Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County No. MA025454, Curtis B. Rappe, Judge.
MANELLA, J.
Joseph Shipp, by appointment by the Court of Appeal under the California Appellate Project, Independent Case System, for Defendant and Appellant DeWayne Strong.
Corinne S. Shulman, by appointment by the Court of Appeal under the California Appellate Project, Independent Case System, for Defendant and Appellant Aaron Sobalvarro.
Law Offices of Aron Laub and Aron Laub, for Defendant and Appellant Diego Sobalvarro.
Appellants Diego Manuel Sobalvarro, Aaron Marvin Sobalvarro and DeWayne Ray Strong were charged with the willful, deliberate, and premeditated murder of Carlos Ochoa (Penal Code § 187, subd. (a)). After a joint jury trial, Diego and Aaron were convicted as charged; Strong was convicted of second degree murder. All three appealed.
Appellants Diego and Aaron Sobalvarro will be referred to by their first names. Unless otherwise specified, statutory references are to the Penal Code.
In Strong’s appeal, he contends the trial court erred by: (1) permitting a prosecution witness to testify concerning Strong’s possible gang affiliation; (2) refusing to instruct the jury on voluntary intoxication or to allow his defense counsel to argue the issue; (3) refusing to instruct the jury on voluntary manslaughter resulting from imperfect self-defense; (4) failing to instruct sua sponte on involuntary manslaughter under the theory that potential aider and abettor liability resulting from the “necessary and probable consequences” doctrine did not necessarily point to murder; (5) failing to give sua sponte the cautionary instructions on accomplice testimony under the theory that the two primary prosecution witnesses should have been considered possible accomplices; (6) giving CALJIC No. 2.11.5, which instructed the jurors not to speculate or guess as to why other persons who might have been involved in the crime were not then on trial; and (7) giving CALJIC No. 2.21.2, which advised the jurors they were free to reject the testimony of a witness who willfully testified falsely.
Aaron presents two contentions on appeal: (1) the prosecution presented insufficient evidence at trial to support that he was anything more than an accessory after the fact to dispose of the body, and (2) the court erred in refusing to allow him to introduce evidence that the victim received threats and threatening telephone calls from unidentified parties prior to and on the day of the killing.
Diego’s appeal presents a single contention: the trial court erred in admitting Strong’s statement to a witness that “[me] and Diego might have killed somebody.” For the reasons discussed, we reject these contentions and affirm the jury’s verdict.
The Sobalvarros also “join in all issues raised in [Strong’s] brief” to the extent those issues apply to them or would affect the judgment in their respective cases.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence at Trial
1. Prosecution Case
Aaron, nicknamed “Malo,” and Diego, nicknamed “Stomper,” are cousins. In August 2002, they were residing in a mobile home park on East Avenue I in Lancaster with David Valdez, nicknamed “Gadget.” The Sobalvarros were members of a gang called “Varrio Nueva Estrada” or “VNE.” The victim, Carlos Ochoa, nicknamed “Risky,” sometimes sold marijuana to Aaron and had visited the mobile home numerous times prior to his death. Strong and Nick Koufos had also been at the mobile home numerous times. Strong, Koufos and the Sobalvarros were all muscular men, larger than Ochoa.
Koufos was tried separately for his part in the killing and convicted of first degree murder. Strong was initially tried separately, but his first trial resulted in a hung jury.
a. Testimony of Valdez and Avery
On August 29, 2002, John Avery, nicknamed “Hon,” went to visit Valdez at the mobile home park. The two were regular marijuana users and were hoping to obtain some that day.
Avery and Valdez were the primary percipient witnesses called by the prosecution. Valdez testified under a grant of immunity.
Sometime during the evening of August 29, Valdez and Avery were sitting outside the mobile home. Strong, Koufos, and Ochoa were nearby. Diego was either with the three men or inside the mobile home where, fifteen or twenty minutes earlier, Avery had seen Aaron sleeping on a couch. Koufos grabbed Ochoa from behind, putting him in a “full Nelson” and lifting him off his feet. Strong struck Ochoa in the face, knocking him out. Valdez and Avery did not hear any argument among the men or hear Koufos and Strong say anything to each other prior to the attack. Koufos and Strong dragged or carried the apparently unconscious Ochoa into the Sobalvarros’ mobile home.
In a pre-trial interview with investigators, Valdez had said that Diego was standing with Strong and Koufos when they attacked Ochoa and followed them inside. At trial, Valdez recalled Diego being inside when the attack occurred. Avery testified Diego “might have been” outside when the attack occurred.
Valdez and Avery decided to stay where they were, fearing that if they left they would give the appearance of “snitching” and their lives would be jeopardized. While they waited, Valdez heard “stomping” noises from inside the mobile home. Ten or fifteen minutes later, Strong came out of the mobile home and said either that “I” or “we” had just killed somebody and told Valdez if he said anything he would be next.
Valdez and Avery got into Avery’s car and waited. A few minutes later, Aaron came out of the mobile home. He asked Valdez how he was doing and told Valdez to “hang tight,” that they were going to be leaving soon. One of the Sobalvarros told Avery that he (Avery) would be giving them a ride. Aaron got into Avery’s car with a duffle bag. Diego got in as well. After a few minutes Koufos and Strong drove up in Ochoa’s car. One of the Sobalvarros instructed Avery to follow them. Avery, who was afraid after seeing what had happened, did not believe he was free to decline.
The two cars stopped at a Texaco gas station. Aaron asked Valdez if he was okay and said: “Don’t worry. You’ll get to go home.” After the cars were fueled, one of the Sobalvarros told Avery to continue following Ochoa’s car. Avery followed the car as it drove off the end of the paved road into the desert near 70th Street West and Avenue M in Lancaster. Avery stopped his car and Koufos and Strong drove Ochoa’s car out a little farther into the desert. Approximately five minutes later, Koufos and Strong drove Ochoa’s car back toward town and the Sobalvarros again instructed Avery to follow it. The two cars stopped at a second gas station, where someone filled a gas can that was placed in Ochoa’s car. The two parties returned to the same location in the desert. Avery and the three passengers in his car (Aaron, Diego and Valdez) again waited some distance from Koufos and Strong in Ochoa’s car. About five minutes later, Koufos and Strong drove away and one of the Sobalvarros told Avery to leave. As Avery drove away, he looked in his rear view mirror and saw something burning.
Avery recalled both Sobalvarros giving him instructions and directions during the drive, but does not remember which of the two gave which specific instruction or direction. He further testified that there may have been periods when his car was in the lead and the Sobalvarros were telling him where to go.
Valdez, who was in the back seat, testified he was afraid and kept his head down during the drive. Accordingly, he did not see where they went or what they did.
After leaving the desert, the Sobalvarros directed Avery to drive to the home of a friend of Aaron’s, but no one was there. They then directed him to a second location where the Sobalvarros got out. Valdez and Avery went to Valdez’s brother’s house.
The first time Valdez spoke with the investigating detectives was a month after the murder. The first time Avery spoke with detectives was in November 2002. Valdez initially told detectives a different version of events before giving a statement similar to his testimony at trial. Avery, fearing for his life, moved out of state after the incident. He appeared at trial only after being taken into custody to secure his appearance.
b. Other Testimony
Earlier on the day of the murder, prior to going to the Sobalvarros’ mobile home, Strong and Koufos had been at the residence of Tonya Downing. Downing was a member of a gang, but not VNE. Just before the two men left, Strong said they had to go “handle something.” Downing next saw Strong and Koufos early the following morning (August 30), at approximately 6:00 a.m. Strong had Ochoa’s car and car keys. He also had a “busted knuckle” on his right hand, smelled like smoke, and had ashes or soot on him. He seemed nervous or scared. Downing did not notice any alcohol on Strong’s breath, but Koufos appeared to be drunk. Strong asked Downing if she wanted to go see the body of someone she knew. Strong said “[me] and Diego might have killed somebody.” Later, Downing heard about Ochoa’s burned body having been found in the desert and spoke with the detectives investigating the case.
Downing had known Ochoa for a few months.
At approximately 8:30 a.m. on August 30, Andrea Rose Hermanson, an acquaintance of Strong’s, saw him driving Ochoa’s car. Although the day was warm, Strong was wearing socks over his hands and arms. Hermanson asked why he was wearing the socks, but Strong did not explain.
Nicole Dominguez, Ochoa’s live-in girlfriend and the mother of his two children, lived with him in an apartment approximately five miles from the Sobalvarros’ mobile home. Sometime during the afternoon of August 29, Dominguez answered the telephone. The caller identified himself as “Malo” and Dominguez recognized the voice of Aaron Sobalvarro, whom she had met once before. The caller spoke briefly with Ochoa. At approximately 8:00 or 8:30 p.m. that evening, Ochoa left, saying he was going to see “Malo” and would be back in an hour. He took a bag of marijuana with him.
The next morning (August 30), at approximately 10:30 or 11:00 a.m., Dominguez saw Ochoa’s car pull into a parking space near their apartment. An unknown man Dominguez later identified as Strong was driving the car. He appeared to be conversing with a woman in a second car. Dominguez yelled at Strong, asking what he was doing in her car. Strong and the woman in the second car drove away. Dominguez called the authorities and a deputy took her to identify Strong and the car a short while later.
Strong was pulled over by deputies on the morning of August 30. The deputies noticed an odor of gasoline coming from the car’s trunk. The exterior was dusty and dirty. Inside the car, the deputies found a nearly empty 40-ounce bottle of malt liquor and a full bottle of the same beverage. When asked whose car he was driving, Strong first said the car was his, then said he bought the car from “some guys,” and then changed his story again, saying he had borrowed it from a girl. When asked to specify the location from which he had borrowed the car, he took the officers to the mobile home park, eventually directing them to the Sobalvarros’ mobile home. No one was there at the time. Strong was arrested for auto theft, and released after a brief detention. The shoes worn by Strong when he was first arrested contained gasoline residue.
On August 31, detectives Joseph Edward Purcell and Philip Guzman interviewed Strong. Strong advised them to talk to Valdez. The detectives noticed that Strong had an injury on his right hand, near the knuckle.
Barbara Scott, Strong’s grandmother, testified that Strong assured her he had done nothing wrong. However, in a November 2002 interview, she informed Detective Purcell that Strong had told her he had broken Ochoa’s leg, dragged him down a flight of stairs, and, along with Koufos, driven the body out to the desert, drenched it with gasoline, and lit it on fire. Strong had also reportedly said to Scott “the whole thing was a drug deal” and “he had been forced to do it.”
Ochoa’s body was found, badly burned, on August 30 in the desert at Avenue M and 78th Street in Lancaster, three blocks past the paved road. There was a ligature mark on his throat and a green substance that appeared to be the residue of a plastic or electrical cord around his neck. Ochoa’s femur -- a large bone in the thigh -- was broken. A break of that type requires application of a great deal of force. There was no evidence of any fracture to his face or injury to his brain. The cause of death was “asphyxia, due to probable ligature strangulation.”
Investigators found a bloodstain in the master bedroom of the Sobalvarros’ mobile home. The blood matched Ochoa’s. Investigators also found a green electrical cord in the master bedroom.
Aaron Sobalvarro was apprehended in January 2003 in Oregon. He told a detective he left the Lancaster area on September 1, 2002, having purchased the bus ticket on August 30. He denied living in the mobile home at the end of August. He admitted knowing Ochoa and occasionally purchasing marijuana from him. During the interview, Aaron said he was not going to “break” and that he knew who “did it.” Diego Sobalvarro was apprehended in March 2003 in Las Vegas.
2. Defense Case
Strong was the only defendant to testify. Strong described himself as an alcoholic during the summer of 2002. His habit was to have a drink first thing in the morning and to drink steadily throughout the day.
In August 2002, he had just become acquainted with Diego. He did not know Aaron. Strong was aware that the Sobalvarros were in the VNE gang. He was acquainted with Valdez and Avery, whom he described as “little wanna-be[s]” of VNE or “protégé[s]” of the Sobalvarros. He and Koufos were at the Sobalvarros’ mobile home park almost every day in August because Koufos was drawing a large tattoo on Diego. Strong went along primarily to visit friends who lived in the park.
Strong believed that on August 29, 2002, he followed his usual pattern of having a drink first thing in the morning and drinking throughout the day. He did not specifically remember leaving his house or anything he did before arriving at the mobile home park. He did not remember how he got to the mobile home park but recalled that during that summer, he and Koufos were often driven around by Koufos’s brother, Demetrius. Once they arrived at the mobile home park, Strong and Koufos went to the home of Strong’s friends. Koufos left, but soon came running or jogging back and told Strong that Diego was having problems with somebody at the Sobalvarros’ mobile home and that “the guy ha[d] . . . a gun.” Strong thought this was “outrageous” and that Koufos was “overreacting,” as he “always overreacts like that to little things because he doesn’t know really . . . what’s going on.” Consequently, Strong “didn’t believe [Koufos].”
Avery testified that Demetrius Koufos had been at the mobile home park prior to the attack on Ochoa. To distinguish him from his brother, Demetrius Koufos will be referred to by his first name.
Strong accompanied Koufos to the Sobalvarros’ mobile home. When they arrived, Ochoa was on the porch along with Diego, Valdez and Avery. Demetrius was nearby, standing by his car. Aaron was inside the mobile home, near the window. As Strong approached the porch, Diego grabbed Ochoa in a “full Nelson” and carried him into the mobile home. Strong and Koufos followed; Valdez and Avery stayed outside.
Once inside, Diego hit Ochoa’s face against the doorframe of the master bedroom. Then Diego pushed Ochoa onto the floor, fell on top of him, grabbed a cord, and wrapped it around his neck. Strong asked who the guy was and Diego said Ochoa was a “rat” or “rata.” While being strangled, Ochoa called out “Malo.” Aaron said: “Fuck him. Fuck that guy.”
Koufos sent Strong outside to tell Demetrius to leave. Strong did as instructed and Demetrius drove away. When Strong went back inside, Diego was still in the process of choking Ochoa. There was blood dripping from Ochoa’s face onto the floor. Aaron angrily confronted Strong, asking him why he told Demetrius to leave and where Demetrius was going. Strong assured Aaron he had not told Demetrius to get help. Aaron, who had been pacing back and forth, stepped outside briefly to speak to Valdez and Avery. Strong followed him outside. He observed Aaron get into Ochoa’s car and pull it into the mobile home’s carport.
Strong went back inside the mobile home and asked Koufos if he wanted to leave. He saw Diego pick up Ochoa’s apparently lifeless body and carry it out the back door. Diego said: “[T]his is what happens to rats.” Strong walked out the front door where he saw Valdez and Avery standing by Avery’s car. When Strong went back inside, he learned that he and Koufos were expected to go with the Sobalvarros because the cars needed gas and Koufos was the only one with cash. The Sobalvarros came out of the mobile home carrying duffle bags. Diego had a gun in his waistband. Strong started to feel afraid because of the way Diego was acting and because he had a gun.
Strong and Diego got into Ochoa’s car. Diego took the driver’s seat. Aaron and Koufos got into Avery’s car. They drove to the Texaco station and then out into the desert. Diego took Ochoa’s body out of the trunk and dragged it toward a telephone pole, and said he needed more gasoline. The two cars went to a second gas station and then returned to the body. Diego wrapped the body with a blanket, poured gasoline on it and set it on fire. Diego got into Avery’s car, and the car drove away, with Diego, Aaron, Avery and Valdez inside.
Strong testified that at some point someone pulled Ochoa’s pants down to expose his genitals, but did not say when this occurred or who did it. He denied knowing that Ochoa’s leg had been broken or who had broken it.
Strong got into Ochoa’s car behind the driver’s seat; Koufos was on the passenger side. Strong started to follow Avery’s car. However, he “almost crashed” and decided he was “too drunk to drive,” so he changed places with Koufos who took over driving. Strong did not want the responsibility of disposing of Ochoa’s car, so Koufos and Strong first drove back to the mobile home park looking for Diego. They then drove to Koufos’s father’s house. Koufos went inside and Strong fell asleep in the car. When Strong awoke, he drove to a friend’s mobile home, then to Tonya Downing’s residence. He did not remember asking her if she wanted to see a body in the desert. He denied telling her that he and Diego might have killed somebody. During the time between leaving the desert and arriving at Downing’s place, he did not consume any alcohol.
Strong eventually arrived at Ochoa’s apartment. He had been given the address by Diego the night before. He was followed by a friend -- “Felicia” -- who was in another car. His plan was to drop Ochoa’s car off at that location and leave with Felicia. However, when Dominguez appeared and started yelling at him, he panicked and fled with the car.
Felicia lived near Hermanson, the witness who had seen Strong driving Ochoa’s car with socks on his hands. Strong admitted encountering Hermanson, but said she mistook something he was using to wipe down the back seat of the car for socks.
After his arrest, Strong did not tell the deputy who questioned him who the car belonged to or what had happened, because he did not trust him. Later, he told the detectives what happened; gave them the names, nicknames and physical descriptions of everyone who had been at the mobile home that night; and told them where the Sobalvarros could be found (Oregon and Las Vegas). Strong was asked how he knew where the Sobalvarros went after the killing. He said: “[J]ust from being over there hearing their conversations I knew where they all planned to go after -- it was not after a murder. That’s for sure. But it was -- it’s where they planned to go to get away.”
The defense also called a deputy who had conducted a field sobriety test on Strong on August 30, the day he was stopped driving Ochoa’s car. The deputy testified that the decision to test for sobriety was made because of the alcohol containers found in the car and because Strong appeared to be under the influence of alcohol and was dozing off during the interview. Strong told the deputies he had last had a drink at “11 o’clock,” but did not specify a.m. or p.m. The sobriety tests were conducted at noon. Two breathalyzer tests were administered and showed Strong’s blood alcohol level to be .19 and .20.
An expert called by Strong testified that a blood alcohol level of .20 affects the ability to operate machinery; and that a high enough blood alcohol level can cause a blackout, preventing the conscious brain from storing memory.
B. Relevant Argument
During closing argument, the prosecutor told the jury “[w]e may never know for sure who strangled Carlos Ochoa[,] but it doesn’t matter. . . . What we want to ask ourselves . . . is did the individual defendants -- from Aaron Sobalvarro to Diego Sobalvarro to Dewayne Strong -- did they individually play a part in the overall scheme of things? [¶] Did they each contribute something to this crime?”
Counsel for Aaron ridiculed the notion that Aaron, “obviously a Hispanic VNE gang member,” would recruit “Koufos and Strong -- two obviously non-Hispanic fellows -- to do this horrible crime.” He argued that the evidence supported that Koufos and Strong committed the killing on their own without input from the Sobalvarros, “[t]hat in fact Koufos and Strong had their own issues or Koufos or Strong or somebody that they were aligned with had their own reasons to take care of [Ochoa] . . . .”
In closing argument, counsel for Strong emphasized discrepancies in Valdez’s and Avery’s testimony, and suggested they were fabricating or slanting their testimony to implicate Strong and Koufos, while minimizing the culpability of the Sobalvarros. Counsel contended that Valdez and Avery were likely fearful of the Sobalvarros due to their gang affiliation. Strong’s counsel emphasized that Valdez and Avery were well acquainted with the Sobalvarros and knew they were VNE members, but barely knew Strong and Koufos. At one point, counsel asked the jury to consider who Valdez and Avery were more likely to be afraid of -- “[g]uys [they] don’t know or guys [they] know and know are hardcore guys?”
Counsel for Diego countered this suggestion in his closing argument: “This gang thing is kind of interesting . . . [b]ut the repeated reference to [the] gang as a reason why Valdez and Avery would lie fails . . . to hold water. . . . Maybe [Valdez] was fearful of any gang. Maybe he was fearful of two guys he had just seen beat a guy into unconsciousness. Maybe he was fearful of everybody.”
II
DISCUSSION
A. Strong’s Appeal
1. Evidence of Strong’s Gang Membership
Strong contends the trial court abused its discretion under Evidence Code section 352 in permitting Diego’s attorney to elicit Avery’s belief that Strong was a gang member. He contends evidence of his gang affiliation was unnecessary to the issues at trial and unduly prejudicial. For the reasons discussed below, we disagree.
a. Background
There were a number of discrepancies between Valdez’s recollection and Avery’s recollection of events on the day of Ochoa’s murder. There were also discrepancies between Valdez’s testimony at trial and information he had given investigating detectives. During cross-examination of the witnesses, Strong’s counsel highlighted these discrepancies, and in closing argument contended that Valdez and Avery were shading their testimony to favor the Sobalvarros and implicate Strong. To support this thesis, Strong’s counsel elicited Valdez’s knowledge that the Sobalvarros were gang members and that those who testified against gang members could suffer retribution. Strong’s counsel also attempted to elicit a concession that Valdez was afraid of the Sobalvarros, but Valdez denied being afraid of them.
For example, they testified differently concerning the time the attack on Ochoa occurred and where they were located when they observed it. In addition, Avery did not recall Strong threatening Valdez after emerging from the mobile home and Valdez testified that Koufos and Strong, not the Sobalvarros, issued the instruction to follow Ochoa’s car after Ochoa’s body was placed inside.
For example, in a pre-trial interview with the detectives, Valdez had said that he had seen Ochoa and Aaron arrive together in Ochoa’s car, that Diego was standing with Strong and Koufos when they attacked Ochoa and followed them inside, and that after the murder, one of the Sobalvarros told him not to say anything about what had happened. Valdez did not remember these facts at trial. In that same interview, Valdez reported that Strong had said on emerging from the mobile home “they” killed someone, but Valdez did not tell the detectives about Strong’s threat that Valdez could be next.
When Diego’s counsel cross-examined Valdez, he asked whether Valdez was afraid of Strong and if so, why. Valdez had not heard that Strong was a gang member, but said he had knowledge that Strong had physically attacked someone. Counsel for Strong objected. The court overruled the objection and advised the jury: “I’m not allowing this for the truth of anything said to the witness but simply to help you evaluate his state of mind.” Later, when Strong’s counsel objected to a follow-up question, the court explained at sidebar: “[Y]ou raised the issue of [Valdez] trying to favor [Diego] and I think what [Diego’s] counsel is trying to do is the opposite.”
When Avery was on the stand, Strong’s counsel continued the strategy of highlighting discrepancies between his and Valdez’s testimony and possible reasons for attributing certain conduct to Strong. In response to specific questioning from Strong’s attorney, Avery testified that he had heard the Sobalvarros were gang members and conceded that they frightened him “somewhat.”
b. Relevant Evidentiary Ruling
Against this background, Diego’s attorney undertook his cross-examination of Avery. He asked if Avery was aware Strong was a gang member. Strong’s attorney objected. The court overruled the objection, but instructed the jury as follows: “[A]s I’ve told you in other testimony [concerning] what people thought about gang membership[,] whether it’s true or not is irrelevant to these proceedings. Nobody is being charged with being a gang member or doing some act on behalf of the gang. But . . . obviously what a witness thinks about someone’s affiliation with a gang[,] whether it’s true or not[,] says a lot about their credibility and why they acted this way or didn’t act that way. . . . [I]f the witness says that he believed that Mr. Strong was a member of X gang you’re not to take that for proof of that fact. [¶] There is no proof one way or another. [¶] It’s simply relevant in your assessment of why Mr. Avery acted one way or another. It’s as to his state[] of mind and his credibility in these proceedings and so forth.” Avery testified he believed Strong was a gang member. He did not know which gang.
Prior to its deliberations, the jury was told, pursuant to CALJIC No. 2.09: “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.”
c. Admissibility of Evidence
Strong contends the evidentiary value of Strong’s suspected gang membership “was minimal, insubstantial and tangential” and that the court “fail[ed] to scrutinize the proffer, which resulted in use of this evidence as back-door evidence of motive . . . .” Strong supports the latter contention by pointing to the argument made by Aaron’s counsel in closing that Koufos and Strong “or somebody that they were aligned with” could have had “their own reasons to take care of [Ochoa].” Strong’s assessment of the value of the testimony is incorrect, and to the extent Aaron’s attorney attempted to misuse the evidence, the failure to object and request admonishment precludes consideration of that misuse here.
As a general proposition, “admission of evidence of a criminal defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged.” (People v. Williams (1997) 16 Cal.4th 153, 193; accord, People v. Avitia (2005) 127 Cal.App.4th 185, 192, quoting People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449 [“[G]ang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’”].) In cases such as the present one which do not involve a gang enhancement, “‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’” (People v. Avitia, supra, 127 Cal.App.4th at p. 192, quoting People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it.” (People v. Williams, supra, 16 Cal.4th at p. 193.) Nevertheless, “[g]ang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.” (People v. Avitia, supra, 127 Cal.App.4th at p. 192.) “A trial court’s admission of . . . gang testimony, is reviewed for abuse of discretion.” (Id. at p. 193.)
Strong’s contention that Avery’s belief concerning Strong’s membership in a gang was of “minimal, insubstantial and tangential” value is belied by his defense strategy, illustrated by his counsel’s tactics in cross-examining Valdez and Avery and his argument to the jury. Because both Valdez and Avery testified that they saw Strong and Koufos take the lead in attacking Ochoa and disposing of the body, their testimony was potentially more damaging to Strong than to the Sobalvarros. In cross-examining Valdez, Strong’s attorney focused on the differences between Valdez’s testimony at trial and his earlier statements to authorities, including his inability to recall whether Diego was present when Strong and Koufos attacked Ochoa or whether he saw Aaron accompanying Ochoa when Ochoa arrived at the mobile home park, and his relatively recent recollection of being threatened by Strong. The questions were clearly intended to convince the jury that Valdez was deliberately tailoring his testimony to maximize Strong’s involvement and to help the Sobalvarros, a proposition aided by the evidence of Valdez’s knowledge that the Sobalvarros were gang members. Strong’s attorney continued this strategy with Avery, emphasizing discrepancies between his testimony and Valdez’s and eliciting Avery’s concession that the Sobalvarros frightened him “somewhat.” Strong’s counsel’s closing argument highlighted the significance of this evidence. He attempted to persuade the jury that Valdez and Avery had fabricated testimony to make Strong and Koufos look bad, and that they had done so in part because they feared the Sobalvarros due to their gang affiliation. Under these circumstances, the court’s conclusion that Diego’s counsel should be permitted to ask if Avery had similar reason to fear Strong was correct, and the testimony elicited had substantial significance.
Strong contends that the evidence was irrelevant because the Sobalvarros “had no need to impeach Valdez or Avery.” The evidence was introduced not to impeach those witnesses, but to rehabilitate their credibility with respect to their descriptions of Strong’s actions after Strong’s counsel elicited testimony suggesting they had reason -- fear of gangs or gang members -- to shade their testimony in favor of the Sobalvarros.
Strong contends that the foundation for the question was “weak” and the court “failed to scrutinize the proffer.” Prior to asking the question, Diego’s attorney informed the court at sidebar he had inquired of law enforcement officials and was given reason to believe Strong was a member of the White Power Gang. Counsel for Diego persuaded the court that as Avery indicated he was afraid of the VNE, the jury was entitled to know whether “he would equally be fearful of Strong’s gang affiliations . . . .”
Strong attempts to rely on People v. Bojorquez (2002) 104 Cal.App.4th 335, 342, in which the court stated that evidence the defendant and a witness were members of the same gang, offered to show bias, should generally be excluded where other evidence shows the witness’s association and friendship with the defendant. Strong contends that the present situation was analogous because “[Valdez’s and Avery’s] legitimate fears of testifying against [Strong] or Koufos were not even really disputed.” Strong’s contention is incorrect. Absent any gang evidence, Avery’s reasons for fearing the Sobalvarros and Strong were identical -- all three were large and apparently violent men. But once the evidence of the Sobalvarros’ gang membership was introduced, the balance tipped, indicating Avery might have had greater reason to fear Diego and Aaron and a motive to slant his testimony in their favor. Evidence that Avery believed Strong was also a gang member tended to counter that inference.
Strong’s brief points to the closing argument of Aaron’s counsel, particularly his statement that “somebody that [Strong and Koufos] were aligned with” might have had their own reasons to kill Ochoa, contending this proves “codefendant brought this evidence in as back-door evidence of motive on the part of [Strong] . . . .” First, it should be noted that Aaron did not introduce the evidence; Diego did. Moreover, counsel’s speculation in closing argument as to the motive for Ochoa’s killing did not render the admission of any evidence improper. To the extent Strong’s counsel believed this oblique reference to gang membership was improper, his remedy was to object and request an instruction to the jury to disregard the comment. His failure to properly preserve this issue for appeal, precludes our consideration of it now. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211; accord, Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892; see Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 318; People v. Ochoa (1998) 19 Cal.4th 353, 431.)
Diego’s counsel’s only reference to the gang evidence came when he argued to the jury that Valdez was not particularly fearful of the Sobalvarros, but was instead fearful of “any gang” or “everybody.”
Finally, even were we to conclude that the trial court erred in permitting Avery to mention his belief that Strong belonged to a gang -- and we do not -- Strong has failed to demonstrate prejudice. Of the civilian witnesses, Downing was an admitted gang member, Valdez had a brother who was a gang member, and both he and Avery referred to each other during the trial by nicknames -- “Hon” and “Gadget” -- similar to those used by gang members. In addition, Valdez and Avery admitted being daily marijuana users hoping to “score” on the day of the killing, and Ochoa, the victim, was a drug dealer consistently referred to throughout the trial by his nickname “Risky.” During Strong’s testimony, he used the participants’ monikers when describing their actions and showed familiarity with gang terminology, such as his reference to Valdez and Avery as “little wanna be’s” and “protégés.” It would have been a hopeless task to keep all gang-related references from the jurors or prevent them from speculating about Strong’s status. At the same time, the fact that gang and drug references permeated the case and infected nearly all the principals makes it highly unlikely that the jury was unfairly prejudiced against Strong because of a single reference to the possibility that he was linked to a gang.
2. Voluntary Intoxication Instruction
After the close of evidence, Strong’s counsel asked that the jury be given the “voluntary intoxication instructions.” The court stated that although there had been evidence Strong was “confused” and had a high blood alcohol content at the time of the arrest, “I don’t recall any evidence that your client’s thought process was impaired at the time of the crime” or that the alcohol he allegedly drank “affected his mental state.” Counsel responded that Strong had testified that “there were times when he was . . . in shock or surprised and not sure what to do.” He also argued that Strong’s actions in staying with people who had “commit[ted] this terrible act” and “keep[ing] the car afterwards for approximately ten hours” could give rise to an inference that he was “a person under the influence of alcohol who is not thinking reasonably as a sober person would.” The court rejected that argument: “[According to the Supreme Court,] there has to be specific evidence about the effect to one’s mental state. And I don’t find that here. [In addition,] I find quite a bit of evidence to the contrary through Mr. Strong. [¶] In very detailed testimony he doesn’t even claim to have any great lapses in recollection about the events of that night so I’m going to deny the instruction for that reason.”
Counsel did not specify which instructions. We presume he was referring to CALJIC No. 4.21.1 which informs the jury “[i]f the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not [that] defendant had the required [specific intent] [or] [mental state]” and CALJIC No. 4.21.2, which provides: “In deciding whether a defendant is guilty as an aider and abettor, you may consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state.”
The court permitted counsel to argue the effect of alcohol on “memory, accuracy of recollection and things like that.”
Strong contends the court’s refusal to instruct on voluntary intoxication and its order barring defense counsel from arguing the issue were “serious errors” that “deprived [Strong] of due process of law, a fair trial, the right to present a defense and the right to a jury determination of all issues, notably intent issues.”
Strong’s brief mentions an earlier incident. During examination of the defense expert on the effects of alcohol, Strong’s counsel asked whether he could extrapolate the amount of alcohol a person had consumed based on his blood alcohol level. The prosecutor objected on relevancy grounds. During a bench conference, the court asked for an offer of proof as to what evidence would establish Strong’s body weight and when he had consumed alcohol. Counsel stated: “I think there will be testimony that after leaving the desert[,] Strong went to a liquor store, bought liquor and he consumed it.” Noting that “if he drank everything after the murders and burning,” there would be no relevance, the court sustained the objection subject to the defense’s ability to establish different facts. Counsel did not revisit this issue or ask that the expert be recalled and makes no specific argument concerning the court’s evidentiary ruling in his brief. Accordingly, we do not address this ruling.
This issue is governed by section 22 which provides: “Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act . . . [¶] . . . Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” As explained in People v. Horton, the Legislature amended section 22 in 1981 to abolish the diminished capacity defense. (People v. Horton (1995) 11 Cal.4th 1068, 1118.) However, “[n]otwithstanding the abolition of the diminished capacity defense, evidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue.” (Id. at p. 1119, italics omitted.) Two pertinent areas where intoxication can be used to negate the requisite specific mental state required to establish the crime are (1) where the defendant is charged as an aider and abettor (People v. Mendoza (1998) 18 Cal.4th 1114; see CALJIC No. 4.21.2), and (2) where the defendant is charged with murder (People v. Whitfield (1994) 7 Cal.4th 437, 451; see CALJIC No. 4.21.1).
As explained in People v. Whitfield, “‘Murder is the unlawful killing of a human being . . . with malice aforethought.’ (§ 187, subd. (a).) Malice is express when the defendant harbored an intent unlawfully to kill. (§ 188.) . . . [¶] Malice is implied ‘“when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life . . . [Citations.]”’ (7 Cal.4th at p. 450, quoting People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) Although “implied malice” is not the same as “specific intent,” “the element of implied malice that required that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to [the court’s] definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.” (People v. Whitfield, supra, at p. 450.) Thus, “the phrase ‘when a specific intent crime is charged’ in section 22 includes murder, even where the prosecution relies exclusively upon the theory that malice is implied, rather than express” and section 22 permits “consideration of evidence of voluntary intoxication on the issue whether a defendant harbored malice aforethought, whether the prosecution proceeds on a theory that malice was express or implied.” (Id. at pp. 450, 451.)
“Generally, ‘[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.’” (People v. Tufunga (1999) 21 Cal.4th 935, 944, quoting People v. Memro (1995) 11 Cal.4th 786, 868.) “‘“In evaluating the evidence to determine whether a requested instruction should be given, the trial court should not measure its substantiality by weighing the credibility [of the witnesses] . . . . Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citations.]” [Citations.]’” (People v. Tufunga, supra, at p. 944, quoting People v. Romo (1990) 220 Cal.App.3d 514, 519.)
Where the issue is whether to give voluntary intoxication instructions, the evidentiary prerequisite has been described as “evidence from which a reasonable jury could conclude defendant’s mental capacity was so reduced or impaired as to negate the required criminal intent.” (People v. Marshall (1996) 13 Cal.4th 799, 848.) Evidence that the defendant ingested a significant quantity of alcohol or tested over the limit for operating a motor vehicle alone does not support giving such instructions. (Id. at pp. 847-848.) “[A] defendant is entitled to an instruction on voluntary intoxication ‘only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s “actual formation of specific intent.”’” (People v. Roldan (2005) 35 Cal.4th 646, 715, quoting People v. Williams (1997) 16 Cal.4th 635, 677; see, e.g., People v. Marshall, supra, 13 Cal.4th at pp. 847-848 [evidence that defendant drank “throughout the night,” consuming champagne, brandy and malt liquor and had a .10 percent blood alcohol level three hours after his arrest did not “support a conclusion that at the time of the offenses defendant was unable to premeditate or form an intent to kill” where “evidence of the effect of defendant’s alcohol consumption on his state of mind [was] lacking”]; People v. Williams, supra, 16 Cal.4th at pp. 677-678 [where witness described defendant as “‘probably spaced out’” on the morning of the killings and defendant told police he was “‘doped up’” and “‘smokin’ pretty tough then,’” trial court did not err in refusing voluntary intoxication instruction because there was “no evidence at all that voluntary intoxication had any effect on defendant’s ability to formulate intent”]; People v. Horton, supra, 11 Cal.4th at pp. 1117-1120 [although defendant presented evidence he had been freebasing cocaine prior to crime, because defense failed to introduce evidence of his actual mental state and prosecution’s evidence “support[ed] a finding that defendant was fully aware of his actions and intended their fatal consequences,” trial court properly found evidence insufficient to warrant intoxication instructions].)
We agree with the trial court that there was no evidence Strong’s “thought process was impaired at the time of the crime” or that the alcohol he allegedly drank “affected his mental state.” Strong testified that he could not recall precisely, but that he believed he drank a great deal on the day of the murder, as was his habit. He claimed not to remember anything prior to his arrival at his friends’ mobile home, nor even how he and Koufos were transported. However, his memory of the events leading up to the killing was clear and his account of them detailed. He remembered what Koufos said to him. He remembered specific conversations with Aaron, Valdez and Avery. He remembered specific thoughts that went through his head. He remembered comments made by the Sobalvarros during and after the killing. He remembered the activities that led to the burning of the body in the desert. Indeed, Strong testified at trial that he “remember[ed] everything” after he arrived at the Sobalvarros’ mobile home and had “no problem recollecting what happened.” On this record, there was no basis for the jury to find that Strong’s intake of alcohol affected his mental processes or caused mental impairment sufficient to negate any element of the crime. Accordingly, the trial court properly declined to give voluntary intoxication instructions.
3. Imperfect Self-Defense
After the close of evidence, Strong’s counsel asked the court to give instructions on manslaughter. Counsel argued that the jury could have found Strong guilty of manslaughter based on the evidence that Koufos told Strong that Diego was having a problem with someone who had a gun. The court denied the request, noting that “there is no testimony that [Strong] was having problems with anybody or that when he got [to the Sobalvarros’ mobile home] he was having problems . . . . [¶] As I recall his testimony was quite to the contrary. He said he didn’t do anything.” The jury was given instructions on first and second degree murder, but not manslaughter. Strong contends the court’s refusal of the request “denied [him] due process of law, a fair trial, the right to present a defense, and the right to jury determination on all issues.”
There is no dispute that “in a murder trial, the court . . . must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.]” (People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.) The crime of murder requires proof of malice aforethought. (Id. at p. 460.) Where the defendant kills in the unreasonable but good faith belief he or she was acting in self-defense or in defense of another, malice is nullified because “that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.” (Id. at p. 461, quoting People v. Flannel (1979) 25 Cal.3d 668, 675; accord, People v. Randle (2005) 35 Cal.4th 987, 995-997.) “Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter.” (People v. Rios, supra, 23 Cal.4th at p. 463, fn. 10.) On the other hand, “a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding ‘that the offense was less than that charged,’ is lacking.” (Ibid., quoting People v. Sedeno (1974) 10 Cal.3d 703, 715.) The prosecution is not required to negate imperfect self-defense in its case-in-chief, and “unless the People’s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant’s obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder.” (People v. Rios, supra, at pp. 461-462.)
Nothing in the prosecution’s case here suggested any reason to believe that Strong or the Sobalvarros were acting in self-defense, reasonable or otherwise. The testimony of Valdez and Avery was of an unprovoked attack on an unarmed man, who was immediately rendered unconscious and, within minutes, strangled to death. Thus, the issue is whether the defense presented evidence sufficient to raise a reasonable doubt as to whether Strong acted on an unreasonable belief in the need to defend himself or others. Clearly, it did not. Strong testified that when Koufos told him Diego was “having problems” with someone who had a gun, Strong “didn’t believe [Koufos],” but concluded he was “overreacting” because he “always overreacts.” Consequently, there was no basis for the jury to conclude that Strong unreasonably but sincerely believed he had to act in order to protect himself, Diego or anyone else. Moreover, as the trial court noted, Strong did not describe his reaction to hearing the statement in a way that would support imperfect self-defense. He did not claim, for example, that he rushed to the scene and struck Ochoa in order to defend Diego. He testified he and Koufos had nothing to do with the crime, were surprised by the actions of the Sobalvarros, and were, at most, accessories after the fact in helping dispose of the body.
On appeal, Strong contends that the “jurors here could well find neither appellant, Avery, nor Valdez gave the full story of what happened outside the trailer. . . . [¶] . . . [¶] . . . If a fight broke out and [Strong] believed the victim had a gun, his punch or his ganging-up on the victim could indeed have occurred in an honest, if unreasonable, fear the victim was armed.” Imperfect self-defense cannot be established by surmise and conjecture. As noted above, Strong denied believing Koufos when Koufos said Diego was having problems with someone with a gun, eliminating the key element of the defense. More importantly, Ochoa was not beaten to death, but was deliberately strangled. The jury could not reasonably have concluded from the evidence presented -- a surprise attack, an unconscious victim and death by strangulation -- that any of the assailants were motivated by concerns for the safety of himself or others.
Finally, it is well established that the imperfect self-defense doctrine “may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Even if the jury could somehow have come to the conclusion that “a fight broke out,” the only evidence to suggest who started such fight was Valdez’s and Avery’s testimony that Koufos grabbed Ochoa and Strong struck him. Any physical response by Ochoa thereafter could not have supported invocation of imperfect self-defense by his attackers.
“For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction if the felon killed his pursuer with an actual belief in the need for self-defense.” (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1; accord, People v. Johnston (2003) 113 Cal.App.4th 1299, 1313 [where defendant instigated fight with victim by “creating a loud disturbance at the residence, cursing the mother of the victim and girlfriend and . . . challenging [victim] to come out and fight,” defendant could not claim provocation “when [victim] took him up on the challenge”].)
4. Aider and Abettor Liability
a. Natural and Probable Consequences Doctrine
Strong contends the court had a sua sponte duty to instruct on involuntary manslaughter, based on the “natural and probable consequences doctrine . . . as applied in [People v.] Woods [(1992) 8 Cal.App.4th 1570 (Woods)].” Focusing on the prosecutor’s theory that regardless of whether Strong personally strangled Ochoa, he was culpable as an aider and abettor, Strong asserts that the evidence presented at trial could have supported that he intended to aid and abet an assault. He further asserts that murder “was not the only natural and probable consequence of such an assault . . .,” but that the jury could have found that a reasonable person would have foreseen “one of several forms of involuntary manslaughter.”
Strong’s argument represents a misunderstanding of when the duty to instruct the jury on natural and probable consequences arises and the nature of the instruction that is given. The natural and probable consequences doctrine is at issue where the prosecutor seeks to convict the defendant of one offense (the charged offense) based on his actions in aiding and abetting a different offense (the target or predicate crime). Under the natural and probable consequences doctrine, “the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged.” (People v. Villa (1957) 156 Cal.App.2d 128, 134; accord, People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; see People v. Culuko (2000) 78 Cal.App.4th 307, 322.)
The doctrine does not assist a defendant seeking to mitigate or nullify malice. To the contrary, it “permits an aider and abettor to be found guilty of murder without malice.” (People v. Culuko, supra, 78 Cal.App.4th at p. 322.) Where two or more defendants commit an unlawful act from which death results and only one actually harbored malice, all may nevertheless be found guilty of murder as long as the death was a “natural and probable consequence” of the original act contemplated. (Ibid.) In other words, an aider and abettor can be found guilty of murder not only when he or she is aware that the principal intends to kill the victim, but also when he or she is aware that the principal intends to engage in any other crime the foreseeable result of which might be murder. (People v. Avila (2006) 38 Cal.4th 491, 565.)
In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), the California Supreme Court held that under “quite limited” circumstances, the trial court has a sua sponte duty to give instructions which “identify and describe the target crimes that the defendant might have assisted or encouraged.” (Id. at pp. 254, 269.) The purpose of such instructions is to “eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal” (ibid.), and to prevent jurors from convicting the defendant of the charged offense based on a plan to commit a trivial offense or a non-criminal act. (See id. at p. 268 [“[A] conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.”]; People v. Hickles (1997) 56 Cal.App.4th 1183, 1197 [reversing murder conviction where natural and probable consequence instruction not given and evidence unclear as to whether defendant intended to aid and abet “a murder, an assault with a deadly weapon, a simple assault, or even an argument”].)
The duty under Prettyman “arises only when the prosecution has elected to rely on the ‘natural and probable consequences’ theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory.” (14 Cal.4th at p. 269, italics added and omitted.) Moreover, “[t]he trial court . . . need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider.” (Ibid., italics added and omitted.)
The holding of Prettyman resulted in the promulgation of CALJIC No. 3.02, which provides that in order to find a defendant guilty of a charged crime, the jury must be satisfied beyond a reasonable doubt that: (1) the predicate or target crime was committed; (2) the defendant aided and abetted the target crime; (3) a co-principal in the target crime committed the charged crime; and (4) the charged crime was “a natural and probable consequence of the commission of that target crime[].” CALJIC No. 3.02 had no relevance here and the natural and probable consequences doctrine was not an issue, because the prosecutor did not attempt to obtain a murder verdict by establishing that Strong and his codefendants intended to commit some target offense other than murder. The prosecution’s theory was that (1) Strong and the others entered into a plan to murder Ochoa and (2) regardless of whether he personally strangled Ochoa, Strong aided and abetted the murder by attacking the victim, rendering him unconscious and helpless. Accordingly, there was no cause for the trial court to concern itself or the jury with the natural and probable consequences doctrine or CALJIC No. 3.02.
The jury was given CALJIC 3.01, the basic instruction on aiding and abetting: “A person aids and abets the commission of a crime when he or she: (1) [w]ith knowledge of the unlawful purpose of the perpetrator, and (2) [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) [b]y act or advice aids, promotes, encourages or instigates the commission of the crime.”
b. Lesser Included Offense
Stripped of the irrelevant discussion of the natural and probable consequences doctrine, the issue presented by Strong’s fourth argument is whether there was evidentiary support for giving instructions on involuntary manslaughter. Strong contends the jury could have inferred the victim was “ganged up on and stomped” from Koufos’s comment about a gun, Strong’s injured knuckle, Valdez’s testimony that he heard stomping noises coming from the mobile home after the unconscious Ochoa was carried inside, and the evidence that Ochoa was at the mobile home to transact a drug deal. Strong argues that the jury could have found that he intended only to aid and abet this beating rather than the murder.
As we have said, “‘[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.’” (People v. Tufunga, supra, 21 Cal.4th at p. 944, quoting People v. Memro, supra, 11 Cal.4th at p. 868.) “A trial court need not, even if requested, instruct on a lesser included offense if the evidence is such that the defendant, if guilty at all, is guilty of something beyond the lesser offense.” (5 Witkin and Epstein, Cal. Criminal Law (3d ed. 2007 supp.) Criminal Trial, § 630, p. 342.)
It is true that an unintentional death that results from an assault and battery can be classified as involuntary manslaughter. (People v. Cox (2000) 23 Cal.4th 665, 674; see § 192, subd. (b) [defining involuntary manslaughter as the killing of a human being without malice that occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”].) However, where the evidence at trial clearly shows an intentional killing, no instructions on involuntary manslaughter are required. (People v. Manriquez (2005) 37 Cal.4th 547, 588 [even if defendant fired first shot unintentionally, trial court not required to instruct on involuntary manslaughter where evidence established that defendant continued to fire weapon, inflicting at least one other fatal wound intentionally]; People v. Hendricks (1988) 44 Cal.3d 635, 643 [although defendant denied intent to kill, he shot one victim six times at point-blank range and other victim five times at point-blank range].) “A court is not obligated to instruct sua sponte on involuntary manslaughter as a lesser included offense unless there is substantial evidence, i.e., evidence from which a rational trier of fact could find beyond a reasonable doubt [citation] that the defendant killed his victim ‘in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection;’ [Citation.] . . . ” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, quoting § 192, subd. (b).) Referring to the quantum of evidence needed to support giving involuntary manslaughter instructions, the Supreme Court has said: “[S]peculation is not evidence, less still substantial evidence.” (People v. Berryman, supra, 6 Cal.4th at p. 1081.)
Evidence to support an involuntary manslaughter verdict was completely lacking here. Ochoa did not die from a blow or a beating; he was intentionally strangled. Strong’s theory that the perpetrators intended an assault rather than murder was not raised at trial and is based on sheer speculation. Strong did not acknowledge striking Ochoa, or claim to have intended only to aid his friends in a fight. He denied hitting Ochoa, claiming that Diego alone was responsible for attacking him, dragging him into the mobile home, and strangling him, and accused Valdez and Avery of fabricating their version of events to support the Sobalvarros. He further testified he barely knew the Sobalvarros himself and was a bystander to their attack on Ochoa, having no knowledge it would take place. Thus, when considering the case against Strong, the only question the jury faced was whether he participated in the premeditated killing of Ochoa -- as a perpetrator or aider and abettor -- or did nothing, as he claimed. Under no scenario based on the evidence presented could the jury have found that he aided and abetted a fight leading to an accidental death, but not a murder.
Strong’s counsel argued at one point that if the jury believed Valdez and Avery, the acts they observed constituted an assault only. He did not, however, argue that this meant Ochoa’s death was the result of something other than murder.
Woods, the case on which Strong seeks to rely, supports our conclusion. The appellant in Woods had aided his two codefendants’ assault with a firearm of two women by acting as lookout. Prior to the assault, one codefendant beat up the women’s neighbor. During the assault, one of the women was shot. As the assailants were leaving the women’s apartment, a codefendant shot two more people, bystanders who might have been able to identify the assailants, killing one. When the case went to trial, the prosecutor argued that the appellant was guilty as an aider and abettor of not only the assaults but also of the murder, theorizing that murder was a reasonably foreseeable consequence of the crime of assault with a firearm, even though the man killed was not the focus of the original plan. Rejecting the appellant’s contention that the trial court should have given manslaughter instructions on these facts, the court of appeal held: “[T]he trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense . . . .” (Woods, supra, 8 Cal.App.4th at p. 1593.)
Strong points to his conviction of second degree murder as proof that the jury disbelieved both sides. We disagree. Based on the evidence presented -- in particular, Strong’s testimony that he accompanied Koufos to the mobile home park primarily to visit his friends -- the jury reasonably could have concluded that although Strong was aware of the plan to murder Ochoa, he did not decide to participate until the last minute. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 532, quoting People v. Eskew (1962) 206 Cal.App.2d 205, 207 [“Aiding and abetting may be committed ‘on the spur of the moment,’ that is as instantaneously as the criminal act itself.”].) This would have negated premeditation and resulted in finding Strong not guilty of first degree murder. Alternatively, as stated in People v. Powell (1949) 34 Cal.2d 196, 205, “[i]t cannot be doubted that a trier of fact has and often exercises the power, because of obvious extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree or class of crime than that shown by the evidence.” Inconsistent verdicts generally reflect “not . . . the confusion but the mercy of the jury.” (People v. Amick (1942) 20 Cal.2d 247, 252, [italics omitted], quoting People v. Horowitz (1933) 131 Cal.App.Supp. 791, 793.) “An appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty . . . according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (People v. Powell, supra, 34 Cal.2d at p. 206.) The difference in the verdicts between Strong and the Sobalvarros was the product of either a conclusion that Strong did not premeditate or a decision to show mercy, not of the jury’s disbelief of Valdez’s and Avery’s version of events.
5. Accomplice Testimony
Strong contends the court should have given, sua sponte, the instructions cautioning the jury regarding the believability of accomplice testimony.
See, e.g., CALJIC No. 3.11 [“You cannot find a defendant guilty based upon [the testimony of an accomplice] [or] [the testimony by a codefendant that incriminates the defendant] unless that testimony is corroborated by other evidence which tends to connect [the] [that] defendant with the commission of the offense.”]; CALJIC No. 3.18 [“To the extent that [an accomplice] [or] [a codefendant] gives testimony that tends to incriminate [the] [a] [another] defendant, it should be viewed with caution . . . You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.”].)
“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. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.]” (People v. Horton, supra, 11 Cal.4th at p. 1114.)
An accomplice is defined as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) “In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include ‘[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .’ [Citations.] A mere accessory, however, is not liable to prosecution for the identical offense, and therefore is not an accomplice.” (People v. Horton, supra, 11 Cal.4th at pp. 1113-1114.)
In People v. Horton, the Supreme Court found no error in failing to give accomplice testimony instructions where the day before the victim was murdered, the witness had agreed to drive the defendant to the victim’s apartment as part of an unconsummated plan to rob the victim of drugs. The court concluded the plan “did not constitute evidence of [the witness’s] having planned, encouraged, or instigated the commission of a robbery or any other crime committed by defendant at a future time.” (People v. Horton, supra, 11 Cal.4th at p. 1115.) The witness’s apparent objective “to obtain more drugs on the evening [before the murder]” was thwarted when that plan was aborted. (Ibid.) “His knowledge that a crime might be committed by defendant in the future did not amount to aiding and abetting the commission of that prospective crime. [Citations.] Although the evidence of his conduct subsequent to the commission of the crimes might well have implicated [the witness] as an accessory, his status as accessory would not subject him to accomplice liability.” (Id. at pp. 1115-1116.)
Here, there was simply no evidence Valdez or Avery “planned, encouraged, or instigated” the killing of Ochoa. They testified they were surprised when Strong and Koufos attacked Ochoa and dragged him into the Sobalvarros’ motor home. They explained they did not leave or attempt to notify authorities because they feared they would become targets themselves. They accompanied the Sobalvarros after the fact due to an ongoing fear for their lives. When questioned by authorities, they gave consistent stories after Valdez’s initial attempt to deny knowledge. One of the investigators testified that Avery and Valdez were never considered suspects.
The defense did not contradict any of this evidence or introduce evidence supporting an alternative version of the facts that would have made these witnesses culpable. Strong, in his testimony, attempted to equate his position with theirs, but did not accuse them of involvement in the killing. Under these facts, there was no basis for giving accomplice testimony instructions.
6. CALJIC No. 2.11.5
Strong contends the court erred in giving CALJIC No. 2.11.5, which provides: “[T]here has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial.” (Italics omitted.) Strong contends that giving this instruction was improper, again based on the testimony of Valdez and Avery.
The purpose of CALJIC No. 2.11.5 “‘“is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators.”’” (People v. Lawley (2002) 27 Cal.4th 102, 162, quoting People v. Cain (1995) 10 Cal.4th 1, 34-35.) “‘CALJIC No. 2.11.5 . . . should not be given when a nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witness’s credibility.’” (People v. Williams, supra, 16 Cal.4th at p. 226, quoting People v. Rankin (1992) 9 Cal.App.4th 430, 437.) Instead, the instruction should be omitted or modified to clarify it does not apply to testifying participants. (People v. Lawley, supra, 27 Cal.4th at pp. 162-163; see People v. Cox (1991) 53 Cal.3d 618, 667, fn. 13.)
Respondent contends that the trial court was not obliged to modify CALJIC No. 2.11.5 because Valdez and Avery were not accomplices. Whether a witness “‘was or may have been involved in the crime’ for the purposes of CALJIC No. 2.11.5 is a ‘separate issue’ [citation] from the question whether either was an accomplice.” (People v. Williams, supra, 16 Cal.4th at p. 226, quoting People v. Cox, supra, 53 Cal.3d at p. 667.) Even where it is clear that the witness was not an accomplice, he or she may be a “‘participant’” or have some involvement, for purposes of CALJIC No. 2.11.5. (People v. Williams, supra, 16 Cal.4th at p. 226, quoting People v. Cox, supra, 53 Cal.3d at p. 668 [although no evidence suggested witnesses were accomplices, whether they were or may have been “‘involved in the crime’ for the purposes of CALJIC No. 2.11.5 [was] a ‘separate issue’”]; see § 32 [defining accessory after the fact].)
Strong has not indicated why he believes either Valdez or Avery should be considered “participants” for purposes of CALJIC No. 2.11.5. The evidence indicated they were coerced into providing limited assistance after the crime was committed through fear for their lives. Moreover, assuming arguendo, the trial court should have given a modified version of CALJIC No. 2.11.5, explaining to the jury that it did not apply to Valdez and Avery, any error was harmless. As the Supreme Court explained in People v. Price (1991) 1 Cal.4th 324, “‘[i]n determining whether an instruction interferes with the jury’s consideration of evidence presented at trial, we must determine ‘what a reasonable juror could have understood the charge as meaning.’ [Citation.] While the initial focus is on the specific instruction challenged [citation], we must also review the instructions as a whole to see if the entire charge delivered a correct interpretation of law. [Citation.]’” (Id. at p. 446, quoting People v. Garrison (1989) 47 Cal.3d 746, 780.) “When the instruction is given with the full panoply of witness credibility and accomplice instructions . . ., [jurors] will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant’s guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses.” (People v. Price, supra, 1 Cal.4th at p. 446.)
While the court did not give accomplice instructions, it did give general witness credibility instructions, informed the jury that Valdez testified pursuant to use immunity, and told them what that could mean with respect to future prosecution. Under these circumstances, “‘the entire charge delivered a correct interpretation of law’” (People v. Price, supra, 1 Cal.4th at p. 446), and giving CALJIC No. 2.11.5 could not have interfered with the jury’s proper consideration of the evidence or the testimony of Valdez or Avery.
The court explained that use immunity “prevents the prosecution from using a witness’s statements against him in any future prosecutions, however it does not preclude the Prosecution from prosecuting the witness for any crimes, nor does it immunize the witness from prosecution for perjury.” The jury was also given CALJIC No. 2.20: “In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including . . .; the existence or non-existence of any bias, interest or other motive.”
7. CALJIC No. 2.21.2
Strong contends the trial court should not have given CALJIC No. 2.21.2, which provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” Strong contends the instruction “permitted jurors to resolve dispositive credibility questions as to impeached prosecution witnesses, as well as appellant’s testimony, by a preponderance standard” and that “[d]ispositive credibility questions must be resolved beyond a reasonable doubt, not under a probability standard more suited to foundational evidentiary issues . . . .” As Strong concedes, faced with similar arguments, the Supreme Court has repeatedly approved the language of this instruction where the jury was properly instructed as to the prosecution’s burden of proof and reasonable doubt. (People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Hillhouse (2002) 27 Cal.4th 469, 493; People v. Beardslee (1991) 53 Cal.3d 68, 94-95.) We are bound by these clear holdings.
The jury was given the usual instruction on reasonable doubt: “[A] defendant in a criminal action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt whether his guilt is satisfactorily shown he[is] entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.”
B. Aaron’s Appeal
1. Sufficiency of Evidence
Aaron contends the evidence was insufficient as a matter of law to sustain his conviction for first degree murder. We disagree.
When determining whether the evidence is sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘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 beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) “In making this assessment the court looks to the whole record, not just the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts.” (People v. Holt, supra, at p. 667.) “We draw all reasonable inferences in support of the judgment. [Citations.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility. [Citation.] Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime.” (People v. Nguyen, supra, 21 Cal.App.4th at p. 530.) “[T]he law imposes criminal liability upon all persons ‘concerned’ in the commission of a crime.” (Id. at p. 529, quoting § 31.) “A person is ‘concerned’ and hence guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures.” (Ibid.; see, e.g., People v. Cayer (1951) 102 Cal.App.2d 643, 650 [defendant aided and abetted fight that led to victim’s death by, among other things, threatening bystanders to prevent them from stepping in to stop it].)
Aaron summarizes the evidence presented to support his guilt as follows: “[Aaron] knew the victim and had purchased marijuana from him in the past. [Citation.] He called the victim, and presumably arranged to purchase more marijuana from him. [Citation.] He and the victim were together at 8:00 p.m. [Citation.] Thereafter, [Aaron] was seen asleep in his living room. [Citation.] Koufos and Strong attacked the victim outside, and carried him into the mobile home. [Citation.] Strong kicked the victim so hard he broke the victim’s femur. [Citation.] Someone strangled the victim, presumably with an electrical cord. [Citation.] [Aaron] thereafter assisted in efforts to dispose of the body.” Aaron contends that this evidence supports that he may have been present and failed to aid the victim, but does not support guilt as either the perpetrator or an aider and abettor.
Aaron’s characterization omits significant portions of the evidence and distorts the meaning of others. The circumstances surrounding the attack on Ochoa permitted the jury to conclude that the murder was not an impulsive act, but the execution of a plan. As Strong and Koufos left Tonya Downing’s apartment to go to the mobile home park, Strong said they were going to “handle something.” When Koufos abruptly grabbed the victim, Strong hit him immediately, without any instruction from Koufos or discussion between them. Immediately thereafter, Strong and Koufos dragged the unconscious man into the Sobalvarros’ mobile home, with no perceptible concern about the Sobalvarros’ reaction. Once inside, Ochoa was killed within minutes. Strong testified he knew where both Sobalvarros could be found after the killing because “from being over there” he had “hear[d] their conversations” about “where they all planned to go after . . . .” Although he hastily attempted to convince the jury that he was not referring to a plan to commit murder, his assurance was not one the jury was required to credit.
No one described either of the Sobalvarros as upset or confused in the aftermath of the murder.
The inference that Aaron knew of and participated in the plan was supported by other evidence. First, Aaron was instrumental in bringing Ochoa to the scene of the ambush. Nicole Dominguez testified that Aaron called Ochoa and set up a drug deal earlier in the day. This was corroborated by Valdez’s statement to investigators that he saw Aaron and Ochoa arrive together in Ochoa’s car. There was evidence that Aaron lent -- at the least -- encouragement to Diego as the latter was carrying out the murder. Strong testified that as Diego was brutally strangling Ochoa, Ochoa called out Aaron’s nickname (“Malo”) and Aaron said “Fuck him. Fuck that guy.” In addition, either while the attack was occurring or just after, Strong observed Aaron move Ochoa’s car, so that it would be in a more concealed position when the body was carried out. Aaron also angrily confronted Strong when Strong sent Demetrius away, creating an inference that he was concerned about controlling potential witnesses. Finally, immediately following Ochoa’s killing, it was Aaron who emerged to instruct Valdez and Avery to “hang tight,” who informed them their cooperation was expected, and who, along with Diego, gave Avery instructions during the hours spent disposing of Ochoa’s body. On this record, the jury could reasonably conclude that Aaron was part of a plan to lure Ochoa to the mobile home, where he would be murdered and his body thereafter disposed of. The evidence was adequate to support the jury’s verdict.
2. Evidence of Third Party Culpability
Aaron’s counsel sought to question Nicole Dominguez concerning telephone calls other than Aaron’s that Ochoa received on August 29. According to the offer of proof, one or more of the callers threatened to “fuck [Ochoa] up” and Dominguez knew the first names and general description of persons who had called and threatened Ochoa on that day and in the recent past. Because nothing tied the caller or callers to the murder, the court disallowed the line of questioning.
“Evidence that a third person actually committed a crime for which the defendant has been charged is relevant but, like all evidence, subject to exclusion at the court’s discretion under Evidence Code section 352 if its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion.” (People v. Yeoman (2003) 31 Cal.4th 93, 140.) “To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of the defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 834.) However, “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt[;] there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Id. at p. 833.) Where there is no evidence “beyond mere speculation” that the third person was present with the victim on the day in question “or had been shown to be connected to the crime in some other way,” the trial court acts within its discretion in excluding the evidence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1137.)
According to the evidence, Aaron, also known as “Malo,” called Ochoa on the day of the attack. Thereafter, Ochoa left his apartment, saying he was going to see “Malo.” When he arrived, Ochoa was dragged or carried into the Sobalvarros’ mobile home where he was murdered by one or more of the codefendants. The physical evidence -- the blood and green cord found inside the mobile home -- corroborated the witnesses’ testimony that this was the scene of Ochoa’s death. There was no evidence to suggest that any person other than appellants, Koufos, Demetrius, Valdez and Avery were at the location when the crime occurred. There was no dispute that appellants and Koufos were inside the mobile home when Ochoa was strangled and that Strong, Koufos and the Sobalvarros, along with Valdez and Avery, disposed of the body by taking it to the desert and setting it on fire. Accordingly, there was no evidence, direct or circumstantial, to support that someone other than one or more of these persons committed the crime. The trial court correctly concluded there was no basis to present evidence to the jury of other enemies Ochoa may have had or threats he may have received.
C. Diego’s Appeal
Diego raises a single issue in his brief, contending the court erred in permitting Downing to testify concerning Strong’s out-of-court statement made to her on the day after the killing that “[he] and Diego might have killed somebody.”
The issue whether to admit Downing’s testimony concerning this statement came up twice. Prior to trial, the prosecution filed a motion requesting its admission. The moving papers contended that the statement was sufficiently trustworthy to be admissible even if Strong did not testify and the other defendants had no opportunity to cross-examine him concerning the statement. The court denied the motion.
After Strong testified, the prosecution renewed the motion, contending that as Strong had testified, there were no “Aranda-Bruton issues.” The court agreed: “[T]raditionally it’s always been that if a witness is here for confrontation you can impeach him and you’re given confrontation and obviously the witness that gets up and [r]efers to the prior consistent statement is also subject to confrontation.” Diego’s counsel objected “for the record” without specifying any basis for the objection.
Later, Strong’s counsel objected on the ground it was “inappropriate rebuttal” and questioned its reliability due to Downing’s admitted methamphetamine abuse.
Bruton v. U.S. (1968) 391 U.S. 123 and its progeny held that if the extrajudicial statement of a nontestifying codefendant is to be introduced at a joint trial, either the statement must be redacted to avoid implicating the defendant or severance must be granted. (Id. at pp. 135-136; see Richardson v. Marsh (1987) 481 U.S. 200, 208-210; Nelson v. O’Neil (1971) 402 U.S. 622, 629-630.) In People v. Aranda (1965) 63 Cal.2d 518, the California Supreme Court held that California law required severance whenever a codefendant’s extrajudicial statement implicating the defendant was to be introduced, barring effective redaction, regardless of whether the codefendant testified at trial. (Id. at pp. 530-531.) However, “since the adoption by the voters in June 1982 of Proposition 8, with its preclusion of state constitutional exclusionary rules broader than those mandated by the federal Constitution (see Cal. Const., art. I, § 28, subd. (d)), the Aranda rule is coextensive with that of Bruton.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43, citing People v. Boyd (1990) 222 Cal.App.3d 541, 562.)
Our Supreme Court has held on several occasions that the Bruton/Aranda rule is satisfied, and the defendant’s Sixth Amendment confrontation rights vindicated, as long as the defendant whose extrajudicial statement is at issue, takes the stand and testifies. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 43; People v. Hoyos (2007) 41 Cal.4th 872, 896.) Accordingly, because Strong testified, there is no basis for Diego’s contention of constitutional error, as trial counsel tacitly conceded when he objected “for the record” and made no argument at the second hearing on admissibility.
In his opening brief, Diego asserts that because Strong denied making the statement to Downing, his counsel was unable to cross-examine Strong about that statement or subject it to “rigorous testing.” Confronted with the numerous cases cited in respondent’s brief in which appellate courts upheld admission of out-of-court statements under similar circumstances, Diego contends in his reply brief that the extrajudicial statements of a testifying codefendant should not be admitted unless he or she testifies favorably to the objecting defendant. He purports to derive this rule from Nelson v. O’Neil, in which the United States Supreme Court stated that “where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” (Nelson v. O’Neil, supra, 402 U.S. at pp. 629-630.)
See, e.g., People v. Pitts (1990) 223 Cal.App.3d 606, 856 [“A witness can be cross-examined regarding a statement not affirmed by him.”]; People v. Becerra (1987) 188 Cal.App.3d 772, 776-777 [no Bruton/Aranda error where codefendant testified and denied having confessed or incriminated defendant]; People v. Brown (1978) 79 Cal.App.3d 649, 657 [no Bruton/Aranda error where codefendant, whose extrajudicial statement named defendant as accomplice, testified and denied having made the statement]; People v. Jenkins (1973) 34 Cal.App.3d 893, 897-898 [no Bruton/Aranda error as long as codefendant/declarant testifies and “either denies, acknowledges or qualifies the truth of the prior statement”].
Diego cites no authority to support his interpretation of the Nelson v. O’Neil holding, and we are aware of none. To the contrary, as the reply brief notes, in People v. Easley (1983) 34 Cal.3d 858, the California Supreme Court upheld under the Nelson v. O’Neil rule admission of out-of-court statements by a co-conspirator that implicated the defendant, where the co-conspirator testified unfavorably to the defendant at trial. (Id. at pp. 872-873; see also U.S. v. DeLaMotte (2d Cir. 1970) 434 F.2d 289, 294 [not Bruton error to admit evidence of codefendant’s out-of-court statements to detectives, where codefendant, after being convicted in separate trial, appeared and testified unfavorably to appellant].) The court in People v. Easley concluded that because the co-conspirator testified at trial and was cross-examined at length, the defendant’s right of confrontation was not violated. (34 Cal.3d at p. 873.) Here, Strong took the stand, purported to clearly recollect the events on the day of the murder, and was subject to extensive cross-examination by his codefendants’ counsel. The fact that he denied making the statement to Downing and testified unfavorably to Diego did not preclude effective cross-examination or cause admission of his statement to interfere with Diego’s right of confrontation.
Diego cites cases in which, as it happened, the testimony of the codefendant whose out-of-court statements were admitted was favorable to the appellant, or at least neutral. (See, e.g., People v. Becerra, supra, 188 Cal.App.3d 772; People v. Brown, supra, 79 Cal.App.3d 649; People v. Jenkins, supra, 34 Cal.App.3d 893.) As the courts in these cases were not confronted with the issue raised by Diego and did not discuss it, they are not authority for the proposition that a codefendant’s testimony must be favorable in order for an extrajudicial statement to be admitted.
In his reply brief, Diego contends for the first time that admission of the statement was hearsay as to him and should not have been admitted without a limiting instruction. Because this contention is not found in his opening brief, he has forfeited it. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, pp. 627-629.) Moreover, a verdict or judgment cannot be set aside due to the erroneous admission of evidence in the absence of any indication on the record that the defendant raised a specific objection to the evidence or moved to strike. (Evid. Code § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-22.) At trial, Diego’s counsel did not raise a hearsay or any other specific objection to the evidence, and did not seek a limiting instruction. Accordingly, he cannot raise this issue now.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.