clashed on a summer evening, leaving one man seriously wounded. Defendant and three other alleged members of the Norteño gang, Ignacio Mendoza, Miguel Mendoza, and Juan Arteaga, were charged with various gang offenses. An information charged defendant with attempted murder (count I), three counts of assault by means of force likely to produce great bodily injury (counts II, III, IV), and with actively participating in a criminal street gang (count V). It was further alleged as to counts I, II, III, and IV that the offenses were committed “for the benefit of, at the direction of, and in association with a criminal street gang.” (§ 186.22, subd. (b)(1).) As to counts I, II, III, and IV, it was also alleged defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Finally, the information alleged defendant had previously been convicted of a “serious” and/or “violent” felony: robbery. (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
A jury trial for all four defendants followed.
Prelude to an Altercation
One summer evening in 2005, Ramon Ruelas, Rafael Castrejon, and Zeferino Valdez sat drinking together at Castrejon’s home. Ruelas admitted to having been a member of the Sureño gang but stated he had left the gang about two years before the incident. Valdez admitted membership in the Sureños and stated Ruelas and Castrejon were also members of that gang.
As a black pickup truck passed the house, its driver “threw up gang signs.” However, Ruelas paid no attention to the driver’s gestures. Later that night the trio walked to a store. As they walked, the same black pickup passed them.
Valdez testified that as they walked, he decided to go to defendant’s house to fight him. According to Valdez, once when he and his wife were looking at an apartment to rent, defendant came out of his house and “mess[ed] with” and “disrespect[ed]” Valdez in front of his wife and children. A few weeks previously, defendant had approached Valdez with a crowbar.
The night of the incident, Valdez intended to approach defendant and ask him “if he wanted to fight me one on one, that was it.” Ruelas accompanied Valdez to “cover . . . Valdez’s back.”
The Altercation
When they reached defendant’s house, the trio met a group of five or six men. Valdez testified that one or two beer bottles were suddenly hurled at him. Valdez was knocked out and remembered nothing until he awoke in the hospital days later. During the fight, Valdez lost a shoe.
Ruelas testified that shortly after the black pickup passed by, five men emerged from the darkness and “rushed” him, Castrejon, and Valdez. The attackers were armed with baseball bats and tools; one swung a metal pipe.
Ruelas began fighting with a light skinned, tall, thin man with a bald head. Another man, armed with the metal pipe, hit Ruelas in the head and arm. Ruelas emerged from the fight with a broken hand and arm.
When the fighting died down, Ruelas and Castrejon started to leave but returned to retrieve Valdez, who lay on the ground in a large puddle of blood. Ruelas and Castrejon picked up Valdez and carried him to a nearby store. The duo then drove Valdez to the hospital.
What the Neighbors Saw
Defendant’s neighbors also caught glimpses of the altercation. Fifteen-year-old Kimberly C. was outside when she saw “a lot of people, like, walking towards each other . . . .” One group walked down the street; the other group stood at the end of the alley. Kimberly saw someone from the group that was walking throw a bottle at a dog coming toward them. Kimberly went into her gated yard, and although she did not see what took place, she heard the sound of punches being thrown.
Kimberly’s mother, Susan C., heard “some voices outside, loud voices.” A moment later, Kimberly entered the house and told her “there was a fight outside.” Susan went outside and looked out the gate. She saw a body lying on the sidewalk and called 911.
Susan returned to the gate, but the body on the sidewalk had vanished. She looked down the street and saw two figures supporting a third figure, slumped between them, walking away. A group of teenage boys stood down the street near defendant’s house. After the fight, Susan saw three or four people get into a black pickup truck, which looked like one often parked outside defendant’s house.
Brett C., Susan’s husband, testified that he walked into his kitchen and his “wife’s brother’s girlfriend said there was a fight outside.” Brett told her to call 911 and went to investigate. Defendant and a group of young men approached him. Brett told them he had called 911 and the police were on the way. Defendant said he was looking for somebody, and Brett pointed toward another group of people a block and a half away and said: “Well, that must be who you are looking for.” Defendant and the others got into a black pickup and drove quickly away.
The Investigation
City of Corning Police Officer Timothy Osborn arrived on the scene in the aftermath of the fight. Freshly broken beer bottles littered the street, along with two unmatched tennis shoes. Osborn also found two puddles of blood on the sidewalk. Osborn was dispatched to a nearby business, where an injured man had sought help. The man was gone, but Osborn found blood spatters on the sidewalk outside the business.
Corning Police Detective Mel Allison interviewed Ruelas and Castrejon, who had been detained by another officer. Ruelas told Allison that defendant had driven by Castrejon’s house, “throwing up gang signs and talking gang shit.” Ruelas recognized defendant but was not concerned since defendant was alone and Ruelas “didn’t think [defendant] would do anything when he was alone.” As he walked to Castrejon’s parents’ house, he heard some gang members say “Norte.” During the fight, Ruelas saw Castrejon battle defendant near defendant’s house.
Castrejon told Detective Allison that he, Valdez, and Ruelas, accompanied by some female friends, were hanging out at Castrejon’s house drinking beer. Valdez and Ruelas wanted to go buy more beer, and Castrejon decided to join them. As they left the house, a black pickup truck Castrejon believed defendant owned went by.
After the pickup passed, the trio decided to walk to Castrejon’s parents’ house. When they got to Fifth and Butte Streets, they saw four or five people, who “jumped them.” Castrejon did not recognize any of the assailants. One man hit Castrejon on the side of his head with a stick. Castrejon fought back.
Castrejon got up and began to run but returned to help Ruelas get Valdez up off the street. The trio went to a nearby store for help, and then Castrejon drove Valdez and Ruelas to the hospital.
The beating left Valdez with his jaw broken in four places, his nose broken in two, and broken cheekbones.
Investigation of Defendant
Detective Allison interviewed defendant following his arrest. The night of the incident, defendant heard some yelling coming from the alley behind his house and went out to investigate. Suddenly, he was struck in the back of the head and knocked unconscious. When defendant regained consciousness a short time later, everyone was gone. According to defendant, the fight came about because he was “messing around with some Sure[ñ]o girls.” After the fight, defendant went to a fast food restaurant until it was safe to go home.
Detective Allison and Corning Police Officer David Kain served a search warrant at defendant’s house. The officers found three aluminum bats, one bloodstained. They did not find any other baseball-related items in the house. The officers also found a metal jack handle and several items of red clothing.
In defendant’s black pickup, Officer Kain found several photographs. In one photo, a shirtless defendant stands with a group of men, all sporting gang-related tattoos. Letters found in the truck discussed various Norteño gang members and were sprinkled with gang terminology.
Officer Kain also found music CDs by a Norteño artist. On one CD’s label the letter “S” was replaced by the letter “Z” and on another label the letter “S” was crossed out, “a sign of disrespect towards the Sureños.”
Expert Testimony
Eric Clay, an investigator in the Tehama County District Attorney’s office, specializes in gang investigations. Clay stated the two rival Hispanic gangs operating in the county are the Norteños and the Sureños. The two gangs evolved from prison gangs: the Norteños from Nuestra Familia and the Sureños from the Mexican Mafia. The two gangs engage in “a never-ending rivalry. Members of one gang assault, threaten, intimidate, vandalize, you name it, members of the other gang and it goes back and forth.”
The two gangs cleave to various symbols. Norteños favor the number 14, representing the letter “N.” Sureños favor the number 13, representing the letter “M.” Norteños sport red clothing; Sureños sport blue clothing.
According to Clay, gang members focus on power, respect, family, and notoriety. Clay testified: “The whole lifestyle of a gang is who’s the biggest, badest in the gang and who do we look up to, and that all is power albeit through fear, basically, and the respect is also from fear . . . .” Gang members follow a “code of silence” in their dealings with police, declining to aid the police in favor of settling conflicts with rival gangs on their own.
Clay stated that Norteños “commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist.” As examples, Clay described three criminal acts committed by members of the Norteño gang that, he stated, constituted “predicate acts” within the meaning of the criminal gang statute. In the first, in July 2000, four Norteños shot at the home of a Sureño gang member. Two Norteños were convicted of the drive-by shooting. In the second offense, in 2003, a Norteño stabbed two Sureños after exchanging words. Two Norteños were convicted in the case. In the third offense, also in 2003, a verbal altercation between Sureños and Norteños in a parking lot led to a shooting. A man and his wife, both Norteños, were convicted of the crime.
According to Clay, county law enforcement uses a common-sense approach to identifying gang members. Law enforcement considers a variety of factors, including admission of gang membership to jail personnel, wearing gang clothing, participation in gang activities, association with known gang members, displaying gang signs, possessing gang paraphernalia, and sporting gang tattoos.
Employing these criteria, Clay determined that Valdez, Castrejon, and Ruelas belonged to the Sureños. Clay also testified that in his opinion, defendant belonged to the Norteños.
Officer Kain also testified as an expert on gangs. Kain, too, considered defendant an active member of the Norteños. Kain believed the bats found in defendant’s home were utilized as weapons. In Kain’s opinion, the fight among Valdez, Ruelas, Castrejon, and the other men outside defendant’s house “was a gang-motivated fight.” The fight benefitted the Norteño gang by “boost[ing] their respect, it boosts their notoriety within their own gang, and it disrespects the Sure[ñ]os.”
Defense Case
Clayton Hollopeter, a Los Angeles County Probation Commissioner and creator of a gang intervention program, testified as a gang expert. Hollopeter testified most gang members join a gang by being “jumped in by other gang members for a period of time, usually four or five minutes, it is sort of a proof of your desire to be in the gang, it is a fight.” Some gang members’ children are “born into” the gang. Very few gang members are “hard core.” According to Hollopeter: “The active gang members may be as high as 20 or 25 percent of a gang’s membership, and there are guys who sometimes do gang stuff together with other gang members, but they still conduct their life in a more or less normal way.” In general, Hollopeter testified, gang members admit gang membership to him.
Yesenia Barriga, defendant’s niece, lives with her mother. On the evening of the altercation, Yesenia accompanied defendant and his son to a grocery store. They shopped for about two and a half hours, after which defendant dropped Yesenia off at home around 9:30 p.m. At around 10:30 p.m., defendant dropped off his son at the Barriga home. Defendant’s son spent the night there. Yesenia, defendant’s mother, and defendant’s sister all testified they saw a baseball pitching machine and other baseball equipment at defendant’s house.
DISCUSSION
I. Instructional Error
Defendant argues the trial court erred in failing to instruct the jury on the crimes that qualify as “primary activities” underlying the gang enhancement on the assault count and the charge of membership in a criminal street gang. The People concede the issue.
Section 186.22, subdivision (a) provides that any person “who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” is guilty of an offense. The enhancement, section 186.22, subdivision (b), applies when a defendant commits a felony “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 . . . .”
Section 186.22, subdivision (f) states: “As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
Defendant was charged with participation in a criminal street gang in violation of section 186.22, subdivision (a), and an enhancement under section 186.22, subdivision (b) in connection with the charge of assault by means of force likely to commit great bodily injury.
“To trigger the gang statute’s sentence-enhancement provision . . ., the trier of fact must find that one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) The phrase “primary activities” as used in section 186.22 implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s principal occupations. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, the trial court instructed pursuant to CALJIC No. 6.50 on the charge of participation in a street gang: “Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang is guilty of a violation of Penal Code Section 186.22(a). Pattern of criminal gang activity means the commission of or attempted commission of two or more of the applicable crimes and the last of those crimes occurred within three years after a prior offense and the crimes are committed on separate occasions or by two or more persons. [¶] . . . [¶]
Counsel stipulated that “two or more of those crimes have been committed by Norte[ñ]o gang members after September 26th, 1988 within three years of a prior offense and by two or more persons on separate occasions.”
“Criminal street gang means any on-going organization, association, or group of three or more persons, whether formal or informal: One, having as one of its primary activities the commission of one or more of the applicable criminal acts; two, having a common name or common identifying sign or symbol; and, three, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
“The phrase primary activity means that the commission of one or more of the crimes identified in this instruction be one of the group[’]s chief or principal occupation. This would . . . of necessity exclude the occasional commission of the identified crimes by the group[’]s members. In determining this issue, you should consider any expert opinion evidence offered as well as evidence of past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crimes charge[d] in this trial.” (Italics added.)
In regard to the gang enhancement to the assault count, the jury was instructed with CALJIC No. 17.24.2: “Criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of the applicable criminal acts;two, having a common name or common identifying sign or symbol; and, three, whose members individually or collectively engage in or have engaged in a pattern of criminal activity.
“Pattern of criminal gang activity means the commission of or attempted commission or conviction of two or more of the applicable crimes provided at least one of those crimes occurred after September 26th, 1988 and the last of those crimes occurred within three years of a prior offense, and the crimes were committed on separate occasions or by two or more persons.
“[T]he stipulation that I give [sic] to you earlier applies in this instruction and special allegation also.
“The phrase ‘primary activities’ used in this allegation means that the commission of one or more of the crimes identified in the allegation be one of the group[’]s chief or principal occupation. This would of necessity exclude the occasional commission of the identified crimes by the group members. In determining this issue, you should consider any expert opinion evidence offered as well as evidence of the past or present conduct by gang members involving the commission of . . . one or more of the identified crimes, including the crimes charged in this proceeding.” (Italics added.)
To find defendant guilty of violating section 186.22, the jury must find the gang is an association of three or more people with a common name or identifying sign or symbol; has as one of its primary activities the commission of one or more of the criminal acts listed in section 186.22, subdivision (e); and includes members who individually or collectively have engaged in a pattern of criminal activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses during the statutory period. (People v. Gardeley (1996) 14 Cal.4th 605, 617.)
In the present case, although the trial court instructed on these elements, the court failed to identify the “applicable criminal acts” that could have constituted the gang’s primary activities. The court merely stated the primary activities were “the applicable criminal acts” without any reference to any of the acts enumerated in section 186.22, subdivision (e). As defendant notes: “The jury could not possibly determine whether specified crimes were primary activities because the jury was never told what the specified (qualifying) crimes were.”
The trial court must instruct the jury on all the elements of a charged offense. Failure to instruct on an element of an offense or an enhancement is reversible per se. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Here, the trial court failed to inform the jury which criminal acts could support a conviction for the gang offense and the gang enhancement. The People concede the trial court committed prejudicial error by failing to properly instruct the jury on the elements of the crime of actively participating in a criminal street gang in count V and the gang enhancement on count II. We agree and shall remand for retrial.
Defendant also argues the court prejudicially erred by providing conflicting instructions on the intent required for the substantive gang offense and the enhancement. We agree with the People’s assertion that any such deficiency can be addressed at the time of retrial.
II. Sufficiency of the Evidence
Defendant argues retrial is barred on the crime of actively participating in a criminal street gang and the gang enhancement under section 186.22, subdivision (b)(1) because the People failed to present sufficient evidence to support the element of “primary activities.” If we find insufficient evidence to support a conviction on a substantive crime, the double jeopardy clauses of the state and federal Constitutions bar retrial. (Burks v. United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1]; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)
The element of primary activities is not satisfied by a general showing that a gang commits crimes. Instead, there must be substantial evidence that a chief or principal occupation of the gang is to commit any of the crimes specified in section 186.22, subdivision (e). (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004; Sengpadychith, supra, 26 Cal.4th at p. 323.)
Although defendant concedes substantial evidence supportive of the primary activities element may consist of expert testimony, he argues neither of the People’s experts stated directly what the gang’s primary activities were. Instead, one expert listed a variety of crimes committed by Norteño gangs, and the other expert testified that rivalry among the gangs led to the commission of both qualifying and nonqualifying crimes. This evidence, defendant contends, is insufficient to support the substantive gang count and the gang enhancement and bars retrial.
Defendant’s restrictive reading of the expert’s testimony does not withstand scrutiny. District Attorney Investigator Clay testified that Norteños “commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist.” (Italics added.)
Clay also characterized the whole milieu of Norteño gang members: “The whole lifestyle of a gang is who’s the biggest, badest in the gang and who do we look up to, and that all is power albeit through fear, basically, and the respect is also from fear . . . .” While it is true Clay did not directly testify that the Norteños’ primary activities included commission of any of the offenses listed in section 186.22, subdivision (e), Clay’s testimony established that the Norteños act out of a desire for power, respect, family, and notoriety. To effectuate these desires, Clay testified, Norteños commit “any crimes” such as “stabbings” and “shootings.” Clay’s testimony established that Norteños operated as a gang within the meaning of section 186.22, subdivision (f). The jury could reasonably deduce from Clay’s testimony that one of the Norteños’ primary activities was the perpetration of crimes such as assault by means of force likely to produce great bodily injury, attempted murder, or murder, crimes enumerated in section 186.22, subdivision (e).
The expert testimony in the present case is distinguishable from expert testimony found wanting in In re Nathaniel C., supra, 228 Cal.App.3d 990. In In re Nathaniel C., the expert, a police officer, offered only nonspecific hearsay, lacked any personal knowledge, and only repeated what another officer told him. The Supreme Court found such vague secondhand testimony could not provide substantial evidence that the required predicate offense by a gang member took place. (Id. at p. 1003.) Here, Clay testified he had personally been involved in the investigation of gang-related crimes committed by Norteños.
Our review of the record reveals sufficient evidence to support defendant’s conviction of the substantive gang offense and the gang enhancement under section 186.22, subdivision (b)(1). Therefore, although the trial court prejudicially erred by failing to properly instruct the jury on the elements of participating in a criminal street gang, double jeopardy does not bar retrial.
III. The Admissibility of Codefendant Ignacio Mendoza’s Statement
Defendant argues the trial court erred in admitting codefendant Ignacio Mendoza’s statement describing the beating of Valdez. Even though the court redacted the statement and admonished the jury not to consider it as evidence against defendant, defendant claims these efforts did not cure the error. Defendant contends the error was prejudicial on count I because the statement provided the sole evidence of an intent to kill, a necessary element of attempted voluntary manslaughter.
Because codefendants Ignacio Mendoza and Miguel Mendoza have the same last name, we will refer to them by their first names.
Background
Out of the jury’s presence, the prosecutor made an offer of proof as to the out-of-court statement to Detective Allison by Ignacio concerning the beating of Valdez. In ruling on defendant’s objections to Ignacio’s statements to Allison, the trial court stated it “doesn’t want to even hear the word ‘Johnny’ [Hernandez] when these statements are eliminated [redacted]. [¶] . . . [¶] No references to Johnny at all. ” The court also stated: “. . . I think it is appropriate that all of those statements have that admonition, all of the statements are admissible only as to the defendant who makes them . . . .”
Prior to Allison’s in-court testimony, the court instructed the jury: “This witness may be testifying to a number of things, but one of the things that I anticipate he will testify to are certain statements of each defendant. The statements of each defendant may only be used and may only be considered by you as to that defendant. You may not consider a statement of one defendant against another defendant. So you have to kind of put your mind in that mental compartment where when you hear his testimony regarding a statement by a defendant, it can only be considered as to that defendant and not any other defendant. And that would apply not only to this witness, but it would apply to any other witness the People may offer that testifies as to statements.”
Allison stated Ignacio gave differing versions of events. At first, Ignacio completely denied being involved in the fight. Eventually, he admitted being at the fight and “boxing” with a Sureño. Ignacio stated he might have broken someone’s arm because he heard a pop as he held the arm. He also said there was a person on the ground whom he kicked in the head, and there was a lot of blood.
Officer Kain also testified regarding Ignacio’s statements to officers. Ignacio told Kain he hit Valdez with a bat. After Valdez fell to the ground, Ignacio hit him six more times in the back of the head. Ignacio initially denied he was trying to kill Valdez but eventually admitted his actions could have done so.
At the end of trial, the court instructed the jury as follows: “Evidence has been admitted against one or more of the defendants and not admitted against the others. At the time the evidence was admitted, you were instructed that it could not be considered by you against the other defendants. Do not consider the evidence against the other defendants.
“Evidence has been received of a statement made by a defendant after his arrest. At the time the evidence of this statement was received, you were instructed that it could not be considered by you against the other defendants. Do not consider the evidence of this statement against the other defendants.
“Certain evidence was admitted for a limited purpose. At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.”
Discussion
The admission of Ignacio’s statement raises issues of first impression regarding the confrontation clause generally and, in particular, the United States Supreme Court’s exegesis of the provision in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Prior to Crawford, the Supreme Court expressed its disapproval of rules permitting the admission in a joint trial of a defendant’s confession implicating his codefendant (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton) -- unless the incriminatory references to the codefendant were redacted and appropriate admonishments given to the jury (Richardson v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176] (Richardson)).
Because Ignacio’s statement does not expressly implicate defendant, neither Bruton’s prohibition nor Richardson’s curative procedure would seem to apply in the present case. Arguably, however, the testimony is inadmissible nonetheless because it is adverse to defendant’s interests and constitutes testimonial hearsay within the holding of Crawford. Two issues of first impression are presented: 1) whether such a statement is indeed testimonial hearsay even though it does not explicitly refer to the defendant; and 2) if so, whether the Richardson sanitizing procedure can be applied so as to permit its introduction against Ignacio in a joint trial with his codefendants.
As interesting as these issues might be, we decline the opportunity to resolve them. Neither side contends Ignacio’s statement is admissible against anyone but Ignacio. Indeed, as noted, the jury was instructed not to consider the statement in determining defendant’s guilt. From our review of the record, once Ignacio’s statement is removed from the evidentiary mix, there is not sufficient evidence to support the jury’s verdict of attempted manslaughter. This evidentiary lacuna renders moot the legal issues raised by defendant.
Attempted manslaughter requires evidence that the perpetrator had “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (CALJIC No. 6.00.) The verdict reflects the jury’s determination that Ignacio was the actual perpetrator. In finding Ignacio guilty, the jury could properly rely on his confession, which is particularly damning. Ignacio stated he hit the victim six times with a bat, admitting the force of the blows “could have killed him.”
Unlike the evidence against Ignacio, there is no evidence that defendant intended to kill. At oral argument, the Attorney General insisted the prosecution was not compelled to identify the direct perpetrator or establish his intent to kill. Rather, the prosecution was required to show only that the Norteño participants in the fight intended to commit an assault that, under the circumstances, would naturally and probably result in a fatality; that burden was easily met by evidence that the Norteños lured their hapless victims into a trap and attacked them with sticks and pipes. The Attorney General is wrong.
“It is important to bear in mind that an aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), quoting People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).)
“[O]utside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator. . . . ‘[T]he prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” [Citation.]’” (McCoy, supra, 25 Cal.4th at p. 1118, quoting Prettyman, supra, 14 Cal.4th at p. 259.)
Given the absence of evidence that defendant intended to kill the victim, his conviction of attempted manslaughter must necessarily rest on the natural and probable consequences doctrine. Under the doctrine, it is not necessary for the prosecution to establish that defendant intended to kill Valdez, or even that defendant was aware of Ignacio’s intent to do so. However, the prosecution must show that defendant knowingly and intentionally aided and abetted the crime of assault, and that the crime of attempted manslaughter was a natural and probable consequence of that assault. This requires the prosecution to establish that one of the accomplices committed the crime of attempted manslaughter. One cannot aid and abet a crime that was not committed.
People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), a case heavily relied on by the Attorney General, does not suggest otherwise. In Montes the court held attempted murder was a foreseeable consequence of an altercation that began with shouting and an assault with a chain. The court noted the “great potential for escalating violence during gang confrontations” and that “[w]hen rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities . . . .” (Id. at p. 1056.) The same could be said about the present case. However, the tricky evidentiary issues involved in our case were not present in Montes, where the actual perpetrator was identified and his guilt determined during the case against Montes, his accomplice.
The record before us reveals that the only evidence of intent to kill, an essential element of attempted manslaughter, rests with Ignacio and is embodied in his confession. However, this statement cannot be considered in deciding defendant’s guilt. Thus the record is bereft of evidence essential to support the jury’s verdict and we are compelled to reverse defendant’s conviction of attempted manslaughter. Because the five-year enhancement imposed under section 667, subdivision (a)(1) rests upon defendant’s conviction of attempted manslaughter as a serious felony, the enhancement must also be reversed.
Nor can we consider the jury’s finding of guilt as to Ignacio in adjudicating defendant’s guilt if for no other reason than the fact that the finding was premised in large part on Ignacio’s confession. Thus, as to defendant, the jury could not have found that the crime of voluntary manslaughter occurred.
IV. Prosecutorial Misconduct
Defendant contends the prosecutor twice committed prejudicial misconduct during closing argument. Although defense counsel failed to object to these comments by the prosecutor, defendant claims any objection would have been futile. In the alternative, defendant contends defense counsel performed ineffectively in failing to object.
Defendant faults the prosecutor for two specific commentaries. In the first, defendant claims the prosecutor committed misconduct in stating that Castrejon’s, Ruelas’s, and Valdez’s “time will come.”
During closing argument, the prosecutor stated: “One of the things you are probably asking yourself right now is: Why aren’t the Sure[ñ]os on trial? You notice they are all in jail clothes when they testified; their time will come. Raphael Castrejon is a Sure[ñ]o; Ramon Ruelas, Sure[ñ]o; Zeferino Valdez, Sure[ñ]o. So we have three Norte[ñ]os and three Sure[ñ]os and they get together and have a little fight. By this stage of the game, I expect you’re also all saying to yourselves, I don’t know who did what. That is the beauty of this type of prosecution. It just doesn’t matter who did what because basically the gang is an entity. They act as one. Whatever one does, the other is also responsible for, that is how aiding and abetting works.”
Defendant argues the prosecutor reinforced the future culpability of the Sureños when she stated: “The Sure[ñ]os are not on trial today. No one on the prosecution team is standing up for the Sure[ñ]os. They are just as guilty as the Norte[ñ]os are.”
The court instructed the jury that they should not take into account why any other perpetrator was not joined with defendants. (CALJIC No. 2.11.5.) According to defendant, the prosecutor’s comments intruded upon this instruction by “impliedly” promising the jury that the Sureños would be prosecuted for the same crime.
A prosecutor commits misconduct when he or she uses deceptive or reprehensible methods in an effort to persuade the jury. When the claim of misconduct focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant claims no objection or request for an admonition could have cured the harm caused by these comments. To preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition. If the defense fails to object, a claim of prosecutorial misconduct is reviewable only if an objection would have been futile or would not have cured the harm caused by the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 753 (Welch).)
Defendant strenuously argues the prosecutor’s comments were an attempt to reassure the jury that if it found the Norteños guilty, the Sureños too would be held responsible at some future date. The comment appealed to the jurors’ sense of fairness and made it easier to convict defendants. The People argue the comment that the Sureños’ “time will come” was “patently harmless” and that the prosecutor was “merely trying to introduce the concept of principal liability.”
The prosecution’s pointed comments are not susceptible to the People’s mild interpretation. Such comments verge on misconduct. Although the court instructed the jury not to consider why any other perpetrator was not also on trial, the prosecution directed the jury’s attention to the retribution awaiting the Sureños.
In the second instance of alleged misconduct, the prosecution stated, during closing argument: “Like it or not, we can no longer ignore the fact that there are gangs in Tehama County. It used to be a big city thing, it may have been the reason why some of you moved up here. To get away from that sort of thing. There are a number of documented Norte[ñ]os and Sure[ñ]os in Tehama County and some of them have gone to prison for some serious crimes, [during] jury selection several of you indicated that you had an awareness that there was gang activity in our communities, in our area. And they are here, they are no longer a big city problem, they are our problem and we have to deal with them.”
A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. “‘The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society’s woes is far too heavy a burden for the individual criminal to bear.’” (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149, quoting United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441.)
The prosecutor’s comments veered dangerously close to asking the jury to convict defendant in an effort to rid the county of criminal gang activity. We disagree with the People’s contention that the remark “amounts to no more than a comment on the reality -- however sad -- that gangs have insinuated themselves into the very fabric of modern life and are not merely a problem confined to the inner cities or other metropolitan communities.” The comments specifically linked defendant to a local scourge and urged the jurors to send the gangs “a message.”
However, although we find the comments by the prosecutor concerning the Sureños’ eventual prosecution and the desirability of removing gangs from the community completely inappropriate, they do not amount to misconduct. The trial court instructed the jury pursuant to CALJIC Nos. 1.00 and 1.02 that the attorneys’ statements were not evidence, that it must follow the law as given by the court and ignore contradictory statements by the attorneys, and that it must not decide the case based on sympathy or prejudice.
Moreover, we presume that the jury relied on these instructions, not the attorney’s arguments, in convicting defendant. Under the court’s instructions, the jury could completely disregard all counsel’s arguments. In addition, we presume “‘the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’” (People v. Morales (2001) 25 Cal.4th 34, 47, quoting People v. Sanchez (1995) 12 Cal.4th 1, 70.)
We also note that defense counsel failed to object and request a timely admonition at trial. If the defense fails to object, a claim of prosecutorial misconduct is reviewable only if an objection would have been futile or would not have cured the harm caused by the misconduct. (Welch, supra, 20 Cal.4th at p. 753.) Here, the complained-of comments are not so inflammatory or egregious that a timely admonition would not have cured any resulting harm.
Nor do we find defense counsel performed ineffectively in failing to object to the comment. In order to show ineffective assistance of counsel, defendant must show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. In addition, defendant must show it is reasonably probable a more favorable determination would have resulted had defense counsel performed effectively. (People v. Price (1991) 1 Cal.4th 324, 440.)
Given the comments complained of, defense counsel’s failure to object does not support a claim of ineffective assistance. The prosecutor’s brief remarks about the possibility of looming Sureño punishment and ridding the community of gangs pale in comparison to the evidence against defendant. Defendant drove by Castrejon’s house flashing gang signs and yelling gang slogans. When the Sureños arrived at defendant’s house, men armed with baseball bats, tools, and a metal pipe attacked them. Castrejon fought with defendant. A search of defendant’s home and pickup truck unearthed a bloodstained bat and numerous gang-related items. The evidence at trial placed defendant in the thick of the altercation that left Valdez grievously wounded. Defendant cannot show that a more favorable determination would have resulted had defense counsel objected to the prosecution’s brief remarks.
DISPOSITION
Defendant’s conviction for attempted manslaughter (count I) and the true finding with respect to the section 667, subdivision (a) enhancement are reversed; retrial is barred. Defendant’s conviction for participating in a criminal street gang (count V) and the true finding with respect to the section 186.22, subdivision (b)(1) gang enhancement are reversed and remanded for possible retrial. In all other respects, the judgment is affirmed.
Our disposition renders unnecessary a discussion of defendant’s arguments regarding the trial court’s assessment of a court security fee and instruction on the natural and probable consequences doctrine.
We concur: MORRISON, J., ROBIE, J.