(Super. Ct. No. 08F05656)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Along with six others, defendant Tony Armstrong was charged with murdering Jose Guerrero on Memorial Day in 2008. There was no evidence defendant was present when Guerrero was shot to death; instead, the prosecution contended defendant was guilty of the murder because just before the shooting, he aided and abetted the offense of fighting or challenging another person to fight, and the murder was the natural and probable consequence of that target offense. The jury found defendant guilty of first degree murder, and the trial court sentenced him to 50 years to life in prison.
On appeal, defendant contends: (1) there was no substantial evidence he aided and abetted the target offense; (2) the jury instructions on the natural and probable consequences doctrine were erroneous; and (3) his trial attorney was ineffective for failing to object to improper opinion testimony from a gang expert and improper argument by the prosecutor.
We conclude the evidence was sufficient to support defendant's conviction and defendant has failed to prove he received ineffective assistance of counsel; however, we agree the jury instructions were erroneous because they did not allow the jury to consider whether defendant might have been guilty of only second degree murder under the natural and probable consequence doctrine, even if the shooter committed first degree murder. Consistent with our prior decisions on this issue, we will reverse defendant's conviction and remand for a retrial unless the People accept a reduction of the conviction to second degree murder.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Jose Guerrero, lived on Lindley Drive in Sacramento, in an area known as the Flats. At the time of his death, he had lived there for about eight years with his wife, Celica Cardenas, and their children.*fn1
The Flats is predominantly controlled by two street gangs, the Nortenos and the Bloods, both of which identify with the color red. The Nortenos and the Bloods are known to associate with each other in the Flats. There are also Surenos in the area, however. The Sureno street gang, which identifies with the color blue, is the main rival of the Nortenos. A Norteno gang member would take it as a sign of disrespect if a Sureno gang member wore blue in a Norteno neighborhood, and such an act could lead to a verbal or physical confrontation.
The house where Guerrero and Celica lived with their children was on the north side of Lindley between Grove Avenue to the east and Edgewater Road to the west. The house was known in the Flats as being associated with the Surenos. In fact, Celica's 21-year-old son, Federico, who had been living in the house off and on up until the time of the shooting, was a validated Sureno gang member.
Defendant is a validated member of the Del Paso Heights Bloods who goes by the nickname "T Blood." Among others, he has a tattoo on his stomach that reads, "Hood Boss," a tattoo on his left forearm that reads, "Da Flats," and a tattoo on his back that reads, "Blood 4 Life."
Defendant was known to associate with Norteno gang members. In particular, he was friends with Noe Ortiz, a Norteno associate who lived on the northwest corner of Lindley and Edgewater, down the street from Guerrero's house. Defendant was also friends with Jose Gonzalez (also known as Pepe), a friend of Noe's who is a validated Norteno gang member. Defendant and Pepe sold "weed" back and forth to each other.
Noe and Pepe were part of a group of friends -- all of whom are associated with the Norteno gang -- who went to Grant High School and hung out together. The other members of the group were Pepe's brother, Juan Carlos Gonzalez (also known as Cho Che); Jaime Torres; Jaime's brother, Hugo Torres; Jaime and Hugo's uncle, Sergio Torres; and Mario Vargas. Jaime, Hugo, Sergio, and Vargas are all Norteno gang members (Vargas is validated), and Juan Carlos is a Norteno associate.
In the early evening on Memorial Day in 2008, Guerrero was sitting out in front of the open garage door of his house visiting with a friend and the friend's two children. One of the friend's children, Christian, who was 15 years old, was wearing a blue baseball cap and long blue shorts.
While they were sitting there, Christian noticed a Hispanic male drive by twice on a four-wheeled motorcycle, staring and "giving [them] a bad look." Fifteen to 30 minutes later, Christian saw a blue car with four or five people in it driving past from east to west. The person in the front passenger seat, who was wearing a red bandana covering his nose and mouth, was leaning out of the car window flashing a gang sign -- specifically, an "L" made with his thumb and forefinger, which Christian understood to be a Norteno gang sign signifying the "l" in Gardenland. The car was initially going fast as it approached Guerrero's house, but it slowed down for the speed bump in the street just beyond Guerrero's driveway, then sped away.
Around this same time (7:00 p.m.), down Lindley to the west, about three houses west of the intersection with Edgewater, Luis Cabrera was in his front yard barbecuing when he saw a blue Chevrolet four-door "going really fast" westward on Lindley with "somebody hanging out the window." Cabrera could tell the driver was a black man, but could not tell more than that because the car was going too fast; he did, however, recognize the car as one defendant regularly drove. (Other evidence confirmed that the blue Chevrolet Lumina with the grey hood was defendant's car.) The person hanging out the front passenger window was a Hispanic male who had a "red rag" covering his face and was throwing gang signs. The car drove past Cabrera's house and out of sight.
Thinking that the guy wearing the red rag going by Guerrero's house might be some kind of gang challenge, Cabrera walked from near his front door, where he was standing when the car went by, to the sidewalk and looked back up the street. There, he saw two cars parked near the intersection of Lindley and Edgewater -- a white car he did not recognize and a two-tone Chevelle he recognized as one that Pepe drove. He also saw four or five Hispanic males, including "the guy with the rag on his face," "[k]ind of like power walking" from out of his view on Edgewater, turning up Lindley toward Guerrero's house, pulling up their pants and cinching their belts as if they were preparing for a fight.*fn2 Cabrera recognized Pepe as being among that group.
Cynthia Gutierrez, Noe's girlfriend at the time, lived on the south side of Lindley, approximately midway between Guerrero's house and the intersection of Lindley and Edgewater. She was sitting in a car in front of her house with a friend when she saw Pepe and Jaime, who had a red bandana on his face, walking fast up Lindley toward Guerrero's house. They looked mad and like they were about to fight. Gutierrez moved the car down the street and parked in front of the friend's house, which was across the street and two houses down from Guerrero's house. When she got out of the car, Gutierrez saw Jaime and Guerrero yelling at each other.
Meanwhile, about 10 minutes after the blue car drove past Guerrero's house, Christian saw "like 15" or "like 20 people" walking up to the house from the west. One of them, who was wearing a red bandana on his face and whom Christian thought was the same person who had leaned out of the blue car when it drove by, came onto the sidewalk, while the others remained in the street. (Based on Gutierrez's testimony, and other evidence, the person with the red bandana on the sidewalk was Jaime.) Jaime said, "where are your cousins," then began moving up the driveway cursing repeatedly, "where are the fucking scraps?" "Scrap" is a derogatory word for a Sureno. At some point, Jaime, who was in the middle of the driveway, stared at Christian, who was wearing blue, pulled out a gun and showed it to them, then put it back. Jaime then backed up.
When Guerrero saw the gun, he stood up and took out his cell phone and announced two or three times that he was calling the police. Jaime told him not to call the police, that they only wanted to talk to "the cousins" -- which Christian understood to refer to Celica's sons, Roberto and Federico. When Guerrero did not put down the phone, Jaime took out his gun again and pointed it at Guerrero. Guerrero dropped his cell phone and rushed at Jaime, then grabbed him and started wrestling with him. The struggle moved from the driveway, onto the sidewalk, and into the street. As Guerrero struggled to get the gun, the bandana slipped from Jaime's face, and he struggled to pull it back up. Guerrero managed to hit the gun and knock it out of Jaime's grasp into the street, where the rest of the group was standing. One of the members of the group picked up the gun and approached to where Guerrero and Jaime were still struggling against each other. He pointed the gun at Guerrero and fired once, but missed. He fired a second time, and the bullet struck Guerrero in the head, penetrating through his brain into his neck. Guerrero immediately fell forward on his face and later died at the hospital from the gunshot wound.
Meanwhile, when Guerrero fell, Jaime and everyone else in the street ran back down Lindley toward Edgewater. Vargas (who testified at trial under a grant of immunity) admitted to police he was outside Noe's house with Noe, Pepe, Juan Carlos, Hugo, and Sergio. He claimed he remained at the corner, and while he said he did not remember whether his friends walked up the street, he did tell the police they came running back, and Jaime said "'[m]an, that guy just shot.'"
According to Vargas, he, Pepe, Juan Carlos, Sergio, and Hugo fled in the Chevelle, while Jaime left in another car. On a nearby street (Arcade Boulevard), the Chevelle got stuck briefly on a tree stump that was in the road. When the two front occupants got out of the car, they were holding large beer bottles. They managed to free the car from the stump and drive away, but they left one of the beer bottles behind, as well as a trail of fluid from the car. The next morning, the police followed the trail to the home of Pepe and Juan Carlos.
Meanwhile, about three to five minutes after the Chevelle drove away leaving the beer bottle behind, a police car came by and the witness who saw the Chevelle pointed the police in the direction the car went. The police officer immediately departed without further conversation. A minute or so later, another police officer came by, and the witness told that officer what she had seen. The officer told her to watch the bottle, then left in the direction the other officer had gone.
Five or 10 minutes later, a black SUV came by. Defendant was one of the occupants of the SUV. As the SUV was driving down Arcade, defendant told the driver to stop. When the SUV stopped, defendant got out and picked up the beer bottle that had been left behind by the occupants of the Chevelle, then got back in the SUV. During the incident, the witness watching the bottle heard someone in the SUV say, "Get that bottle so they can't get any prints off it."
In September 2008, the People charged defendant, Pepe, Juan Carlos, Noe, Hugo, Jaime, Sergio, and Vargas with Guerrero's murder. (The People later dropped the charge against Vargas and granted him immunity for his testimony.) The information included allegations that at least one principal intentionally and personally discharged a firearm, causing death, and that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang.
The prosecution's theory against defendant was that defendant aided and abetted the crime of fighting or challenging another person to fight by driving some of the Nortenos by Guerrero's house just before the confrontation, and the murder of Guerrero was a natural and probable consequence of that target offense.
The jury found defendant guilty of first degree murder and also found the firearm use and gang enhancement allegations true. The trial court imposed a sentence of 25 years to life on the murder charge and a consecutive sentence of 25 years to life on the firearm use enhancement.*fn3 Defendant timely appealed.
Sufficiency Of The Evidence
Defendant contends his murder conviction must be reversed because there was insufficient evidence he aided and abetted the target offense of fighting or challenging another person to fight (Pen. Code, § 415, subd. (1)).*fn4 More specifically, defendant asserts "there was grossly insufficient evidence . . . that [he] had knowledge of the perpetrator's purpose to commit the target offense, that [he] had the intent of at least encouraging or facilitating commission of the target crime and that [he] acted to aid, promote, encourage or instigate the commission of the crime."
As we will explain, we disagree. Although the evidence was circumstantial, that evidence, when viewed in the light most favorable to the jury's verdict, was nonetheless sufficient to allow the jury to conclude three things beyond a reasonable doubt. First, the jury could have reasonably concluded that defendant aided, promoted, or encouraged his Norteno gang member friends to commit the offense of fighting or challenging another person to fight when he drove some of them by Guerrero's house, then dropped them off just down the block, from where they immediately proceeded to Guerrero's house for the confrontation that resulted in Guerrero's death. Second, the jury could have reasonably concluded that when defendant drove by Guerrero's house and dropped his cohorts off nearby, he knew they intended to pick a fight with Guerrero or with other persons at the house. And third, the jury could have reasonably concluded that when he drove by Guerrero's house and dropped his companions off, defendant intended to aid, encourage, or facilitate their commission of the crime of fighting or challenging another person to fight. Accordingly, the evidence was sufficient to convict defendant of murder as an aider and abettor under the natural and probable consequences doctrine.
"Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. [Citations.] Consequently, '"all intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there sufficient substantial evidence to support it."'" (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
"'In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence." (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.)
"'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."'" (People v. Bean (1988) 46 Cal.3d 919, 933.) "'An appellate court must accept logical inferences that the [finder of fact] might have ...