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The People v. Brian Dean Hedlin et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


December 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRIAN DEAN HEDLIN ET AL.,
DEFENDANTS AND APPELLANTS.

San Mateo County Super. Ct. Nos. SC059521, SC155260

The opinion of the court was delivered by: Jones, P.J.

P. v. Hedlin CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted appellants Shawn and Brian Hedlin of first degree murder (Pen. Code, § 187),*fn1 attempted murder (§ 664/187), false imprisonment (§ 236), and first degree burglary (§ 460, subd. (a)). The jury also convicted Shawn of unlawful possession of a firearm (§ 12021, subd. (a)(1)) and found various sentencing enhancements true as to both appellants. The court found appellants' prior conviction allegations true and sentenced them to state prison.

On appeal, appellants contend the court erred by denying their Batson/Wheeler,*fn2 mistrial, and new trial motions. In addition, Brian contends: (1) the denial his motion for severance deprived him of due process of law; (2) the court violated his due process rights by instructing the jury on murder as a natural and probable consequence of aiding and abetting an assault with a firearm; (3) the court's failure to instruct the jury on implied malice second degree murder violated his constitutional rights; and (3) the jury likely misunderstood or misinterpreted the court's instruction on the attempted murder special allegation.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We provide only an overview of the facts here. We provide additional factual and procedural details as germane to the discussion of appellants' specific claims.

Prosecution Evidence

In January 2005, Eduardo Zaparolli, who went by the nickname, "Bulldog," was living in a third floor apartment in South San Francisco with Gregorio Chicas. Zaparolli was dating Nelia Lopez; Chicas was dating Jeanette Briones.

Zaparolli crashed his mother's minivan several times in 2003. On one of those occasions, Zaparolli was driving and Brian was in the passenger seat. Zaparolli crashed the minivan and then "bailed from the scene" because he was "drunk." Brian was angry, but Zaparolli did not care because Zaparolli had "taken the rap for [Brian] at various times."

One evening in late January 2005, Zaparolli was "hanging out [and] drinking" with Brian and his girlfriend, Veronica Moreira. At 2:00 or 3:00 a.m. -- when Zaparolli was "really drunk" -- he spilled his beer and it splashed up and hit Brian's daughter. When Brian started to complain, Zaparolli told him that his daughter should not be up so late. The two men began to fight and Brian hit Zaparolli. Zaparolli did not remember how the fight ended; he thought he passed out from drinking too much.

On January 30, 2005, Lopez and Zaparolli went to bed in Zaparolli's bedroom at the end of the hallway. Chicas and Briones slept in the front bedroom. In the early morning on January 31, 2005, Zaparolli heard people "beating" on the front door of the apartment. Chicas answered the door and repeatedly asked who was there. He did not receive a response. When Chicas opened the door, he saw Shawn Hedlin. Appellants repeatedly asked Chicas, "[W]here is Bulldog?" Appellants argued with Chicas, and then there was a gunshot. Briones ran out of Chicas's bedroom when she heard the gunshot. She saw Chicas lying on the living room floor. Appellants asked Briones, "[W]here is Bulldog, where is Bulldog?" Briones screamed and was shot in the center of her forehead. She lost consciousness.

Shortly thereafter, Zaparolli's bedroom door was kicked open. As the door opened, Lopez saw appellants. She saw Shawn first: he was holding a gun in his right hand, and he "went straight to Bulldog." Zaparolli tried to bundle himself with blankets to absorb the impact from a gunshot. Zaparolli wrestled with Shawn and tried to keep the gun out of Shawn's hand. The gun fired, hitting Zaparolli in the back. Shawn fumbled as he tried to re-load the gun; Brian kicked Zaparolli in the head and wrestled with him. At that point, Brian said, "'[S]hoot him, shoot him, shoot him, finish him off.'" As Zaparolli lay on the ground, Shawn aimed his gun and shot Zaparolli "about three times." Zaparolli heard appellants laughing; Shawn stood over Zaparolli and laughed as he pointed the gun in Zaparolli's face. When Shawn ran "out of bullets," Zaparolli was able to get away.*fn3

As Lopez tried to get out of the bedroom, she saw Brian standing in the hallway, staring into the bedroom. He looked "angry" and as though he might be "on something." Brian would not let Lopez leave the bedroom. She told Brian "to think about what he was doing and to talk to [Shawn], tell him to stop, think about his daughter" but Brian "wouldn't budge." Finally, Lopez was able to get out of the bedroom. As she ran to the bathroom, she saw Chicas and Briones's bodies on the floor. Lopez jumped out of the bathroom window, hitting the ground three stories below and breaking her back. After some time, she got up and walked away, looking for help. She saw Brian running toward her, and she heard Shawn say, "'[G]et her.'" She turned a corner and began knocking on doors for help.

Police officers responded to neighbors' 911 calls and went to Zaparolli's apartment at approximately 3:10 a.m. They saw Chicas, dead in a pool of blood, and Briones in the hallway, mumbling and moaning. The officers had difficulty understanding what Briones was trying to say, but when they asked her, "[W]ho did this," she clearly said, "Shawn." Officers also spoke to Zaparolli, but he was uncooperative and would not tell them who shot him.*fn4 Several days after the incident, Zaparolli found two containers of gasoline on the front door of the apartment. Surveillance video from a gas station in South San Francisco showed Moreira paying for approximately two gallons of gas at approximately 3 a.m. on January 31, 2005.

Brian was arrested at approximately 8:30 a.m. on January 31, 2005. He did not have any "fresh injuries" on his hands. That same morning, Shawn asked his father to drive him to the bus depot in San Francisco so he could take a bus to Los Angeles to visit his aunt. Police officers stopped Shawn as he and his father were driving on Highway 280 and arrested him. Shawn had no injuries on his hands or face. Officers searched the car and found a "nylon bag that contained clothing and toilet articles, traveling articles." Officers searched Shawn's father's apartment and found Zaparolli's driver's license and ammunition.

Chicas's autopsy indicated he had been shot in the left shoulder and in the forehead. The gunshot to Chicas's forehead was fatal. There was strippling around the forehead wound, which indicated the barrel of the gun was about a foot or possibly two feet from Chicas when it was fired. An evidence technician examined Moreira's car and found a blood stain on the backseat. The blood was Zaparolli's.

Brian's Evidence

Moreira testified for Brian under a grant of immunity. She is Brian's fianceee and the mother of his daughter. About a week before the incident on January 31, 2005, she and Brian were at a social gathering with several friends, including Zaparolli. Late in the evening, Zaparolli came up to Moreira, hit her on the head "for no reason," and spilled beer on her daughter, who started crying. Zaparolli refused to apologize. This made Brian mad, and he and Zaparolli fought. Later, Moreira told Shawn what happened.

On January 30, 2005, Moreira went to a liquor store with appellants and one of appellants' friends. They purchased beer, dropped off appellants' friend at his house, and went to Moreira's mother's house. There, Moreira had two Ciscos -- a flavored, "strong liquor" -- with appellants and went to bed at approximately 11:30 p.m. Before she went to bed, she talked with appellants about the incident with Zaparolli. The conversation was brief. Shawn said he was surprised Zaparolli "had no respect." Some time later, appellants came into Moreira's room and woke her because they wanted to drive her car to Zaparolli's. Appellants told Moreira they wanted to go to Zaparolli's home to "get an apology and kick his ass." Moreira refused to give appellants her keys because they were drunk. Later, appellants returned to Moreira's room and bugged her to take them to Zaparolli's house. She agreed.

When appellants got into Moreira's car, Brian said he needed gas for his truck and put two empty jugs into the car. As Moreira drove toward Zaparolli's apartment, she stopped at a gas station where Brian filled up the jugs with gas. Moreira drove to Zaparolli's. When they arrived at Zaparolli's apartment at 3:00 a.m. on January 31, 2005, Moreira and Brian argued about the smell of gas in the car.

Appellants got out of the car; Shawn carried the gas containers as appellants walked to Zaparolli's apartment. Moreira waited in the car. About 10 or 15 minutes later, she heard gunshots and screaming. Appellants returned to the car. Immediately thereafter, Brian appeared "[s]erious" and said, "'[h]e or Greg [Chicas] didn't deserve that, this shouldn't have happened.'" In response, Shawn said, "'don't worry you didn't do nothing, it's all on me.'" Moreira drove appellants to her mother's house and went to bed at 3:30 or 4:00 a.m. At 7:00 a.m., she drove Brian to work. When Moreira talked with the police later that afternoon, she lied about appellants' whereabouts to protect Brian.

Brian's blood alcohol level at approximately 9:00 a.m. was .12. According to forensic toxicologist Kenneth Mark, Brian's blood alcohol level would have been approximately .20 to .22 at 3:00 a.m. on January 31, 2005. A blood alcohol level of .20 affects vision, depth perception, and hearing. It also impairs judgment and sensory input. A person with a .20 blood alcohol level could "be completely out of it."

Shawn's Evidence

Shawn testified that he and Brian drove to Moreira's mother's house at approximately 11:00 p.m. on January 30, 2005. Appellants "sat around [and] drank" until they became intoxicated. While appellants drank, they talked about the incident between Brian and Zaparolli. Shawn thought Zaparolli had been disrespectful and wanted to go to Zaparolli's house to "hash things out . . . to resolve it" because Zaparolli had been like a brother to appellants. Brian did not want to go to Zaparolli's apartment -- he wanted to stay away from Zaparolli. Brian eventually relented because Shawn "kept nagging at him." Shawn did not plan on beating Zaparolli up and denied there was a plan to attack Zaparolli or anyone else in the apartment.

After they decided to go to Zaparolli's apartment, Brian woke Moreira, who had been sleeping in her bedroom. Moreira drove appellants to Zaparolli's apartment because appellants were drunk. Along the way, they stopped at a gas station to get gas for Brian's truck. Brian filled up two one-gallon containers of gas, and Shawn held the containers in the backseat of the car. When they arrived at Zaparolli's house, Moreira and Brian argued about the smell of gasoline in the car. At that point, Shawn got out of the car with the gasoline containers and walked up to Zaparolli's front door. He put the containers down and pounded on the door. Shawn brought the gas containers with him to the front door because the gas was making Moreira's car smell.

Chicas answered the door. He was mad. As he opened the door, he said, "'mother fucker, do you know what time it is?'" Shawn told Chicas he wanted to speak to Bulldog; in response, Chicas said he was "tired of this shit" and pointed a gun at Shawn. Shawn lunged at Chicas and tried to get the gun. Shawn and Chicas began wrestling and fighting. As they struggled down the hallway, shots were fired. As they wrestled, Briones jumped on Shawn's back. The gun fell to the ground and Shawn picked it up. He started shooting because he was scared and because he did not understand why Chicas and Briones had "turned" on him.

Then Shawn ran into Zaparolli's room at the end of the hallway. He pushed or kicked the door open because he wanted to get help and talk to Zaparolli. Zaparolli, who was standing on the bed, threw a blanket at Shawn and grabbed him. As Shawn and Zaparolli began to wrestle, Shawn hit Zaparolli with a gun and it fired. Shawn did not shoot Zaparolli, but he saw that Zaparolli was wounded. Shawn dropped the gun and ran out of the apartment. As he was leaving, he saw Brian staring at him.*fn5 Shawn did not remember seeing Chicas laying outside of Zaparolli's bedroom door. Shawn did not intend to attack Zaparolli, Chicas, or Briones.

Appellants ran to the car where Moreira was waiting. They jumped in the car and Moreira drove back to her mother's house. When they reached the house, Moreira went to her room. Appellants stayed in the garage, talking. Brian asked Shawn what had happened and what Shawn was going to do. Later that morning, Moreira drove Brian to work. Shawn decided to go to Los Angeles for several reasons. First, he was on parole for a robbery conviction and he did not want to go back to jail for a parole violation. Second, he was living with his parents and he worried that if Zaparolli retaliated against him, he would jeopardize his parents' lives.

Verdicts and Sentencing

The jury convicted appellants of first degree murder (§ 187) with premeditation and deliberation, attempted murder (§ 664/187), false imprisonment (§ 236), and first degree burglary (§ 460, subd. (a)). The jury also convicted Shawn of unlawful possession of a firearm (§ 12021, subd. (a)(1)). The jury also found various sentencing enhancements true -- including the special allegation that the attempted murders were committed with premeditation and deliberation -- as to both appellants. The court found appellants' prior conviction allegations true and sentenced them to state prison.

DISCUSSION

The Court Properly Denied Appellants' Batson/Wheeler Motion

During jury selection, Juror No. 11 stated he is a minister.*fn6 He stated he could be fair and impartial because he viewed inmates as the same as "everybody else." Hearing about the charges against Shawn did not affect Juror No. 11 because he was involved with people in the criminal justice system: each week, he led a "church meeting" with inmates in the San Francisco County jail. Juror No. 11 first began ministering to inmates in Chicago, where he encouraged inmates in a maximum security jail to listen "to the gospel."

Juror No. 11 stated he does not judge the prisoners he comes into contact with because "we are all guilty of sin." When asked whether he would be able to cast a guilty verdict if the prosecutor satisfied his burden of proof, Juror No. 11 stated, "Yes. . . . I prefer not to, but I won't let that get in the way because . . . that's part of life. . . . Once again, I prefer not to." Juror No. 11 explained that he would rather not "be here," but also stated that he did not think his call to minister to inmates would "get in the way" of serving as a juror. The prosecutor excused Juror No. 11.

Juror No. 16 grew up in the Bay View Hunters Point neighborhood of San Francisco. She now lives in San Mateo, where she works as a behavioral counselor with children and young adults with severe mental disabilities. She has several cousins who were convicted of attempted murder and murder in "shooting cases" in San Francisco and Contra Costa counties. She did not attend the court proceedings, however, or follow those cases. Juror No. 16's uncle was in prison for over 12 years "for something he didn't do and that got overturned."

Two of Juror No. 16's family members were murdered but she did not attend their funerals. Her uncle is a correctional officer and at least one of her aunts works at San Francisco's Hall of Justice "enter[ing] warrants in the system." Juror No. 16 stated that nothing would impair her ability to be fair and impartial and that she would be able to say "no" to the prosecution if the prosecutor did not prove the case beyond a reasonable doubt. Juror No. 16 stated she would not be affected by evidence about gangs or murder and would not have a problem if one of the defendants had tattoos or a felony conviction. She also said she did not disagree with the right to use deadly force in self-defense. The prosecutor excused Juror No. 16.

After the prosecutor excused Juror Nos. 11 and 16, counsel for Shawn made a Batson/Wheeler motion. Counsel explained that the prosecutor was using his peremptory challenges in a racially discriminatory manner "in that there have only been two African Americans . . . that have been questioned . . . and it doesn't appear to me that there is any basis, any bias shown by [Juror No. 16] that would be a basis for a challenge other than her race." Counsel for Brian joined the motion as to Juror No. 16.

The court concluded counsel had made a prima facie case and asked the prosecutor to state his basis for having challenged the jurors. The prosecutor explained that he excused Juror No. 11 because he was "a priest who is in the business of saving souls" and who "works for convicts[.]" The prosecutor noted that he excused Juror No. 16 for several reasons. First, she was "touched by the criminal justice system" and had family members who had been victims of crime, and others who had been convicted of crimes, including an uncle who was "falsely convicted[.]" Second, Juror No. 16 might have sympathy for appellants because of her youth and because she was in a profession where she empathized with people. Third, Juror No. 16 might not be willing to believe the prosecution witnesses because she grew up in Bay View Hunters Point, which "is a gang infested violent section of San Francisco, where the police are challenged every day, they are shot at, [and] they don't have the support of the community."

After considering the prosecutor's explanations, the court denied the Batson/Wheeler motion. The court began by stating that the parties' attorneys had appeared before him for at least 15 years and that he held all of the lawyers in "high esteem[.]" The court noted it did "not for a moment believe" the prosecutor harbored "improper or untoward motives [for] seeking to exclude" Juror Nos. 11 or 16, and noted that it accepted at face value the prosecutor's reasons for excusing both prospective jurors. The court explained that Juror No. 11 "volunteered at the San Bruno jail . . . in counseling, administrating to defendants who are incarcerated there," and said that there were "a bevy of reasons why" either the prosecution or the defense could have excused Juror No. 16. Finally, the court concluded there was no racial motivation for excusing the jurors.

The state and federal Constitutions forbid a prosecutor from excluding prospective jurors from the jury for a purposefully racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The prosecution may not exercise peremptory challenges solely on the basis of presumed group bias, i.e., on the presumption "jurors are biased merely because they are members of an identifiable group distinguished on racial . . . or similar grounds[.]" (Wheeler, supra, at p. 276.)

The following procedure applies to a Batson/Wheeler challenge to a peremptory strike: "'"First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'"'" (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also Johnson v. California, supra, 545 U.S. at p. 168.)

"The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People's case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.].' [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.) "'Even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 613.)

Our review of a lower court's denial of a Batson/Wheeler motion is deferential. Lenix, supra, 44 Cal.4th at p. 626.) "'We review the trial court's ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.'" (Zambrano, supra, 41 Cal.4th at p. 1104; People v. Turner (1994) 8 Cal.4th 137, 165, overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 ["There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner"].) "Since the trial judge's findings [on this issue] largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference" (Batson, supra, 476 U.S. at p. 98, fn. 21), "recogniz[ing] that such a ruling 'requires trial judges to make difficult and often close judgments.'" (Wheeler, supra, 22 Cal.3d at p. 281.) Acknowledging these determinations of credibility and demeanor lie "peculiarly within a trial judge's province," the United State Supreme Court has stated that in making such decisions "'in the absence of exceptional circumstances, [it] would defer to [the trial court].' [Citation.]" (Snyder v. Louisiana (2008) 552 U.S. 472, 477.)

Appellants contend the court erroneously denied their Batson/Wheeler motion because the prosecutor's reasons for excusing Juror Nos. 11 and 16 were not believable. (See Reynoso, supra, 31 Cal.4th at p. 916 ["[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination"].) We disagree. A "prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause. . . ." (People v. Pinholster (1992) 1 Cal.4th 865, 914, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) It is not implausible the prosecutor would harbor an honest concern that Juror No. 11, a person who counsels inmates and who admitted he would "prefer not to" cast a guilty verdict, might be sympathetic to appellants. It is also not implausible that a prosecutor would think that Juror No. 16, who empathizes with people for a living, and who has extensive experience with the criminal justice system -- including family members who had been killed and others who had been convicted, perhaps wrongfully -- would be unfavorable to the prosecution's case. The prosecutor here had a legitimate, nondiscriminatory reason for excluding Juror Nos. 11 and 16: he believed they would be unfavorable to the People's case. Deferring, as we must, to the lower court's determination, we conclude substantial evidence supports the finding that the prosecutor's peremptory challenges of Juror Nos. 11 and 16 were not motivated by discriminatory intent. (People v. Cruz (2008) 44 Cal.4th 636, 661.)

Appellants also claim the court did not make a "'sincere and reasoned inquiry'" into the prosecutor's explanations for excusing Juror Nos. 11 and 16 and did not make a finding about the "genuineness of those explanations[.]" We disagree. The judge -- who was familiar with both attorneys because they had appeared before him numerous times -- observed the prosecutor and the jurors and listened to the prosecutor's race-neutral reasons for excusing both prospective jurors. In its lengthy comments on the record, the court made a "'sincere and reasoned attempt to evaluate'" the prosecutor's reasons for challenging Juror Nos. 11 and 16. (People v. McDermott (2002) 28 Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 386.)

The Court Did Not Abuse its Discretion by Denying Appellants' Mistrial and New Trial Motions

Before trial, the prosecution moved to admit evidence that appellants and their victims were members of the same gang. The prosecutor claimed the evidence was relevant to explain Zaparolli's reluctance to testify. Appellants opposed the motion. On June 1, 2007, the court deferred the admissibility determination until Zaparolli or another witness testified and made "gang membership relevant." The court excluded "other evidence of any other type of gang activity or membership either by the defendant or any witness" absent a further foundational hearing held outside the presence of the jury.

During voir dire, counsel and the court questioned prospective jurors about gangs and gang members. On March 10, 2008, the prosecutor gave his opening statement. He began: "Good morning to everyone. They didn't execute the person they intended. You see, the target in the morning of January 31st, 2005, was a person by the name of Eduardo Zaparolli. Instead, they killed Gregorio Chicas on the way to get Mr. Zaparolli. [¶] At that time in January, Mr. Zaparolli was living with Mr. Chicas . . . in an apartment . . . in South San Francisco. . . . With them in the apartment were their two girlfriends. Eduardo Zaparolli's girlfriend, Nelia Lopez, Gregory Chicas's girlfriend was Jeanette Briones. . . . They are all living together in this apartment. They are all working and they all knew each other or somehow were involved with the local gang called the Lomitas Park Locos, it's a Sureno gang. [¶] Mr. Zaparolli and Mr. Chicas had been active, Mr. Chicas may have been getting a little old for it, Mr. Zaparolli not so much. So that night in January on the 31st, the early morning hours, a couple of things brought the Hedlin brothers to that apartment. [¶] You see not only did the four people inside the apartment know each other, all four of those people knew the Hedlin brothers and knew them quite well. Had met them, had been out with them, been in the streets, been in their homes, been in their family homes. The Hedlins had been in that apartment before."

A. Appellants' Mistrial Motion

After the prosecutor finished his opening statement, appellants moved for a mistrial, contending the prosecutor's reference to gang participation violated the court's 2007 order that "no gang evidence was coming in absent further foundational hearing to establish its relevance." Appellants argued they were prejudiced by the reference to gang membership. In response, the prosecutor stated he did not realize the court's ruling applied to victims and witnesses. The prosecutor explained that he thought the court had excluded references to appellants' gang membership -- but not witnesses' gang membership -- until there had been a foundational hearing. The court denied the motion, concluding the prosecutor did not intentionally violate a court order. The court then admonished the jury that opening statements are not evidence.

Shawn contends the court should have granted his mistrial motion because the prosecutor committed prosecutorial misconduct. A trial court should grant a motion for mistrial "only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) We review the trial court's ruling on a mistrial motion for abuse of discretion. (Id. at p. 283.)

"'"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Prieto (2003) 30 Cal.4th 226, 260, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.) "Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.] . . . [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (Ayala, supra, 23 Cal.4th at p. 284, quoting People v. Ochoa (1998) 19 Cal.4th 353, 427.)

Here, the prosecutor stated that Zaparolli, Lopez, Chicas, and Briones were "involved" with the Lomitas Park Locos, a Sureno gang. The prosecutor explained that Zaparolli and Chicas had been active in the gang. He also said "a couple of things brought" appellants to the apartment on the night of January 31, 2005, and that the people in the apartment knew the Hedlin brothers "quite well." According to appellants, the prosecutor was implying that appellants were gang members.

While these isolated remarks violated the court's June 2007 order, they "did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness." (Prieto, supra, 30 Cal.4th at p. 260.) Even if we assume for the sake of argument that the alleged misconduct involved the use of "deceptive or reprehensible methods," there is not a reasonable likelihood that the jury applied the prosecutor's inadvertent remarks "in an objectionable fashion," particularly where the court instructed the jury on three separate occasions that it could use only the evidence presented in the courtroom to decide the facts and that nothing the attorneys said was evidence.*fn7 (People v. Clair (1992) 2 Cal.4th 629, 633 ["jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"].) Several other courts have reached the same result under similar circumstances. (People v. Hinton (2006) 37 Cal.4th 839, 903; People v. Cunningham (2001) 25 Cal.4th 926, 1002 [prosecutor's inaccurate assertions in opening statement were harmless where trial court instructed the jury that opening statements were not evidence]; People v. Wrest (1992) 3 Cal.4th 1088, 1108.)

Shawn's reliance on a single case, People v. Cardenas (1982) 31 Cal.3d 897, 903, is misplaced. In that case, the California Supreme Court concluded the trial court abused its discretion under Evidence Code section 352 by allowing the prosecution to introduce evidence that the defendant and his witnesses were affiliated with a gang. (Id. at p. 903.) The prosecutor cross-examined defense witnesses about their participation in a gang; "[t]wo of the male witnesses were asked to exhibit to the jury their gang tattoos." (Id. at p. 903.) Here, the prosecutor did not introduce any evidence that appellants were in a gang. Instead, he briefly mentioned during opening argument that the victims were "involved with" a local gang and the trial court repeatedly instructed the jury that the attorneys' statements were not evidence. Neither party introduced gang evidence at trial and the prosecutor did not mention gang affiliation in his closing argument. Cardenas is therefore inapposite. The prosecutor here did not commit prosecutorial misconduct and his conduct did not "irreparably damage[ ]" appellants' chances of receiving a fair trial. As a result, the trial court did not abuse its discretion by denying appellants' motion for mistrial. (People v. Welch (1999) 20 Cal.4th 701, 749, overruled in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82.)

B. Appellants' New Trial Motion

Before sentencing, appellants moved for a new trial, contending the prosecutor's misconduct deprived them of a fair trial and denied them due process. The court denied the motion. On appeal, Brian contends the court erred by denying the motion. Specifically, he contends the inference that he was in a gang was "devastating" to his case and denied him the opportunity to present a defense.

"'"The determination of a motion for new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."'" (People v. Delgado (1993) 5 Cal.4th 312, 328, quoting People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on other grounds as stated in People v. Guillan (1998) 18 Cal.4th 558, 564.) To determine "'"whether there has been a proper exercise of discretion on such [a] motion, each case must be judged from its own factual background."'" (Delgado, supra, at p. 328, quoting People v. Dyer (1988) 45 Cal.3d 26, 52.)

We have already concluded there was no prosecutorial misconduct. Contrary to Brian's argument, the purported inference that he was a gang member was not "devastating" to his case or so prejudicial as to establish a reasonable probability of a favorable outcome absent the inadmissible evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Neither party introduced evidence relating to gang membership at trial. What was "devastating" to Brian's case was likely the evidence that he: (1) went to Zaparolli's apartment with Shawn to "get an apology" and "kick [Zaparolli's] ass;" (2)

persuaded Shawn and Moreira to get gas on the way to Zaparolli's apartment, which created an inference appellants were going to burn down Zaparolli's apartment; (3) tried to prevent Lopez from leaving the bedroom where Shawn would shoot Zaparolli; (4) encouraged his brother to try to kill Zaparolli by yelling, "Shoot him, shoot him, finish him off;" (5) kicked Zaparolli in the head and wrestled with him as Shawn reloaded his gun; and (6) laughed as Shawn pointed the gun in Zaparolli's face. Accordingly, the court did not abuse its discretion by denying Brian's new trial motion. We reject Brian's contention -- unsupported by any relevant authority -- that he was denied the opportunity to present a defense.

The Court Did Not Abuse its Discretion by Denying Appellants' Motion for Severance

Before trial, Shawn moved for severance and Brian joined the motion. The basis of Shawn's motion was Moreira, Brian's girlfriend, would testify that immediately after the incident, Brian said, Chicas "didn't deserve this" and "that shouldn't have happened." Shawn claimed: (1) he and Brian had inconsistent defenses; (2) admitting Moreira's testimony would violate his due process and confrontation rights; and (3) he would be unfairly prejudiced in a joint trial because of Brian's prior arson conviction.*fn8 The court denied the motion.

In Shawn's opening statement, counsel stated Shawn would testify that he and Brian went to Zaparolli's apartment to settle a "simmering dispute" between Brian and Zaparolli. Counsel further stated that when he and Brian arrived at the apartment, Chicas had a gun and accosted Shawn "and a struggle ensued in which Mr. Chicas, Miss Briones and Mr. Zaparolli all were grappling with and fighting with Mr. Hedlin [Shawn]. [¶] It was terrible what happened, that these people were shot, but the evidence will show that the only thing . . . Shawn Hedlin [ ] is guilty of is defending himself."

Brian's counsel approached the bench and moved to sever. Brian contended severance was appropriate because his defense -- that he did not aid and abet in the murder of Chicas -- was inconsistent with Shawn's defense. He also argued severance was appropriate because joining his case with Shawn's would lead to "'guilt by association.'" The court denied the motion. The court explained that the concept of antagonistic defenses did not "per se require severance" and stated that there did not seem to be any evidence of antagonistic defenses "at least to this point, in terms of what's been proffered here." Finally, the court noted that a joint trial would not "interfere with any of the defendant[s'] rights." After Shawn testified, Brian renewed his motion to sever, again arguing that his defense was inconsistent with Shawn's. The court denied the motion. After the close of evidence, the court instructed the jury that it "must decide separately if each of the defendants is guilty or not guilty."

"Our Legislature has expressed a preference for joint trials." (People v. Burney (2009) 47 Cal.4th 203, 236.) Section 1098 provides in pertinent part, "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." Where, as here, "defendants are charged with having committed 'common crimes involving common events and victims' . . . the court is presented with a 'classic case' for a joint trial." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman), quoting People v. Keenan (1988) 46 Cal.3d 478, 499-500.)

"'The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a co-defendant, or if the defendants will present conflicting defenses.' [Citations.] 'Additionally, severance may be called for when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence."' [Citations.]" (Burney, supra, 47 Cal.4th at p. 236, quoting People v. Lewis (2008) 43 Cal.4th 415, 452.) We review the court's denial of appellants' severance motions for abuse of discretion. (Coffman, supra, 34 Cal.4th at p. 41.) "Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]" (Ibid.)

On appeal, Brian contends the joint trial with his brother deprived him of due process because his association with Shawn -- who had gang tattoos and was a convicted felon -- was prejudicial. There are several problems with this argument. First, the court instructed the jury "that it must consider separately the evidence against each defendant and reach a verdict as to each based solely upon the evidence admitted against him." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 152.) Second, the evidence against Brian was strong. "[T]his is not a situation in which a marginally involved defendant might have suffered prejudice from joinder with a co-defendant who participated much more actively." (Coffman, supra, 34 Cal.4th at p. 43.) Brian was not "marginally" involved in the crimes. He took an "active role" in the commission of the crimes -- he and Shawn went to Zaparolli's apartment to settle a dispute that arose when Zaparolli spilled beer on Brian's daughter. On the way to Zaparolli's apartment, Brian suggested that appellants buy gas. Brian filled up two containers with gasoline and appellants took the containers with them to Zaparolli's apartment. Brian aided and abetted Shawn in shooting three people in the apartment and tried to keep Lopez from getting away, presumably so that Shawn could shoot her also. In addition, he stomped and kicked Zaparolli's head, and encouraged Shawn to kill Zaparolli by yelling, "[S]hoot him, shoot him, finish him off." Finally, Brian and Shawn laughed as Shawn pointed the gun at Zaparolli. Shawn's gang tattoos and a prison record did not prejudice Brian or require severance.

Brian also claims it was an abuse of discretion to try him jointly with Shawn because his defense was incompatible with Shawn's. According to Brian, his defense was "substantial" while Shawn's defense was "absurd." We disagree. The defenses were not incompatible. Shawn testified Brian: (1) was not with him when he entered the apartment; (2) was not with him when he shot Chicas and Briones; and (3) did not come into Zaparolli's bedroom. Brian's defense centered on appellants' exchange in Moreira's car after the incident where Brian said Chicas "'didn't deserve that'" and Shawn replied, "'don't worry you didn't do nothing, it's all on me.'" Brian also claimed he was too drunk to have aided and abetted in the crimes. Appellant's defenses were not incompatible. Even if Brian's defense was somehow more believable than Shawn's, severance was not required. "Antagonistic defenses do not warrant severance unless the acceptance of one party's defense would preclude acquittal of the other. [Citations.]" (Burney, supra, 47 Cal.4th at p. 239.) Here, Shawn's defense was "not so irreconcilable" with Shawn's "that only one could be guilty." (Lewis, supra, 43 Cal.4th at p. 461.) Accordingly, the court did not abuse its discretion by denying Brian's severance motions.

The Court Properly Instructed the Jury on Murder as a Natural and Probable Consequence of Aiding and Abetting an Assault with a Firearm

The People charged Brian with murder and attempted murder on an aiding and abetting theory of liability. The court instructed the jury on direct aiding and abetting and on indirect aiding and abetting, where liability flows from aiding and abetting a target crime that reasonably, naturally, and foreseeably results in the charged crime. The court instructed the jury on the law of natural and probable consequences and specified the target offense was assault with a firearm in violation of section 245, subdivision (a)(2).

During deliberations, the jury sent the judge a note and the following discussion occurred:

"THE COURT: We are here on the record with counsel all present, and we have a note, . . . from the jurors. [¶] The note reads as follows: 'In regards to 3.00 Penal Code [section] 31, assuming both Defendants are principals in the crime, if we find one defendant guilty of murder in the first degree, can we find the second defendant guilty of murder [in] the second degree. Question mark.' There's a space, then it says, 'or do the degrees of murder need to be the same for each defendant. Question mark.' . . . My proposed answer to the first question would be 'yes,' and that would be it.

"COUNSEL FOR BRIAN: I think that's right, if we think it through.

"THE PROSECUTOR: Yes.

"THE COURT: Then just say NA for the second?

"COUNSEL FOR BRIAN: It's the same question.

"COUNSEL FOR SHAWN: Submitted.

"COUNSEL FOR BRIAN: So you answer 'yes' and then refer them back to the--

"THE COURT: I will say 'not applicable see above.'

"COUNSEL FOR BRIAN: Yeah, that sounds correct.

"THE PROSECUTOR: Yeah.

"THE COURT: So the Court will respond as follows: To the first question answer 'yes,' signed 'Judge Hall' and to the second question, it's just going to say 'see above, Judge Hall.' I will have that photocopied and returned to the jury."

The jury convicted appellants of first degree murder with premeditation and deliberation.

Brian does not attack the instructions on aiding and abetting or the instructions on the law of natural and probable consequences. Instead, he contends "it is a violation of due process, and . . . equal protection, to instruct on murder liability as a natural and probable consequence of aiding and abetting [an] assault with a deadly weapon." Brian contends the merger doctrine bars liability based on the natural and probable consequences of aiding and abetting an assault because the assault is an integral part of the murder.

To support this argument, Brian relies on People v. Chun (2009) 45 Cal.4th 1172, 1179. There, the defendant was one of four people in a Honda stopped at a traffic light. (Id. at p. 1179.) "[G]unfire erupted from the Honda" toward a Mitsubishi that was also stopped at the light; a passenger in the Mitsubishi was killed and two other people in that car were wounded. (Ibid.) "The Prosecution sought a first degree murder conviction. The court also court instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury found defendant guilty of second degree murder." (Chun, supra, at p. 1179.)

The California Supreme Court concluded the trial court erred by instructing the jury on felony murder as a theory of second degree murder. (Chun, supra, 45 Cal.4th at p. 1201.) The Chun court explained that when "the underlying felony is assaultive in nature, such as a violation of section 246 or section 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Chun, supra, at p. 1200.) The court held that "all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction." (Chun, supra, at p. 1178.) The Chun court also concluded that this error was harmless. (Id. at pp. 1205-1206.)

Chun does not apply here for several reasons. First, Chun was a felony-murder case. (Chun, supra, 45 Cal.4th at p. 1178.) This case is not. Second, in Chun, the court held that a defendant cannot be convicted of second degree felony-murder if he or she aided and abetted an assaultive crime. (Ibid.) The Chun court did not address the application of the natural and probable consequences doctrine, which "operates independently of the second degree felony-murder rule." (People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1178.) "The natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. Rather it is a theory of liability for murder that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. [Citation.]" (Id. at p. 1178.)

Third, and in contrast to the defendant in Chun, Brian was not convicted of second degree felony murder. Finally, several courts -- both before and after Chun -- have affirmed convictions for aiding and abetting assaults with a deadly weapon that resulted in murder. (Karapetyan, supra, 140 Cal.App.4th at p. 1178; People v. Francisco (1994) 22 Cal.App.4th 1180, 1189-1190; People v. Ayala (2010) 181 Cal.App.4th 1440, 1450.) Based on the foregoing, the court did not err by instructing the jury on murder liability as a natural and probable consequence of aiding and abetting an assault with a deadly weapon.

Even if we assume for the sake of argument that the court erred by giving the instruction, we would conclude the error was harmless because the evidence overwhelmingly demonstrated Brian possessed the intent to kill. (Chapman v. California (1967) 386 U.S. 18, 23-24.) He and Shawn spent the evening of January 30, 2005, drinking and talking about the incident with Zaparolli. In the early morning hours of January 31, 2005, Brian and Shawn told Moreira they wanted to go to Zaparolli's apartment to "get an apology and kick his ass." On the way to Zaparolli's apartment, it was Brian who suggested appellants buy gas and it was Brian who filled up two containers with gas. Appellants brought the gas containers to the apartment. Once inside, appellants repeatedly asked Chicas and Briones, "[W]here is Bulldog?" Brian helped his brother shoot the various occupants of the apartment: he tried to prevent Lopez from leaving Zaparolli's bedroom, presumably so that Shawn could shoot her, and stomped and kicked Zaparolli's head, encouraging Shawn to kill Zaparolli by yelling, "'[S]hoot him, shoot him, finish him off.'" And Brian laughed as Shawn pointed the gun at Zaparolli. Finally, he and his brother fled the apartment. This evidence compels the conclusion that appellants intended to kill the occupants of the apartment and burn them in it. The jury did not rely on the doctrine of natural and probable consequences to convict Brian of first degree murder.

The Court's Failure to Instruct on Implied Malice Was Harmless Error

The court instructed the jury on first degree premeditated murder. The court also instructed the jury on second degree murder as a lesser included offense, but did not instruct on implied malice as conscious disregard for life.*fn9

"'[S]econd degree murder is a lesser included offense of first degree murder.'" (People v. Taylor (2010) 48 Cal.4th 574, 623, quoting People v. Blair (2005) 36 Cal.4th 686, 745.) "'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements . . . that would support a conviction of first degree murder. [Citations.]' [Citation.] Malice may be express or implied. [Citation.]" (Taylor, supra, at pp. 623-624, quoting People v. Dellinger (1989) 49 Cal.3d 1212, 1215.) "Malice will be implied 'when the killing results from an intentional 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.]' [Citation.]" (Taylor, supra, at pp. 623-624, quoting Dellinger, supra, 49 Cal.3d at p. 1215.) A court must instruct, sua sponte, "on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.)

Brian contends the evidence of his mental state supported a finding of second degree implied-malice murder, which required the court to "instruct on this form of murder as a lesser-included offense." He does not discuss what evidence of his "mental state" or his "lack of premeditation" supported a second degree implied-malice murder instruction. Nor does he identify the dangerous act that he or Shawn undertook knowingly and in conscious disregard of Chicas's life. (See, e.g., Dellinger, supra, 49 Cal.3d at p. 1222.)

Brian relies on People v. Coddington (2000) 23 Cal.4th 529, 591-592,*fn10 where the California Supreme Court concluded the trial court erred by failing to instruct on an implied malice second degree murder theory because the evidence permitted an inference that the murder was not committed with premeditation, but "in a panic . . . to overcome the victims' resistance and stop the noise." (Id. at p. 592.) In Coddington, the defendant lured several women to a mobilehome with the promise that the women would appear in an antidrug video. (Id. at p. 547.) After one of the victims, Mabs Martin, pleaded with the defendant to let the victims go, the defendant put a pillowcase over Martin's head and placed plastic handcuffs around her neck. (Id. at p. 549, fn. 2, 550.) Martin died. (Id. at p. 547.)

The California Supreme Court explained that this evidence supported an inference that the defendant did not intend to kill Martin, only to keep her quiet, noting "[t]here was evidence here from which the jury could have inferred that appellant acted without the intent to kill even though his conduct posed a high risk of death[.]" (Coddington, supra, 23 Cal.4th at p. 593.) The court also concluded, however, "that the omission of complete instructions on the implied malice form of second degree murder was harmless error" because "[t]he evidence of intent to kill was overwhelming and, under properly given instructions, the jury found that the killings were intentional, premeditated, and deliberate. [Citations.]" (Id. at p. 593.) The court rejected the defendant's claim that the jury was forced to return a first degree murder verdict "even if it did not believe the killings were intentional and premeditated." (Ibid.)

In contrast to Coddington, Brian has not pointed to any evidence that would support a finding of an unintentional killing. But even if the court erred by omitting an instruction on implied malice second degree murder, any omission was harmless because there was ample evidence the killings were "intentional, premeditated, and deliberate." (Coddington, supra, 23 Cal.4th at p. 593.) Appellants spent the evening of January 30, 2005, drinking and talking about how they wanted to go to Zaparolli's apartment to "get an apology and kick his ass." On the way to Zaparolli's house, appellants stopped at a gas station; Brian filled two containers with gas, and appellants took the jugs with them to the front door of Zaparolli's apartment. This evidence created a strong inference that appellants intended to kill, and did so with premeditation and deliberation. Moreover, the court instructed the jury to give appellants the benefit of any doubt as to whether the murder was first or second degree. Accordingly, any error was harmless.

Brian's Claim Regarding the Jury Instruction on the Attempted Murder Special Allegation Has No Merit

The prosecutor charged appellants with, among other things, two counts of attempted first degree murder. Each attempted murder charged included a special allegation that the attempted murders were committed willfully, deliberately, and with premedidation within the meaning of section 189. The court instructed the jury on attempted murder and on the special allegation that the attempted murders were willful, deliberate, and premeditated. The jury convicted appellants of attempted murder and found the special allegations true.

Brian's last claim on appeal is the jury was likely confused by ambiguity between the jury instruction on murder as a natural and probable consequence of aiding and abetting and the instruction on the attempted first degree murder special allegations. His argument is difficult to follow, but he seems to contend it was likely the jury misinterpreted the instructions on natural and probable consequences as applying to the attempted murder special allegations.

We disagree. "'We presume that jurors understand and follow the court's instructions' [Citations] . . . ." (People v. Horvarter (2008) 44 Cal.4th 983, 1005; People v. Yeoman (2003) 31 Cal.4th 93, 139.) The cases Brian cites are inapposite and he has given us no reason to believe the jury was confused about the natural and probable consequences instruction or the attempted murder special allegation instruction or that the jurors "would be impervious to the formal technicalities of the criminal law."

DISPOSITION

The judgment is affirmed.

We concur:

Simons, J.

Needham, J.


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