(Super. Ct. No. 09F08955)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sixteen-year-old victim Francisco Medina-Tomas was killed in a gang shooting at an apartment complex in Sacramento. A jury found defendant Juan Gonzalez guilty of first degree murder and found true a gang enhancement and an enhancement that a principal personally discharged a firearm. The jury found not true an enhancement that defendant personally discharged the firearm. The theory of defendant's guilt was that he was an aider and abettor to the lesser crime of disturbing the peace or issuing a challenge to fight, the natural and probable consequence of which was murder.
On appeal, defendant raises six contentions relating to the evidence, instructions, and the prosecutor's arguments to the jury. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, a member of the Norteno gang called the Gardones, was at an apartment complex in Sacramento in November 2009 at around 9 p.m. or 10 p.m., to buy some marijuana. The apartment complex was the turf of a subset of the Sureno gang called Bario Sur Trece, or BST, which was a rival gang of the Nortenos. Three men, all of who were BST members and one of who was defendant, came up to the victim. They fired multiple shots at him. The fatal shot pierced the victim's lower back, ruptured his spinal cord and pulmonary artery, and came to rest at the base of his neck.
According to the version of the shooting most favorable to defendant, which was provided by fellow BST gang member Efren Gonzalez, defendant and his fellow gang members "hit . . . up" the victim, meaning, they asked him what gang he claimed. The victim responded, "Gardones." Defendant said he "was going to beat [the victim's] ass" to get the victim to leave the apartment complex. However, "out of the blue," "before anyone could even swing," one of the other BST members whose nickname was Psycho pulled out a gun. Defendant "[t]ried to stop [Psycho]" by "[t]r[ying] to grab the gun from [him]." "He tried to prevent it, but [Psycho] just wanted to prove himself and there [wa]s nothing much [defendant] c[ould] try to do." BST had a gang gun that bounced around from member to member and was used for protection.
The Court Correctly Did Not Instruct
On The Defense Of Withdrawal
Defendant contends the court erred in failing to instruct sua sponte on the defense of withdrawal. He is wrong because there was no substantial evidence to support the defense.
"To be entitled to an instruction on the withdrawal defense, a defendant charged with aiding and abetting a crime must produce substantial evidence showing that (1) he notified the other principals known to him of his intention to withdraw from the commission of the intended crime or crimes, and (2) he did everything in his power to prevent the crime or crimes from being committed." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
Here, defendant cannot prove even the first prong. The intended crimes were fighting or challenging to fight and/or disturbing the peace. According to the version of the shooting most favorable to defendant, he and his fellow gang members asked the victim what gang he claimed. The victim told them he belonged to their rival gang. Defendant told Gonzalez "[defendant] was going to beat [the victim's] ass" to get the victim to leave the apartment complex. However, "out of the blue," "before ...