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People v. Tinoco

California Court of Appeals, Second District, Fifth Division
Sep 16, 2008
No. B199698 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. TA073974 Robert J. Perry, Judge.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Shawn McGahey Webb and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

A jury convicted defendant and appellant Omar Tinoco of one count of special-circumstance first degree murder (Pen. Code, §§ 187, subd. (a); 190.2, subds. (a)(3), (a)(10), (a)(22)); one count of second degree murder; one count of conspiracy to commit torture (§ 182, subd. (a)(1)); and one count of torture (§ 206). The jury acquitted defendant of one count of attempted murder. After a penalty phase trial, the jury recommended that defendant be sentenced to prison for life without the possibility of parole. The trial court sentenced defendant to four consecutive life sentences, including life without the possibility of parole on his first degree murder conviction. For the reasons stated below, we affirm.

All statutory references are to the Penal Code.

BACKGROUND

A. Summary of the Facts

Defendant was a member of the South Los street gang and was known by the gang moniker Gadget. This case involves three distinct crimes: (1) the murder of Ronald Tyson, a witness in a homicide case against one of defendant’s fellow gang members; (2) the conspiracy to torture and the torture of Ahmad Khrino, for which defendant was recruited and paid by Atbeisat Mohamedith to punish Mohamedith’s ex-wife and her new husband; and (3) the murder of Atbeisat Mohamedith. We provide a brief overview of the facts in this Part A. In Parts B and C post we set forth the facts witness by witness, due to the number of people and crimes involved.

1. Murder of Ronald Tyson

On September 10, 2003, a South Los gang member named Chindio Medrano, also known as Crazy, was arrested for the murder of Mario Williams. Williams was thought to be an associate of the 118th Street East Coast Crips street gang. Ronald Tyson, whose nickname was Green Eyes because of his distinctive green eyes, witnessed the murder of Mario Williams. On September 20, defendant and three other men—Jose Rodriguez, also known as Flaco; Jose’s brother, Victor Rodriguez; and a man referred to only as Toker—picked Tyson up in a black Volkswagen Jetta for the ostensible purpose of dissuading him from testifying against Chindio Medrano. When Tyson refused to be dissuaded, defendant shot him four times, killing him. Defendant later spoke to Chindio Medrano on the phone and told him that he and Jose Rodriguez had killed Green Eyes.

2. Conspiracy to Torture and Torture of Ahmed Khrino

In mid-2003, defendant’s then-girlfriend, Gicela Carmen Prieto (known as Carmen), owned a home at 142 West 111th Street in Los Angeles. The lot had two houses, referred to as the front house and the back house. Carmen and her two children resided in the front house. Staying in the back house were defendant; Jose Rodriguez; Jorge Delgado; and by September 2003, David Cossio, also known as Snappy. There was evidence that defendant and Jose Rodriguez dealt drugs from the back house. Jose Rodriguez’s girlfriend at the time was Araseli Medina.

Among the people who frequented Carmen Prieto’s house was Atbeisat Mohamedith, a Jordanian who went by the name of Omar. Mohamedith was divorced from his wife, Rola Sharab, in 2000. Sharab subsequently married another Jordanian, Ahmed Khrino. After Sharab married Khrino, Mohamedith repeatedly threatened them, vowing to make them suffer all their lives. Khrino and Sharab lived in San Leandro, California, approximately 360 miles north of Los Angeles.

On May 1, 2003, defendant and an unknown accomplice laid in wait for Khrino outside of his apartment building in San Leandro and attacked him with sticks that resembled policemen’s batons. Before defendant struck Khrino, Khrino asked defendant what was going on. Defendant replied, “You know what’s going on.” Khrino was repeatedly struck on the head by defendant and his accomplice. Khrino was severely injured.

In August 2003, Mohamedith offered defendant, Jose Rodriguez and others $2,000 each to “get” Khrino and, in effect, emasculate him. Shortly thereafter, Jose Rodriguez, Jorge Delgado, Carmen Prieto and Araseli Medina went to San Leandro. They attempted to follow Khrino to work but lost him; they later tried but failed to lure Khrino from his apartment, with Prieto masquerading as a delivery woman to induce Khrino to open his door. They returned to Los Angeles. Mohamedith was upset that the plan had failed, and later offered $1,000 for someone to throw acid in his ex-wife’s face.

3. Murder of Atbeisat Mohamedith

On the night of September 22, 2003, Mohamedith’s van was parked in front of 157 West 111th Street, a few houses away from Carmen Prieto’s house. Defendant and Cossio were seen looking in the back of Mohamedith’s van, which was filled with boxes. Defendant apparently was looking for “smelling oils.” Shortly thereafter, seven to ten shots were fired. Mohamedith lay dead in the street next to his van. A few moments later, defendant and Cossio ran into the backyard of Prieto’s house. Cossio was carrying an AK-47. Defendant told Carmen not to come out of the house; he and Cossio then fled by jumping over the back fence. Defendant later called Bernice Garcia Sanchez, a former girlfriend and the mother of defendant’s child, and told her he had shot someone in front of his house. In addition, shell casings found at the scene of Mohamedith’s murder matched shell casings found at the scene of Tyson’s murder.

B. The Prosecution Case

1. Lawrence Crain

On September 20, 2003, Melvin Gill came to visit Lawrence Crain at his house on 109th Place in south Los Angeles during the day. Crain saw a black, newer model Volkswagen come down his street; he identified a photograph of the Volkswagen. He saw it pass by his house three times before it parked in the alley. After the car stopped, a tall, thin Hispanic male wearing jeans and a white t-shirt got out and stood by the driver’s side back tire of the car. An African-American male that Crain knew from the neighborhood got out of the back passenger side of the car. Before the African-American man straightened up, the Hispanic male shot him in the head, then shot him again a couple of times. After the first shot, the African-American man fell to the ground; the Hispanic man stepped toward him and shot him again as he lay on the ground. The Hispanic man got back in the car. As the car drove away, the Hispanic man shot the African-American man again in the back. Crain identified defendant from a photo lineup and in open court, stating both times that defendant “look[ed] like” the person who shot the African-American male. Crain also identified a photograph of the victim.

2. Melvin Gill

In September 2003, Melvin Gill went to visit Crain at 10:00 or 11:00 a.m. He saw a black Volkswagen with tinted windows driving slowly down the street. He identified a photograph of the Volkswagen. The Volkswagen stopped in an alleyway 35 to 40 yards away. A young African-American man approximately six feet tall stepped out of the rear driver’s side door. Seconds later, another person stepped out of the same door wearing a hat. The second person immediately stretched out his arm and fired two or three shots, from a distance of eight to 10 inches, into the head of the African-American man. The second person was Latino. The African-American man immediately fell face down on the ground. The Latino man got back in the car and fired an additional three shots into the back of the African-American man as the car was pulling away. Gill identified defendant in court as the shooter.

3. Roger Steven Zubia

Roger Zubia knew a person by the nickname Green Eyes (Ronald Tyson) for a couple of years. Green Eyes was murdered on September 20, 2003. Zubia had been with Green Eyes earlier that day at an apartment complex across from where Green Eyes lived on Avalon Boulevard. Also present was Esteban Lopez, who lived in the complex. They were hanging out for two or three hours that morning when a black Volkswagen Jetta pulled up to where they were standing. Two males got out of the car. One was bald and Hispanic; the second was Hispanic and wearing glasses. The bald male spoke to Green Eyes, offering to give him $5 and buy him some beer if he would show the man where someone lived. Green Eyes said he knew where the person lived. Green Eyes refused several times, but eventually agreed. The man nudged Green Eyes out of the gate. Green Eyes got in the back seat of the car, as did the bald man. The man with glasses got in the driver’s seat. The car drove north on Avalon. Zubia found out several hours later that Green Eyes had been shot. The next day or a few days later, Zubia saw the bald man again in the same apartment complex and recognized him. Zubia identified defendant from a photo lineup and in court as the bald man.

4. Cipriano Patino

Cipriano Patino knew Carmen Prieto and that she lived on 111th Street. He had met Flaco (Jose Rodriguez). He did not know Snappy. He had heard of defendant because he used to go to Carmen’s house to buy drugs, but he did not know defendant. One time when he was at Carmen’s house to buy drugs in September 2003, they told him to stay in the house. It was late afternoon. He was in the house 30 to 45 minutes. When he went outside, there were many police officers. He was interviewed by police later. He lied to the police because he was afraid. He falsely told police that he had seen a short guy holding a gun. Most of Patino’s statements regarding the Mohamedith murder were presented to the jury through the testimony of Detective Hahn. (See post.)

5. Detective Linda Compton

Detective Linda Compton of the Los Angeles Police Department (LAPD) was the investigating detective assigned to the homicide of Mario Williams. Williams was killed at the corner of Avalon and Imperial. Tyson was listed as a witness in the case. Tyson was killed on September 20, 2003, within a month of the next court date in the Williams case. Chindio Medrano had been arrested in connection with the Williams homicide on September 10, 2003. Medrano eventually pleaded guilty to manslaughter. He was no longer in custody at the time of the trial in this case. Tyson had told Detective Compton that he had not seen the shooting, but he was present and was approximately six feet away from Williams when Williams was killed. Williams was an associate of the 118th Street East Coast Crips street gang. Detective Compton never determined whether Tyson was associated with the gang.

6. Maria Cruz

Maria Cruz cohabited with Chindio Medrano and had two children with him. Medrano was known by the gang monikers Crazy and Gumecido. After Medrano was arrested in September 2003, Cruz helped him make a conference call to Carmen Prieto’s house, where they spoke with defendant, a friend of Medrano’s. Defendant said that he and Jose Rodriguez had gone to look for a guy named Green Eyes and had killed him.

7. Victor Rodriguez

Victor Rodriguez was the younger brother of Jose Rodriguez. In September 2003, Victor went with his brother in a black Jetta. They picked up two males, both Hispanic. Both got in the back seat. Jose Rodriguez was driving. They then went and picked up a Black man, who also sat in the back seat, in the middle. After that, they drove around and eventually stopped. “Somebody” got out of the back seat and Victor heard a loud bang. The person got out on the driver’s side. Victor did not look back. After the bang, someone got back in the car.

Victor was interviewed by police in October 2003. Victor told police that after the Black male got out of the car, he heard gunshots. The car was stopped at a dead end street. Including Victor and Jose, there were five people in the car at the time of the shooting; Victor had never seen any of the other three before. Victor had gone with Jose because Jose wanted a friend of Victor’s to install or fix a radio in the car. Victor had not known what was going to happen that day. Victor had identified a photo of defendant from a photo lineup, wrote “shooter” by the photograph and signed the card.

8. Araseli Medina

Araseli Medina was the former girlfriend of Jose Rodriguez. Jose told her he used to belong to the Watts Mafia street gang. Medina owned a black 2000 Volkswagen Jetta. In September 2003, Jose borrowed the Jetta to wash it, but was gone for about four hours. It was about noon when he left; he was with his brother, Victor. When he returned he seemed a bit nervous and was biting his nails. Jose’s friends called him Flaco. He was living near 111th and Main at the time with Carmen, George and defendant. There were two houses on the lot; Jose lived in the back house with defendant and George. “George” was Jorge Delgado.

Medina sometimes saw a Muslim person who called himself Omar at Jose’s house. Omar was in his late 30s or early 40s. Medina identified a photo of Atbeisat Mohamedith as Omar. Medina overheard a conversation in which Omar said he would pay George, Jose, defendant, and possibly Carmen to “get” a person because Omar’s wife was cheating on him. He was going to pay $2,000 per person. At one point, they talked about cutting off the person’s penis. At another point, shortly after Medina’s birthday in early September 2003, Omar was upset because they had not harmed the person they were supposed to harm. He said this to Jose, Carmen and George. Omar drove a green or blue GMC Astrovan.

Medina knew a person named Snappy who started showing up at Jose’s house in September. She saw a rifle and a handgun at Jose’s house. Medina identified a photograph of defendant holding a firearm similar to one she saw in the house.

In mid-2003, Carmen drove a blue Toyota Camry. Sometime prior to Medina’s birthday in early September, she took a trip in Carmen’s car with Jose, George and Carmen. They went to Oakland, California, with Jose driving. When they arrived, they parked in a parking lot across from some apartments for an hour or so. Then, a man came out of the apartments, entered his car and drove away. Medina and her companions followed the car toward downtown Oakland for about 20 minutes before they lost sight of the car. They drove back home the same day. Medina did not know the purpose of the Oakland trip; Jose had told her they were going to Oakland to celebrate her birthday. Medina identified a photograph of Crazy (Chindio Medrano) as a person who associated with Jose, defendant and George.

9. Dr. Raffi Djabourian

Dr. Raffi Djabourian was a forensic pathologist with the Los Angeles County Department of the Coroner. He conducted the autopsy of Ronald Tyson. Tyson died of multiple gunshot wounds; he was shot four times. Three of the wounds were fatal. The first wound was to the left side of Tyson’s head toward the back. A medium caliber bullet, such as a nine-millimeter or .32-caliber bullet, was recovered from Tyson’s brain. The second wound was to the left cheek near the nose; the bullet exited the back left of Tyson’s neck. Stippling, caused by unburned gunpowder residue, was present on Tyson’s left cheek, indicating the shot was fired from less than two feet away. The first and second wounds each caused sufficient damage to kill. The third wound was to Tyson’s back, with the bullet exiting the front of the right shoulder in an upward trajectory, consistent with a shot fired into the back of a person lying face down from the foot end of the body. The fourth wound was to Tyson’s left middle finger.

10. Detective Roger Allen

In 2003, Detective Roger Allen was an LAPD homicide detective assigned to the Tyson killing. He and a team of eight detectives conducted a search of both houses at 142 West 111th Street in October 2003. In the front house, they found a loaded shotgun near the entrance; a small replica baseball bat; ammunition, including pistol rounds of various types (nine millimeter and .25, .32, .38 and .45 caliber), 7.62-millimeter Wolf rounds (for an AK-47 or similar weapon), .410-bore and 12-gauge shotgun rounds, and .223-caliber rounds (for an M16); a substance resembling methamphetamine; various bills in the name of Gicela Prieto; identification in defendant’s name; and correspondence addressed to both Prieto and defendant. They also found a letter from defendant to Prieto and a photo album. The detectives did not find any weapons in the back house.

11. Gicela Carmen Prieto

Gicela Carmen Prieto’s friends called her Carmen. In August 2003, Prieto owned a blue Toyota Camry with the license plate G-I-C-E-L-A-S and a Wonder Woman sticker on the back window. Prieto lived in the front house at 142 West 111th Street with her two children; residing in the back house were Jose Rodriguez, George Lozano and Jorge Cossio. She was dating defendant at the time, who was at the house to take care of Prieto and “her assets.” Some of defendant’s property was at the house. She referred to defendant as Gadget. She knew Jose Rodriguez as Flaco. She knew Cossio as Snappy.

Prieto knew an Arab man who called himself Omar. She met him in August 2003. Prieto pleaded guilty to conspiring with Omar to commit an assault on Khrino in Northern California. Omar “didn’t want [Khrino] to be able to function in bed.” Prieto went to Northern California with George Delgado, Jose Rodriguez and Araseli Medina. They took turns driving. They arrived at dawn, and attempted to follow Khrino to work, but they lost him. They parked in the parking lot of a shopping center. Later, with the small replica baseball bat recovered from Prieto’s house, they went inside the apartment complex where Khrino lived. They knocked on the door of Khrino’s apartment; Prieto told Khrino they were delivering roses. Jorge Delgado and Jose Rodriguez stood off to the sides of the door. Khrino said that he hadn’t ordered anything and refused to open the door. They returned to Los Angeles.

Prieto lied when she spoke to Detective Mark Hahn. Omar used to call her at work to ask, “What’s going on?” At some point, Omar told Prieto he had given $2,000 to Jorge. The night Omar was shot, he told Prieto that he would pay $1,000 if they would put acid in his ex-wife’s face. Snappy was present. Later, she heard the sound of two gunshots coming from the street. Prieto kept a shotgun, a nine-millimeter pistol and a .22-caliber pistol at her house because she lived in a dangerous neighborhood. She denied selling drugs out of her house, but said that George and Flaco did.

12. Bernice Garcia Sanchez

Bernice Garcia Sanchez met defendant through one of her cousins and dated him. One of her two children was fathered by defendant. Defendant’s friends called him Gadget. He was living in a back house in Los Angeles with some other people, including George. Carmen lived in the front house. Sanchez visited the property five or six times. The door to the back house was kept locked; defendant had a key to open the door. She saw “big” guns in the back house. She saw defendant with a long gun like a rifle.

In the fall of 2003, defendant called Sanchez and told her that he and a friend had shot a person in front of his house. He was not in custody at that time; the next time she heard from him, he was in custody. Sanchez saw defendant selling drugs out of the back house. When defendant told her he had shot someone, he said he did it because he thought the victim was going to shoot defendant’s friend.

13. Rola Sharab

Rola Sharab was married to Atbeisat Mohamedith from 1992 to 2000. They had one child together. Both she and Mohamedith were Jordanian. After they separated, Sharab returned to Jordan.

While in Jordan, Sharab met and started dating Ahmad Khrino. Khrino moved to the United States in December 2001. Sharab followed six months later, and married Khrino in June 2002. When Sharab tried to contact Mohamedith because their child wanted to speak to him, Mohamedith threatened to cut her hands and throw battery acid in her face, so that she and her husband would suffer all their lives. There were five or 10 such incidents.

In May 2003, Khrino was attacked. They were living in San Leandro. After Khrino was attacked, unauthorized charges appeared on their credit card bills.

14. Ahmad Khrino

In 2003, Sharab and her new husband, Ahmad Khrino, lived in an apartment in San Leandro. A Safeway supermarket with a parking lot was across the street from the apartment building.

At 5:30 a.m. on May 1, 2003, Khrino left the apartment building to go to work. As he went to his car parked on the street, he saw movement and saw at least two men hiding behind and between some small trees or bushes. One man started running toward him; Khrino unsuccessfully tried to escape back into the apartment building. Khrino asked what was going on; one of the men responded, “You know what’s going on.” The man drew a stick, like a policeman’s baton, from under his jacket. Khrino was struck multiple times in the head by at least two assailants. Khrino fell to the sidewalk bleeding; the men ran away down the street. Khrino’s wallet, including a Wells Fargo bank card, was missing. Khrino was treated by paramedics and transported to the hospital. By the time he arrived, he had lost consciousness. He was hospitalized for five days and underwent several surgeries. He was unable to return to work for eight months.

Approximately two months after he was attacked, a woman came to Khrino’s door and said she had a delivery. She asked him to open the door. Khrino thought she did not look like a delivery woman, and saw two suspicious looking men standing outside his door. He said he was going to call the police. Another time, Khrino noticed as he was driving to San Francisco that he was being followed by a blue car with two women and two men. The car had a Wonder Woman sticker on the back window.

Khrino later identified the men who attacked him and a woman who looked like the purported delivery woman from photo lineups. Khrino identified defendant in court as the man who had spoken to him and then assaulted him in May 2003.

15. Officer Kendrick Shedd

Officer Kendrick Shedd was a patrol officer with the San Leandro Police Department. He responded to the attack on Khrino on May 1, 2003. Khrino had suffered a severe head laceration.

16. Sergeant Doug Calcagno

Sergeant Doug Calcagno was, in 2003, a San Leandro police detective assigned to investigate the assault against Khrino. In October 2003, Khrino identified defendant from a photo lineup as one of the men who assaulted him. Khrino failed to identify Jose Rodriguez as the second man, however, and identified a “filler” photo instead. Khrino identified Prieto from a photo lineup as the purported delivery woman.

17. Jose Rodriguez

Jose Rodriguez went by the name Flaco. His younger brother was Victor Rodriguez. On September 20, 2003, Jose took Araseli Medina’s black Jetta to “talk” to Green Eyes because Green Eyes was going to testify against a friend, Chindio Medrano. Medrano also goes by the name Crazy. Jose was going to tell Green Eyes not to go to court. Jose was driving; he picked up defendant and, at defendant’s direction, another Hispanic male called Toker who Jose did not know. Jose did not have a gun, and did not know that defendant had a gun. After they located and picked up Green Eyes, they drove around for about ten minutes before they stopped. They stopped to let him out. While they were driving, Jose and defendant both asked Green Eyes whether he was going to court; Green Eyes said that he was. When they stopped, Green Eyes got out of the rear driver’s side door. When Green Eyes got out of the car, defendant shot him twice in the head. They left; Rodriguez dropped defendant off at the 111th Street house. Jose testified that he and Victor were both “shocked and surprised” when defendant shot Tyson.

Jose went to Northern California with defendant on a couple of occasions. Once they went to find the person Mohamedith wanted; Mohamedith had offered money to find where this person was. Carmen and defendant were both there when this was discussed.

Jose was at Carmen’s house when Mohamedith was shot. It was in the evening; Jose was in the back house. Jose heard approximately 10 gunshots. Jose went to see what was happening. Mohamedith was dead in the street. Jose saw Snappy, carrying an AK-47, running away. Defendant was running with Snappy.

Jose believed that Tyson was a member of a Crips street gang. Medrano was a member of South Los at the time Tyson was shot. Defendant assaulted Jose in March 2004, while both were being held in lockup in Compton. In connection with the Tyson incident, Jose had been convicted of dissuading a witness and sentenced to seven years imprisonment. He was never charged with Tyson’s murder.

18. Detective Mark Hahn

Detective Mark Hahn was an LAPD homicide detective who, in 2003, was assigned to investigate the killings of Ronald Tyson and Atbeisat Mohamedith. Detective Hahn arrived at the Tyson crime scene at approximately 5:30 p.m. on September 20, 2003. Tyson’s body was still at the scene. Tyson was on his side with his legs twisted underneath him; he had apparent gunshot wounds to his head and back. Police recovered two .32-caliber bullet casings and one nine-millimeter bullet casing.

Detective Hahn was assigned to the Mohamedith homicide on September 22, 2003. He arrived at the crime scene in the late evening. Mohamedith’s body was found in the street near the driver’s door of a blue minivan. Mohamedith was lying on his back; he had one gunshot wound in his lower neck and two in his torso. The front driver’s side and passenger side windows of the minivan were broken out; there were pry marks near the rear cargo door lock. The rear cargo door and the sliding passenger door were open. There were “many” boxes in the van. Police observed six “strike” marks on the asphalt, probably caused by gunshots. Eight 7.62-millimeter bullet casings and two nine-millimeter bullet casings were found at the scene. Police also collected one straw hat and one baseball hat. Police later determined that the straw hat contained DNA of someone other than defendant or Cossio; the baseball cap contained Cossio’s DNA. There was a box on the ground to the rear of the van. Mohamedith’s body was found at 157 West 111th Street, just a few houses away from Carmen Prieto’s house at 142 West 111th Street.

Detective Hahn testified that, in an interview about the Tyson homicide, Jose Rodriguez stated that he had asked defendant how he felt after shooting Tyson. Defendant responded, “Cool.”

In an interview, Victor Rodriguez told Detective Hahn that he and Jose had gone in a black Volkswagen Jetta and picked up two Hispanic males, and then picked up a Black male from some apartments. While they were driving, the individual sitting behind the driver started “talking shit” to the Black male. The Black person got angry. The Hispanic then told the Black male to “stand up and get outside.” As the Black male was getting out, Victor Rodriguez heard two gunshots. Victor Rodriguez had identified defendant as the shooter in a photo lineup.

Detective Hahn had interviewed Cipriano Patino. Patino had told him that, when he got to Carmen Prieto’s house the night Mohamedith was killed, there was a group of people by the back house, including defendant, Jose Rodriguez and Cossio. Carmen was in the front house. Patino went to the back house to fix a door lock. He heard gunshots, then saw defendant and Cossio run from 111th Street to the back door of the front house. Cossio was holding an AK-47. Defendant told Carmen not to come out of her house. He and Cossio then ran through Carmen’s yard and jumped the fence. Patino told Detective Hahn that he had met Mohamedith, and had seen defendant dealing with him about a month and a half before Mohamedith was killed. Mohamedith wanted defendant to go to Oakland to “stomp a guy’s balls.” Patino identified defendant as Gadget from a photograph found at Carmen Prieto’s house.

Detective Hahn had interviewed Carmen Prieto while she was in custody on an unrelated charge. She told Detective Hahn that, the night Mohamedith was killed, Jose Rodriguez, defendant, Cossio, Patino and others were out by the back house. Before the shooting, Mohamedith had come over. Mohamedith told Carmen that he had given Jorge money to beat up Khrino. Mohamedith showed her a picture of his ex-wife and a kid, and said he would pay $1,000 to someone to put acid on his ex-wife’s face. Right before the shooting, she had seen defendant and Cossio in the back of Mohamedith’s van while defendant looked for “smelling oils.” Cossio was holding the AK-47. Defendant was wearing a straw cowboy hat and a white jacket; Cossio was wearing a blue baseball cap. She went into her bedroom, where she heard a gunshot, then some more shots. Defendant came to her back door and yelled for her and told her that somebody got shot out front. Defendant and Cossio ran through the backyard. Carmen went out front and drove to 112th and Main, where she picked up Cossio next to some pink apartments. Defendant called and told her to pick him up at his uncle’s house on 111th Place near Main Street. After Carmen picked defendant up, they went to Carmen’s sister’s house.

In 2001, Detective Hahn investigated a homicide involving Miguel Angel Lopez, a member of South Los. Lopez was convicted of murder and sent to prison in December 2002. As defendant, Lopez also was known by the gang moniker Gadget.

19. Deputy Timothy Lee

In October 2004, L.A. Sheriff’s Deputy Timothy Lee was assigned to Men’s Central Jail, where he became familiar with defendant. Deputy Lee searched defendant’s cell. He found a Styrofoam cup with potential gang writing on it.

20. Deputy Edward Garcia

In October 2004, L.A. Sheriff’s Deputy Edward Garcia was assigned to the Compton courthouse. As the deputies were transferring inmates from the morning buses to holding cells, Deputy Garcia heard a thumping sound, like someone was being hit. Deputy Garcia looked through the observation window and saw two inmates fighting. Defendant was standing over Jose Rodriguez, who was on his hands and knees. Deputy Garcia removed Jose Rodriguez from the cell; he was bleeding from a small laceration on the side of his head. Defendant exhibited redness on his knuckles and was breathing heavily.

21. Rafael Garcia

Rafael Garcia was a criminalist in the firearms analysis unit of the LAPD crime lab. In October 2004, he examined three nine-millimeter shell casings from two separate incidents (the Tyson and Mohamedith homicides) to determine whether they had been fired by the same weapon. Garcia concluded that all three shell casings had been fired by the same weapon. His conclusion was confirmed in an independent comparison by a second criminalist. Garcia was familiar with 7.62-millimeter ammunition; it was designed to be fired from a rifle.

22. Starr Sachs

Starr Sachs was a firearm examiner with the LAPD crime lab. Sachs was the quality control examiner with respect to Garcia’s comparison of the nine-millimeter shell casings. She also concluded that all three nine-millimeter casings had been fired from the same weapon.

23. Reron Paulino

Reron Paulino was sitting in a car with his girlfriend, Takeisha Ford, on West 111th Place (one block south of 111th Street) on September 22, 2003 at the time of a shooting. He heard seven shots—first five shots, then another two. Shortly after, he saw two individuals come out of his backyard, clambering over a wooden fence. One was carrying a sack; the other was carrying an assault weapon, like an AK-47, by a strap over his shoulder. They were running one after the other, as if trying to get away as quickly as possible. When he saw the assault weapon, he and his girlfriend hid, so he did not get a good look at the two men. Paulino “guesstimated” that the person with the assault weapon was Hispanic or light-skinned African American; he could not remember anything about the appearance of the person with the bag. He had described the person to Detective Hahn while his memory was fresher.

24. Takeisha Ford

Takeisha Ford was sitting in a car with Paulino on West 111th Place on September 22, 2003. She heard a gunshot. Shortly after, she saw a gun come over the back fence, then a person. She laid her seat back and hid. The person was wearing a white shirt.

25. Jose Angeli

Jose Angeli lived on West 111th Street On September 22, 2003, he heard seven shots. When he came out of his house, he saw a body in the street near the driver’s side of a van. He had seen the van approximately ten minutes earlier; the man who was later killed had been behind the van looking in some boxes. Another person was on the passenger side looking at something. The other person was a man with a closely shaved head, wearing a white shirt. Angeli, who had been in the army in Honduras, said the shots sounded like an AK-47.

26. Dr. Pedro Ortiz

Dr. Pedro Ortiz was a medical examiner with the Los Angeles County Department of the Coroner. He performed an autopsy on Atbeisat Mohamedith. Mohamedith died of two fatal gunshot wounds. Mohamedith was shot in the back right of his neck; the bullet traveled right to left and back to front, fracturing the third through fifth cervical vertebrae and exiting the left side of his neck. He also was shot in the right side; the bullet traveled right to left, front to back and upwards. It went through the liver, kidneys, spleen and pancreas and fractured several vertebrae. The bullet exited the left lateral chest. There was also a superficial wound on Mohamedith’s left arm. Dr. Ortiz opined that the fatal wounds were more consistent with wounds caused by medium caliber ammunition (such as nine-millimeter ammunition) than wounds caused by high-velocity ammunition (such as 7.62-millimeter ammunition fired from a rifle), but Dr. Ortiz could not rule out entirely that the wounds had been caused by rifle shots.

27. Officer Gerardo Vejar

LAPD Officer Gerardo Vejar was assigned to the Hollenbeck Career Criminal Unit. He was formerly assigned to the Southeast Gang Unit. South Los (also known as Sur Los) was a gang whose territory was in south Los Angeles, centered just north of the intersection of the 110 and 105 freeways. The gang had approximately 250 members at the time of trial. The gang’s activities included narcotics sales, shootings, assaults, witness intimidation and murder. South Los used the gang signs SXL, SXL 13, VSXL and Sur Los. The “V” was for “varrio”; the “13” was a reference to affiliation with the Mexican Mafia. The sign “VSXL” was on the Styrofoam cup seized from defendant’s cell by Deputy Lee in October 2004.

Officer Vejar opined that a person named Diego Marquez was a member of South Los in 2003. Marquez had admitted membership in the gang, and was known by the moniker Chato. Chindio Medrano was a documented member of South Los in 2003. Defendant had admitted to Officer Vejar in April 2003 that he was a member of South Los.

Officer Vejar said that letters written by defendant had gang significance. Specifically, defendant wrote a letter to his son stating that he had named his son Angel in honor of Miguel Angel Lopez, a member of South Los who had been convicted of murder in 2002. In another letter, defendant told his son about his experiences in jail, stating that he had to endure it “and be down for the cause,” and that he was still “devoted” to the “lifestyle.” Officer Vejar believed that this indicated that defendant was still involved with the gang even while in jail. Other passages in the same letter, in which defendant referred to himself as a soldier and to his “soldier’s creed,” were consistent with a warrior mentality among gang members.

In response to a hypothetical question positing facts similar to the Tyson homicide, Officer Vejar gave the opinion that such a crime would be for the benefit of the street gang “because gangs thrive on fear and intimidation.” It would communicate to the community that the gang was “not to be messed with,” and would facilitate future criminal conduct by the gang by deterring witnesses from cooperating with law enforcement.

C. The Defense Case

1. Detective Roger Allen

Detective Roger Allen was one of the detectives assigned to investigate the Mohamedith homicide. The night of the shooting, another officer told Detective Allen that Juan Hernandez, who lived across the street from where the shooting occurred, had seen two Black males rummaging through the van; that he had never seen the van before and did not consider it unusual; and that 15 to 20 minutes later, he heard gunfire coming from the street. Detective Allen later interviewed Juan Hernandez. Hernandez told Detective Allen that he had seen a thin male Hispanic, or a person who appeared to be Hispanic, and another person of muscular build who might have been a male Black. He had been unable to see the faces of either.

2. Lt. Frederick Corral

Lt. Frederick Corral was the lieutenant watch commander of the L.A. County Coroner Investigations Division. He supervised the work of Guy Kellerman, who took a gunshot residue kit from Mohamedith the night of his death. Lt. Corral believed that the victim of a gunshot wound could have residue on his body if the victim was within approximately six feet of where the gun was fired, or if the victim grabbed a recently fired weapon.

3. Steven Dowell

Steven Dowell was a criminalist with the L.A. County Department of the Coroner. One of his fields of expertise was gunshot residue analysis. The gunshot residue analysis of samples taken from Mohamedith found two “highly specific” gunshot residue particles, and many particles consistent with gunshot residue, on both hands. Dowell opined that Mohamedith had either discharged a firearm or was otherwise in an environment of gunshot residue. Being in the “environment” could include being in the immediate area of a firearm when discharged, handling a previously discharged firearm, or being touched by someone who had gunshot residue on his or her hands. The residue found on Mohamedith would be consistent with someone holding a handgun with both hands and firing it.

4. Elsa Martinez

Elsa Martinez met defendant while working with Carmen Prieto at Aviation Safe Yards. On May 1, 2003 (the day Khrino was assaulted in San Leandro), Prieto had a birthday party at her house. Martinez arrived between 6:00 and 6:30 p.m. Defendant was at the party.

5. Marc Taylor

Marc Taylor was the owner and laboratory director of a forensic science laboratory in Ventura. Taylor compared cartridge cases recovered from two scenes and analyzed a bullet recovered from a body. Taylor compared the two nine-millimeter shell casings found at the Mohamedith scene. Taylor noted similarities between the casings, but concluded that the similarities were not sufficient to say that the casings were definitely fired from the same weapon. Taylor also compared those shell casings to the nine-millimeter shell casing found at the Tyson scene. Taylor noted inconsistencies between the shell casings. After receiving additional information regarding the LAPD lab comparison, however, Taylor concluded that chambering marks on the shell casings would indicate that the shell casings had been fired from the same weapon.

Taylor analyzed a deformed bullet found at the Mohamedith scene. He concluded that the bullet was consistent with a .32-caliber bullet, but was too small to be a nine-millimeter bullet.

6. Gicela Carmen Prieto (Recalled)

On May 1, 2003, Prieto saw defendant at approximately 9:00 a.m., after which he returned to his house a half block away at 123 West 111th Street She saw him again at approximately 3:00 p.m., then he came to Prieto’s birthday party at 4:00 p.m.

Prieto first met Mohamedith long after her birthday party—probably in mid to late August 2003. Defendant was not with Prieto, Jose Rodriguez, Jorge Delgado and Araseli Medina went they went to San Leandro in August. She never told police that defendant was with them.

D. Procedural Background

In an amended information filed February 20, 2007, defendant and Cossio were charged with the murder of Mohamedith (count 1) (§ 187, subd. (a)). Defendant was also charged with the murder of Ronald Tyson (count 2); conspiring to torture Ahmed Khrino (count 3) (§§ 182, subd. (a)(1); 206); the premeditated attempted murder of Khrino (count 4) (§§ 667; 187, subd. (a)); and the torture of Khrino (count 5) (§ 206).

Cossio is not a party to this appeal.

With respect to counts 1 and 2, the People alleged a multiple murder special circumstance (§ 190.2, subd. (a)(3)). With respect to count 2, the People alleged the special circumstances that Tyson was a witness to a crime and defendant intentionally killed him because of that fact (§ 190.2, subd. (a)(10)), and that defendant killed Tyson while defendant was an active participant in a street gang to further the activities of the gang (§ 190.2, subd. (a)(22)).

The People also specially alleged with respect to counts 1 and 2 that defendant personally and intentionally discharged a firearm (§ 12022.53, subds. (b)-(d)) and with respect to count 2, that a principal discharged a firearm (§ 12022.53, subd. (e)) (collectively, the firearm enhancements). With respect to count 2, the People alleged that defendant murdered Tyson for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)) (the gang enhancement). The People alleged with respect to count 5 that defendant personally inflicted great bodily injury on Khrino (§ 12022.7, subd. (a)) (the GBI enhancement).

The case was tried to a jury. The jury convicted defendant of the first degree murder of Ronald Tyson on count 2; the second degree murder of Atbeisat Mohamedith on count 1; and conspiracy to torture and the torture of Khrino on counts 3 and 5. The jury acquitted defendant of the attempted murder of Khrino on count 4. The jury found not true the firearm-enhancement allegations with respect to count 1, but found true the firearm and gang-enhancement allegations with respect to count 2 and the GBI-enhancement allegation with respect to count 5. The jury also found true all three special-circumstances allegations.

After a penalty phase trial, the jury recommended that defendant be sentenced to prison for life without the possibility of parole. The trial court selected count 2 as the base count, and sentenced defendant to life without the possibility of parole, plus a consecutive sentence of 25 years to life on the firearm enhancement. The trial court stayed defendant’s sentence on the gang enhancement. The trial court imposed a consecutive sentence of 15 years to life on count 1, and another consecutive life term on count 5. The trial court stayed defendant’s sentence on count 3 pursuant to section 654. The trial court imposed a court security assessment of $20; a $500 restitution fine; and no parole revocation restitution fine. Defendant received presentence credit of 1336 days for actual custody. Defendant timely appealed.

DISCUSSION

A. Accomplice Testimony

1. Relevant Background

During a discussion of jury instructions prior to the close of evidence, defense counsel stated, “We request 3.16 and we feel that Jose Rodriguez is an accomplice as a matter of law.” Defense counsel referred to CALJIC No. 3.16, which states, “If the crime of __________ was committed by anyone, the witness __________ was an accomplice as a matter of law and [his] [her] testimony is subject to the rule requiring corroboration.”

The trial court refused to give that instruction, opting instead to give CALJIC No. 3.19, which states, “You must determine whether the witness __________ was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that __________ was an accomplice in the crime[s] charged against the defendant.” The trial court explained its reasoning to counsel (although with reference only to the Tyson murder) as follows:

“You’ll note that I treated both Jose Rodriguez and his brother as persons that the jury could consider as accomplices if the jury so found. [¶] My thought on that was, that according to Jose’s testimony, he did not admit knowing that Mr. Tinoco was going to shoot the witness—allegedly shoot the witness before the shooting occurred. He said they were just going to talk to the witness. And if anything, he would be an accessory after the fact if the jury so believed that he didn’t know. [¶] Now, if the jury does not believe him on that point and finds that he was part of a scheme to find and kill Green Eyes, then they certainly can consider him as an accomplice. And I have included aiding and abetting instructions for that purpose. And I would think that the defense would likely argue that he certainly was an aider and abetter [sic] of any killing, if he didn’t do the killing himself. That was my thought on the matter.”

Defense counsel pointed out, “Mr. Jose Rodriguez did plead to the underlying crime of dissuading the witness.” The trial court responded, “That is different from killing. . . [¶] . . . You can argue it and say that he was an accomplice. And certainly I don’t know the fact that he—I mean, his testimony was, I wanted to tell him not to come to court; not kill him. That is why I went with 3.19 and not 3.16. [¶] But over objection 3.16 will not be given.”

The trial court instructed the jury on aiding and abetting; that it could not convict defendant “based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense”; and that incriminating testimony of an accomplice “should be viewed with caution.” The trial court defined an accomplice as “a person who is or was subject to prosecution for the identical offense charged in Count 2 against the defendant on trial by reason of aiding and abetting.” The trial court instructed, “You must determine whether the witnesses Jose Rodriguez and Victor Rodriguez were accomplices as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that Jose Rodriguez and Victor Rodriguez were accomplices in the crime charged in Count 2 against the defendant.”

2. Discussion

a. Applicable Principles

We review defendant’s claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) Section 1111 provides, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby 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.” Section 1111 requires corroboration because accomplice testimony “is inherently untrustworthy . . . .” (People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice “‘usually testif[ies] in the hope of favor or the expectation of immunity.’ [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.]” (Ibid.)

Although section 1111 defines an accomplice as one “liable to prosecution for the identical offense charged against the defendant,” the fact that the witness was prosecuted for the same offense does not by itself establish that the witness is an accomplice. (People v. Gordon (1973) 10 Cal.3d 460, 467.) “[A]n accomplice is one who aids or promotes the perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the commission of the target crime . . . .” (People v. Williams (2008) 43 Cal.4th 584, 637.) Neither presence at the scene nor failure to attempt to prevent the crime is sufficient in itself to establish that a person is an accomplice. (People v. Rodriguez (1986) 42 Cal.3d 730, 760.) A mere accessory is not an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.)

Ordinarily, whether a witness is an accomplice is a question of fact. (People v. Avila (2006) 38 Cal.4th 491, 565; People v. Sully (1991) 53 Cal.3d 1195, 1227-1228; People v. Rodriguez, supra, 42 Cal.3d at p. 759.) The defendant bears the burden to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 967-968; People v. Sully, supra, 53 Cal.3d at p. 1228.) If there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury regarding the law of accomplices. (People v. Tobias, supra, 25 Cal.4th at p. 331; People v. Frye, supra, 18 Cal.4th at pp. 965-966; see also People v. Zapien (1993) 4 Cal.4th 929, 981-982.) A trial court may determine that a witness is an accomplice as a matter of law only if the facts establishing the witness’s criminal culpability are clear and undisputed. (People v. Avila, supra, 38 Cal.4th at p. 565.) If the evidence establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. (People v. Zapien, supra, 4 Cal.4th at p. 982.) When, however, the evidence is disputed or supports conflicting inferences, the trial court must instruct the jury to make a factual determination whether the witness was an accomplice. (Ibid.) “In either case, the trial court also must instruct the jury, sua sponte, ‘(1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplice’s testimony unless it is corroborated . . . .’ [Citation.]” (Ibid.)

A trial court’s failure to instruct on the requirement of corroboration is harmless if a review of the entire record reveals sufficient evidence to corroborate the accomplice’s testimony. (People v. Williams, supra, 43 Cal.4th at pp. 637-638; People v. Frye, supra, 18 Cal.4th at p. 966.) Corroborating evidence “‘“must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” . . . .’ [Citation.]” (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.) “The corroborating evidence may be entirely circumstantial. [Citations.] The corroborating evidence may be ‘“slight and entitled to little consideration when standing alone.”’ [Citations.] Only a portion of the accomplice’s testimony need be corroborated, and the corroborative evidence need not establish every element of the offense charged. [Citation.] All that is required is that the evidence ‘“‘“connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth.”’”’ [Citation.]” (People v. DeJesus (1995) 38 Cal.App.4th 1, 25; see also People v. Williams, supra, 43 Cal.4th at p. 638.) Another accomplice cannot provide corroborating evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 958.)

b. Counts 3 and 5—Jose Rodriguez, Prieto and Medina

Defendant argues that the trial court erred by failing to instruct the jury that Jose Rodriguez, Carmen Prieto and Araseli Medina were accomplices as a matter of law to the crimes of conspiring to torture and torturing Khrino, charged in counts 3 and 5. Defendant argues in the alternative that the trial court erred by failing to submit to the jury the issue of whether these persons were accomplices. Respondent argues that the witnesses were not accomplices. But even if they were, and if we assume that the trial court erred in failing to so instruct the jury, such errors would be harmless. (See People v. Lewis, supra, 26 Cal.4th at p. 370.)

Defendant argues that he was prejudiced because the jury should have been instructed to view the testimony of these witnesses with caution (CALJIC No. 3.18). The California Supreme Court held in People v. Lewis, supra, 26 Cal.4th at p. 371, however, that other jury instructions may suffice to inform the jury to view accomplice testimony with caution, and thus render error in failing to give CALJIC No. 3.18 harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 837. In this case, the trial court gave two of the three instructions the Supreme Court found pertinent in Lewis—the instruction pursuant to CALJIC No. 2.21.2 that“[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others,” and the instruction pursuant to CALJIC No. 2.20 on factors to consider in assessing a witness’s credibility. In addition, the jury in this case was instructed (1) pursuant to CALJIC No. 2.11.5 that there was “evidence . . . indicating that a person or persons other than the defendant were or may have been involved in the crimes for which the defendant is on trial”; (2) pursuant to CALJIC No. 2.13 to consider witnesses’ prior inconsistent statements “for the purpose of testing the credibility of the witness”; and (3) pursuant to CALIC No. 2.23 that the fact that a witness had been convicted of a felony may be considered “for the purpose of determining the believability of that witness.”

Moreover, with respect to Jose Rodriguez, the jury was instructed to determine whether he was an accomplice with respect to count 2, and if he was, to view his testimony with caution, per CALJIC No. 3.18. That instruction was not limited to his testimony regarding Tyson’s murder—rather, it applied to any testimony of Jose Rodriguez “that tend[ed] to incriminate the defendant . . . .”

The arguments of counsel also informed the jury to view the testimony of these witnesses with caution. (See People v. Lewis, supra, 26 Cal.4th at p. 371 [arguments of counsel relevant to determining prejudice].) The prosecutor did not dispute during argument to the jury that Jose Rodriguez was an accomplice, reminding the jury during argument that Jose Rodriguez had “been convicted and sentenced for his part in these crimes.” Nor did the prosecutor dispute that Jose Rodriguez, Prieto and Medina were members of the conspiracy to torture Khrino, referring to them as defendant’s “coconspirators” and remarking, “If you put together a conspiracy to do what these people have done . . ., those are your witnesses. We don’t get them from central casting.”

Defense counsel made the credibility of these witnesses the central theme of his argument, stating at the outset, “[This case] essentially involved credibility of the witnesses. [¶] Many of the witnesses that did pass through here are either conspirators, coconspirators, accomplices or in some way borderline criminals trying to cover themselves, testifying as to things that occurred, pointing their fingers at anyone that is going to prevent them from having to answer for their own actions.” Counsel returned to that theme several times in his argument.

In the circumstances of this case, the instructions given to the jury “were sufficient to inform the jury to view [these witnesses’] testimony with care and caution, in line with CALJIC No. 3.18.” (People v. Lewis, supra, 26 Cal.4th at p. 371.) We therefore conclude that there was no reasonable probability that defendant would have received a more favorable result if the trial court instructed the jury to view the testimony of Jose Rodriguez, Prieto and Media testimony with distrust. (Ibid.)

To the extent defendant argues that the jury should have been instructed on the corroboration requirement of section 1111, the record contains sufficient corroborating evidence tending to connect defendant to the crimes charged in counts 3 and 5 to render the error harmless. (People v. Williams, supra, 43 Cal.4th at p. 637.) Most significantly, Khrino identified defendant as one of the two men who beat him on May 1, 2003. Khrino testified that he asked defendant what was going on, to which defendant replied, “You know what’s going on.” Khrino also identified Prieto as the woman who had come to his door posing as a delivery woman, and identified Prieto’s car as the car that had followed him from his home to San Francisco. Khrino’s wife, Rola Sharab, testified that Mohamedith had threatened her and Khrino. Khrino testified that his wallet was missing after he was attacked on May 1; there was evidence that, shortly thereafter, unauthorized charges appeared on Khrino’s credit cards from transactions that occurred in Los Angeles. Patino told Detective Hahn that he had met Mohamedith, had seen defendant dealing with Mohamedith, and that Mohamedith wanted defendant to go to Oakland to “stomp a guy’s balls.” There was thus sufficient evidence to corroborate the testimony of Jose Rodriguez, Prieto and Medina with respect to counts 3 and 5 such that any error in failing to instruct the jury on the corroboration requirement of section 1111 with respect to those counts was harmless. (See People v. Frye, supra, 18 Cal.4th at p. 966.)

c. Count 1—Prieto

Defendant appears to argue that, because Prieto’s testimony also was relevant to count 1, her testimony regarding the murder of Mohamedith must be subject to the corroboration requirement of section 1111, even though there is no evidence that she was an accomplice to that crime. Assuming that defendant correctly states the law, the record contains sufficient corroborating evidence tending to implicate defendant in the murder of Mohamedith. (People v. Bunyard, supra, 45 Cal.3d at p. 1206.) Detective Hahn testified that Patino told him that he was at the back house the night Mohamedith was killed. He heard gunshots, then saw defendant and Cossio run from 111th Street to the back door of the front house. Cossio was holding an AK-47. Defendant told Carmen not to come out of her house. He and Cossio then ran through Carmen’s yard and jumped the fence. Patino’s statement to Detective Hahn was consistent with testimony from Reron Paulino that he saw two fleeing men, one with an AK-47, jump the fence from the direction of 111th Street. Takeisha Ford also testified that she saw a man with a gun jump the fence. Bernice Sanchez testified that defendant called her and told her that he had shot a person in front of his house. Finally, criminalists Rafael Garcia and Starr Sachs testified that the nine-millimeter shell casings recovered from the scene of Mohamedith’s murder were fired by the same weapon that fired the shell casing found at the scene of Tyson’s murder. Accordingly, any error by the trial court in failing to give accomplice instructions with respect to Prieto’s testimony on count 1 was harmless.

Our conclusion ante that the jury was adequately instructed to view Prieto’s testimony with caution applies equally to her testimony relating to count 1.

d. Count 2—Jose and Victor Rodriguez

Defendant contends that the trial court erred in failing to instruct the jury pursuant to CALJIC No. 3.16 that Jose and Victor Rodriguez were accomplices to the murder of Tyson as a matter of law. Defendant argues that, because section 1111defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial” (italics added), a witness must be deemed an accomplice as a matter of law if there is probable cause to believe that the witness is liable for the crime, even if there are issues of fact regarding the witness’s factual guilt. Although the language of section 1111 appears susceptible to defendant’s interpretation, that is not how the California Supreme Court has read it. In People v. Rodriguez, supra, 42 Cal.3d 730, the court stated, “It is well settled that the phrase ‘liable to prosecution’ in section 1111 means, in effect, properly liable. Any issues of fact determinative of the witness’s factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed may the court determine that the witness is or is not an accomplice as a matter of law.” (Id. at p. 759.) A witness is thus an accomplice as a matter of law for purposes of section 1111 only if the evidence of the witness’s factual guilt is clear and undisputed. If there is probable cause to believe the witness is an accomplice but fact issues remain as to the witness’s factual guilt, the issue must be submitted to the jury. (People v. Hayes (1999) 21 Cal.4th 1211, 1272; People v. Rodriguez, supra, 42 Cal.3d at p. 759 .)

In this case, although there was circumstantial evidence that one or both of the Rodriguez brothers were accomplices to the murder of Tyson, the record contained evidence permitting a contrary conclusion. Victor Rodriguez testified that he is not close to his brother Jose, who is substantially older. Victor was with Jose in the Jetta on the day of Tyson’s murder because Jose wanted a friend of Victor’s to fix or install a car stereo, and Victor’s friend was afraid of Jose and wanted Victor to be present. Victor further testified that he did not know any of the other people in the car, and neither knew nor wanted to know what was happening. The record does not indicate that Victor was charged with or convicted of any crime arising from or related to the events leading to Tyson’s murder. Victor’s testimony would support a reasonable conclusion that he was not an accomplice in Tyson’s murder.

Jose testified that he did not intend to harm Tyson, but only wanted to talk to him and tell him not to testify against Chindio Medrano. Jose testified that he was not armed, did not know that defendant was armed, and that he and Victor were both “shocked and surprised” when defendant shot Tyson. Jose was convicted of dissuading a witness; he was never charged with or convicted of Tyson’s murder. If accepted by the jury, Jose’s testimony would support the conclusion that he was not an accomplice to Tyson’s murder. (See People v. Garrison (1989) 47 Cal.3d 746, 772 [witness not an accomplice as a matter of law when he denied intent to facilitate murder, did not know defendant was armed and was “surprised by the killing”].)

Defendant relies on the alleged gang affiliation of the Rodriguez brothers in arguing that they were accomplices to Tyson’s murder. Although one might reasonably infer from evidence in the record that the Rodriguez brothers were associated with South Los, there was no direct evidence that Victor ever belonged to or was associated with any gang, or that Jose belonged to or was associated with South Los. The only evidence of Jose Rodriguez’s gang affiliation was that he was a former member of the Watts Mafia street gang. Accordingly, to the extent the issue was relevant, questions of fact remained regarding the alleged gang affiliation of the Rodriguez brothers.

Defendant argues that, even if there was a conflict in the evidence regarding whether Jose shared defendant’s intent to murder Tyson, the murder was a natural and probable consequence of the offense of dissuading a witness, of which Jose was convicted. (See People v. Rodriguez, supra, 42 Cal.3d at pp. 759-760.) That argument lacks merit. Whether a particular criminal act is the natural and probable consequence of another criminal act aided and abetted by the defendant is a question of fact for the jury. (People v. Leon (2008) 161 Cal.App.4th 149, 158; People v. Nguyen (1993) 21 Cal.App.4th 518, 531; see People v. Prettyman (1996) 14 Cal.4th 248, 271 [jury issue]; Id. at p. 279 & fn. 1 [conc. op. of Mosk, J].) Jose’s testimony that he did not intend to harm Tyson, that he was not armed, and that he did not know that defendant was armed created an issue of fact whether Tyson’s murder was a natural and probable consequence of Jose’s crime of dissuading a witness. (See People v. Garrison, supra, 47 Cal.3d at p. 772.)

Defendant also argues that Jose was an accomplice as a matter of law because the crime of dissuading a witness is “inherently dangerous to human life,” such that Jose would be liable for Tyson’s murder on a felony murder theory. The California Supreme Court rejected a similar argument in People v. Avila, supra, 38 Cal.4th 491. In that case, there was evidence that a witness, also named Rodriguez, participated in kidnapping two women who were later murdered. The defendant asserted “that Rodriguez was an accomplice to murder as a matter of law under a felony-murder theory, with kidnap as the predicate felony.” The California Supreme Court disagreed, stating that, because “the prosecution did not present such a theory with respect to any of the defendants on trial. . . . Rodriguez thus was not liable to prosecution for murder on this theory.” (Id. at p. 565, fn. 44.)

Defendant makes this same argument with respect to Victor. Insofar as the record reveals, however, Victor was not charged with or convicted of dissuading a witness, nor does the record support the conclusion that he was guilty of that crime as a matter of law.

As in People v. Avila, supra, 38 Cal.4th 491, defendant in this case was not charged in count 2 with felony murder, and the prosecution did not rely on a felony murder theory at trial. Accordingly, even if in theory Jose might have been chargeable with felony murder, under Avila such a charge was not “the identical offense” (§ 1111, italics added) with which defendant was charged in this case. The trial court properly submitted to the jury the issue of whether the Rodriguez brothers were accomplices.

B. Hearsay Evidence

Defendant argues that the trial court erred in admitting several hearsay statements made by witnesses attributed to Mohamedith pursuant to the coconspirator exception to the hearsay rule. (Evid. Code, § 1223.) “‘Hearsay evidence is of course generally inadmissible. (Evid. Code, § 1200.) Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents “independent evidence to establish prima facie the existence of . . . [a] conspiracy.” [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: “(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.”’ [Citation.]” (In re Hardy (2007) 41 Cal.4th 977, 995-996.)

Evidence Code section 1223 provides in pertinent part, “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [and][¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy.”

“The existence of a conspiracy at the time the statement is made is the preliminary fact to the admissibility of the coconspirator’s statement.” (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) “[T]he proponent must proffer sufficient evidence to allow the trier of fact to determine that the conspiracy exists by a preponderance of the evidence. A prima facie showing of a conspiracy for the purposes of admissibility of a coconspirator’s statement under Evidence Code section 1223 simply means that a reasonable jury could find it more likely than not that the conspiracy existed at the time the statement was made.” (Id. at p. 63.) “‘The court should exclude the proffered evidence only if the “showing of preliminary facts is too weak to support a favorable determination by the jury.”’ [Citations.] ‘The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.’ [Citations.]” (Id. at p. 62.)

To prove a conspiracy, the prosecution must present evidence “‘that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 120; People v. Bogan (2007) 152 Cal.App.4th 1070, 1074; see §§ 182, subd. (a)(1); 184.) These facts may be established through circumstantial evidence (People v. Longines (1995) 34 Cal.App.4th 621, 626), and they may “‘be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

In this case, the prosecution alleged in count 3 a conspiracy between defendant and others to torture Khrino that began on or before May 1, 2003 and continued through September 2003. Defendant admits that “it might be possible” to view the trial evidence as establishing a “continuing” conspiracy, but contends that the “better view” is that the evidence established two separate conspiracies—the first to assault Khrino on May 1, 2003, and the second to attack Khrino again in August 2003. The first conspiracy, defendant contends, was completed when defendant and an accomplice assaulted Khrino on May 1, and there is no evidence that defendant participated in the second conspiracy. Thus, defendant concludes, hearsay statements made by Mohamedith after May 1 related to the second conspiracy, and should not have been admitted against defendant.

Defendant objected on this ground at trial to Medina’s testimony that she heard a conversation involving defendant in which Mohamedith offered to pay $2,000 per person to defendant and others to “get” Khrino. The trial court overruled the objection as to that conversation, stating that it would “end up striking testimony if there is clearly evidence of a separate conspiracy [defendant was] not involved in.” Defendant did not move to strike subsequent testimony from Medina regarding that conversation, nor did defendant object on hearsay grounds to the other testimony cited by defendant in his brief. Defendant thus forfeited his hearsay objections to such testimony. In any event, even if we were to consider defendant’s arguments with respect to that testimony, such arguments lack merit for the reasons stated in the text.

It is not for us, however, to determine what is the “better view” of the evidence. Although a conspiracy typically will end “‘when the substantive crime for which the coconspirators are being tried is either attained or defeated’” (People v. Hardy (1992) 2 Cal.4th 86, 143), there is no rule of law limiting a conspiracy to a single, discrete crime. “A given conspiracy may be as ‘limited or as expansive as the capacity of criminal minds to design unlawful combinations’ regardless of how bizarre and fanciful. [Citation.]” (People v. Cooks (1983) 141 Cal.App.3d 224, 314; see Id. at p. 313 [substantial evidence of “conspiracy to kill white people”].) Whether a particular conspiracy has in fact ended is a question to be determined by the trier of fact from the “unique circumstances and the nature and purpose of the conspiracy.” (People v. Hardy, supra, 2 Cal.4th at p. 143.) For purposes of the coconspirator exception to the hearsay rule, the prosecution need produce only “sufficient [evidence] for a reasonable trier of fact to find the existence of” the conspiracy; the prosecution need “not to convince the trial judge [or the appellate court] of [its] existence by a preponderance of the evidence.” (People v. Pic’l (1981) 114 Cal.App.3d 824, 861, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12.)

In this case, there was sufficient evidence exclusive of the statements attributed to Mohamedith to permit a reasonable trier of fact to conclude that a single continuing conspiracy existed from sometime before May 1 to September 2003, the object of which was not a single, particular attack against Khrino but, more generally, to make Khrino and his wife “suffer” through acts of torture. Rola Sharab, Khrino’s wife and Mohamedith’s ex-wife, testified that prior to May 1 Mohamedith threatened her and Khrino repeatedly, and told her that he would make Khrino “suffer all his life.” Khrino testified that defendant and an accomplice—neither of whom Khrino knew—attacked Khrino at 5:30 a.m. as he left his apartment to go to work. Defendant and his accomplice emerged from behind some bushes or small trees, drawing concealed weapons from their jackets as they approached. When Khrino asked defendant what was going on, defendant answered, “You know what’s going on.” A reasonable trier of fact could infer that defendant and his accomplice targeted Khrino and were lying in wait for him, having obtained information about where Khrino lived, what he looked like, where he parked his car and what time he left for work in the morning.

Araseli Medina and Jose Rodriguez both testified that defendant participated in a conversation about the attempt to attack Khrino in August 2003. Medina, Jose and Carmen Prieto all testified regarding the trip they took to San Leandro shortly thereafter; according to Prieto, the purpose of the trip was, in effect, to emasculate Khrino at Mohamedith’s behest.

Moreover, Jose Rodriguez testified that he had been to Northern California with defendant “a couple of times,” including one time to “look for” someone for an “Arab gentleman” named Omar—that is, Mohamedith. Because there is no evidence that defendant went to San Leandro with Jose and the others in August, a reasonable trier of fact could infer either that Jose was defendant’s accomplice in assaulting Khrino in May (despite Khrino’s failure to identify Rodriguez in a photo lineup), or that defendant and Jose took a trip to San Leandro to scout Khrino’s location and habits in preparation for future crimes. In either case, there was evidence that Jose and Mohamedith participated in at least two acts against Khrino spanning the time frame from May to September 2003, and that defendant actively participated in the May attack and was present when the August attack was discussed. Such evidence supports the inference of a single, continuing conspiracy. There was thus sufficient evidence of the existence of a conspiracy to permit the trial court to admit Mohamedith’s statements under the coconspirator exception to the hearsay rule, pursuant to Evidence Code section 1223.

C. Substantial Evidence

Defendant argues that there was no substantial evidence to support his conviction on count 3 for conspiracy to torture Khrino. (§ 182, subd. (a)(1).) “In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1053-1054.)

As noted above, to obtain a conviction for conspiracy, the prosecution must prove “‘that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Jurado, supra, 38 Cal.4th at p. 120; see §§ 182, 184; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1024 [identifying the four elements of conspiracy as “(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy”]; 1 Witkin, California Criminal Law (3d ed. 2000), Elements, § 68, p. 277.) “The conspiracy must be inferred by the trier of fact from all the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal.” (People v. Chavez (1962) 208 Cal.App.2d 248, 253.) “While ‘mere association’ cannot establish a conspiracy, ‘[w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense.’ [Citation.]” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1400.) “Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. When two or more persons combine to commit a crime, the jury need not agree on exactly who did what as long as it is convinced a particular defendant committed the crime regardless of what that defendant’s precise role may have been.” (People v. Russo (2001) 25 Cal.4th 1124, 1135-1136.)

1. Overt Acts

The information alleged a conspiracy in Count 3 as follows: “On or before May 1, 2003, and September 22, 2003, . . . the crime of CONSPIRACY TO COMMIT A CRIME . . . was committed by OMAR TINOCO, who did unlawfully conspire together and with another person and persons whose identity is unknown to commit the crime of TORTURE . . . [and] that pursuant to and for the purpose of carrying out the objectives and purposes of the aforesaid conspiracy, the said defendants committed the following overt act and acts at and in the County of LOS ANGELES:

Overt Act 1: Armed himself with a baseball bat.

Overt Act 2: Got into a car with other individuals.

Overt Act 3: Accepted payment from Atbeisat Mohamedith.

Overt Act 4: Drove to San Leandro.

Overt Act 5: Beat Ahmad Khrino in the head.

Overt Act 6: Directed an accomplice to beat Ahmad Khrino in the head.”

Defendant argues that none of these overt acts was sufficient to sustain defendant’s conspiracy conviction. With respect to overt acts 1 through 4, defendant argues that all took place after the May 1 assault on Khrino; because there was no evidence to connect defendant with the conspiracy to commit the second assault in August, these overt acts cannot be used support a conspiracy conviction with respect to defendant.

As discussed ante, there was sufficient evidence to permit a reasonable trier of fact to conclude that defendant participated in a single continuing conspiracy from May through September 2003. That was the conspiracy alleged in the information; the jury convicted defendant of conspiracy “as charged in Count 3 of the information”; and the jury found true the allegations that the objects of the conspiracy were both to torture Khrino in violation of section 206 and to assault Khrino in violation of section 245, subdivision (a)(1). Accordingly, even if defendant was correct that the alleged overt acts 1 through 4 all post-dated the May 1 assault and did not relate to any of his activities, those overt acts still could have been in furtherance of the overall conspiracy.

Defendant is incorrect, however, that overt acts 1 through 4 necessarily post-dated the May 1 assault. Under the substantial evidence standard of review, we “presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft, supra, 23 Cal.4th at p. 1053.) There was sufficient evidence for the jury to conclude that overt acts 1 and 4—that defendant armed himself with a baseball bat and drove to San Leandro—occurred prior to the May 1 attack on Khrino. Khrino testified that defendant beat him with a stick resembling a policeman’s baton. Detective Hahn testified that police recovered a small replica baseball bat from Carmen Prieto’s house. Prieto’s testimony that she purchased the bat “one time that I went up north” is not necessarily inconsistent with the conclusion that defendant had access to the bat on May 1. In any event, the jury was entitled to reject Prieto’s testimony and to infer that the bat was the weapon used by defendant to assault Khrino. Moreover, defendant’s presence with an accomplice in San Leandro on May 1, coupled with the testimony of Jose Rodriguez that he had gone to Northern California with defendant, is substantial evidence that defendant traveled to San Leandro to commit the assault on Khrino, in furtherance of the conspiracy. By convicting defendant of torture on count 5 and by finding true the special allegation that defendant personally inflicted great bodily injury on Khrino, the jury necessarily found that defendant was in San Leandro on May 1 and was armed with a bludgeoning weapon similar to a small baseball bat. Because proof of only one overt act is required (People v. Russo, supra, 25 Cal.4th at p. 1133), substantial evidence of either of these alleged overt acts was sufficient to sustain defendant’s conviction for conspiracy.

With respect to overt acts 5 and 6, defendant contends that those acts constituted the target crime of the conspiracy, and therefore cannot serve as an overt act taken in furtherance of the conspiracy. Defendant’s argument is premised on an incorrect statement of the law. The California Supreme Court has held that “[c]ommission of the target offense in furtherance of the conspiracy satisfies the overt act requirement.” (People v. Jurado, supra, 38 Cal.4th at p. 121 [committing murder in furtherance of a conspiracy to commit murder satisfies the overt act requirement].)

Defendant, in essence, restates his arguments with respect to the overt acts by arguing that the trial court erred by instructing the jury that it could convict defendant by finding one overt act from among a list of overt acts that included acts post-dating the conspiracy and that constituted the target crime. As the foregoing discussion demonstrates, the jury was entitled to rely on any of the overt acts alleged to support defendant’s conviction. The trial court properly instructed the jury with respect to the requirement of finding an overt act.

2. Proof of Conspiracy

Defendant argues that the only evidence to connect defendant with the abortive attack against Khrino in August was defendant’s mere presence when Mohamedith solicited the attack. Defendant also argues that because evidence of Mohamedith’s statements was improperly admitted, there was no competent evidence to prove a conspiracy as to defendant. We have already determined, however, that the jury properly could conclude that there was a single continuing conspiracy, and that evidence of Mohamedith’s statements was properly admitted pursuant to Evidence Code section 1223. There was thus substantial evidence to support defendant’s conviction for conspiracy.

D. Ineffective Assistance of Counsel

Defendant argues that he was denied the effective assistance of counsel at trial in violation of his rights under the Sixth and Fourteenth Amendments to the federal Constitution. On direct appeal, the burden is on defendant to demonstrate that he is entitled to relief because of his counsel’s ineffective assistance. (In re Lucas (2004) 33 Cal.4th, 682, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To do so, defendant “‘“‘must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” [Citations.]’ This second part of the Strickland test ‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” [Citation.]’ [Citation.]” (In re Hardy, supra, 41 Cal.4th at pp. 1018-1019.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, 466 U.S. at p. 697; In re Scott (2003) 29 Cal.4th 783, 825; In re Ross (1995) 10 Cal.4th 184, 204; see In re Lucas, supra, 33 Cal.4th at pp. 731-736.)

Defendant argues that trial counsel was ineffective because of the failure to request a jury instruction that Carmen Prieto and Araseli Medina were accomplices, failed to argue to the jury that Prieto and Medina were accomplices, and failed to object to the instruction defining accomplices as persons chargeable with the offense alleged in count 2, the murder of Tyson. We have already concluded, however, that defendant was not prejudiced by any instructional error with respect to either the definition of accomplice or the accomplice status of Prieto and Medina. (See ante Discussion, Part A.2.) With respect to counsel’s argument to the jury, we have already observed that counsel did, in fact, argue that Prieto, Medina and others were “conspirators, coconspirators, accomplices or in some way borderline criminals trying to cover themselves [by] pointing their fingers at anyone that is going to prevent them from having to answer for their own actions.” Accordingly, we disagree with defendant’s contention that “counsel failed to raise this crucial aspect of the case.” For purposes of his direct appeal, defendant has failed to carry his burden to establish that he is entitled to relief for the ineffective assistance of trial counsel. Defendant’s claim that his trial counsel “rendered ineffective assistance of counsel . . . must properly await resolution on a fully developed factual record in a habeas corpus proceeding.” (People v. Snow (2003) 30 Cal.4th 43, 118.)

E. Abstract of Judgment

The information specially alleged with respect to both counts 1 (murder of Mohamedith) and 2 (murder of Tyson) that defendant personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) The jury found this allegation not true with respect to count 1, but true with respect to count 2. Based on this enhancement, the trial court imposed a consecutive sentence of 25 years to life on count 2. The abstract of judgment, however, reflects that the sentence on this enhancement was imposed with respect to count 1 rather than count 2. We order the abstract of judgment corrected to reflect that defendant’s for the section 12022.53, subdivision (d) enhancement was imposed with respect to count 2 rather than count 1. (See People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to correct the abstract of judgment to reflect that the section 12022.53, subdivision (d) enhancement was imposed with respect to count 2, and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.


Summaries of

People v. Tinoco

California Court of Appeals, Second District, Fifth Division
Sep 16, 2008
No. B199698 (Cal. Ct. App. Sep. 16, 2008)
Case details for

People v. Tinoco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OMAR TINOCO, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Sep 16, 2008

Citations

No. B199698 (Cal. Ct. App. Sep. 16, 2008)