APPEAL from a judgment of the Superior Court of San Joaquin County, George J. Abdallah, Jr., Judge. (Super. Ct. No. SF111155A)
The opinion of the court was delivered by: Butz , Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
After an initial jury deadlocked, a second jury, upon retrial, convicted defendant Eduardo Lisea of attempted murder, assault with a firearm, and criminal street gang participation, but acquitted him of permitting another to shoot from a vehicle. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(2), 186.22, subd. (a), and 12034, subd. (b), respectively.)*fn2 The jury also found true some gang enhancements, but found not true that defendant had personally used or discharged a firearm. Defendant was sentenced to state prison for 32 years to life.
The prosecution's main theory was that defendant--during a confrontation between his gang and a rival gang that resulted in the shooting of an innocent bystander--aided and abetted the offenses specified above, which were the natural and probable consequence of the offenses he had committed, disturbing the peace or simple assault.
In the published portion of this opinion, we conclude that defendant, as a convicted aider and abettor of the attempted murder under the natural and probable consequences doctrine, is a "principal" within the meaning of the section 12022.53, subdivision (e)(1) (hereafter section 12022.53(e)(1)) 25-year-to-life gang firearm enhancement. (§ 12022.53, subds. (a)(1), (18), (d) & (e)(1).)
In the unpublished portion of this opinion, we examine defendant's other challenges and find no basis for reversal. Those challenges focus on the natural and probable consequences doctrine, the evidence that a rival gang member may have been the shooter, and the trial court's failure to instruct on self-defense and on attempted voluntary manslaughter based on imperfect self-defense or heat of passion. Accordingly, we shall affirm the judgment.
On May 9, 2008, members of the Surenos and Nortenos street gangs clashed in the parking lot of a Stockton grocery store, resulting in an innocent bystander, then 18-year-old Christopher Smith, being shot in his right eye.
Independent Witness Accounts
The confrontation actually began inside the store when defendant, a Sureno, made provocative comments and threw gang signs to two Nortenos members, Jonathan Pimentel and Billy Ray Cook, amid Pimentel's display of colors (red).
The confrontation continued into the parking lot, with Cook shouting at defendant and his companions. Both groups then pushed shopping carts at one another. A bystander, referring to defendant's group, yelled "They have a gun." After this utterance, Pascual Pimentel (Jonathan's father and a member of the Nortenos group) displayed a "Norte" tattoo to defendant and his crew.*fn3
Two witnesses--N.D. (the victim Christopher Smith's then nine-year-old brother) and Justine Tango--saw Pascual run to a green SUV, grab a gun (Tango was not sure what was grabbed), and apparently run back to the altercation; shortly after this, these two witnesses heard three gunshots from positions of cover. Three other witnesses--Cynthia Stolt, Melissa Langford and Albert Harps--supported this account; these three witnesses, again, heard but did not see the firing. Another witness, Deyanira Andrade, saw Pascual run by her car and later heard three gun shots in rapid succession (although Andrade believed the shots came from the area in which defendant's group was congregating--she never actually saw a gun).
Four other witnesses--then 12-year-old A.H., Jesus Lomeli, Jose Lomeli, and the victim himself, Christopher Smith--saw gunshots being fired toward the Nortenos group at the front of the grocery store from defendant's blue Chevy pickup truck as it drove from the scene.
Finally, Juan Trejo saw the two groups arguing in the parking lot, and heard one of the arguers say, "Let's get out of here . . . . They have a cuete [Spanish for gun] in the truck." Trejo and his companion, Carlos Chitiva, later saw a man, who was wearing a red shirt, running through the parking lot alongside a Chevy pickup holding one hand in his waistband (as if he had a gun) and cursing. They both heard several rapid gunshots, which came from the parking lot behind them (they were facing the store).
The hands of Cook, Pascual, and Jonathan (i.e., the Nortenos members) tested positive for gunshot residue.
Two possible bullet strikes were found on the exterior front wall of the grocery store. Nearby, a mushroomed bullet (consistent with having hit a wall) was found; this bullet matched a bullet fragment removed from victim Smith's head--both were fired from the same gun, a .32 caliber.
About a month before the shooting, police officers found two bullet shell casings in defendant's Chevy pickup truck: a .32-caliber casing in the pickup bed, and a nine-millimeter casing in the driver's door pocket.
Defendant's Statements and Gang Evidence
In a police interview, defendant initially denied that anyone had fired a gun from his truck. Eventually, though, defendant said that as he pulled his truck out of the parking lot, two or three Nortenos chased after the truck on foot and reached into their clothing as if they were concealing something. After defendant turned right (apparently in exiting the lot), one of his passengers, "Cornejo," fired at the Nortenos from the middle of the front seat. Cornejo fired more than two shots. Defendant grabbed Cornejo's arm, trying to stop the firing and calm Cornejo. When they returned to defendant's house, defendant confronted Cornejo about the shooting.
In his trial testimony, defendant stated that he, Eric Espinoza, and Jose Pineda drove to the grocery store in his mother's 2006 Chevy/GMC truck. The altercation outside the store occurred, with the other group as the aggressor, pushing shopping carts and making threats. In response, Espinoza flashed a pocket knife to ward them off. Defendant, Espinoza and Pineda climbed into defendant's truck and drove off; they did notice, however, that Pascual was running after them holding a gun at his waist. Pascual was about 55 to 60 feet away. Defendant did not slow down, he was "panicked"; his friends were screaming to step on the gas because "[Pascual] has a gun," and he ducked down as he drove. Defendant did not hear any gunshots. Defendant, however, did not tell the police in his interview this specific information about Pascual, although he was asked if he had seen anyone with a gun or anyone shooting.
Based on a variety of factors, two police gang experts opined that defendant was a Surenos gang member on the date of the offense, and they provided a context to this gang confrontation.
I. The Trial Court Properly Instructed on the Natural and Probable Consequences Doctrine, and Defendant's Conviction for Street Gang Participation (§ 186.22, subd. (a)) Is Also Legally Proper*fn4
A. Instruction on Natural and Probable Consequences Doctrine
Defendant contends the trial court, on its own, should have tailored the standard instruction it gave on the aiding and abetting doctrine of natural and probable consequences, CALCRIM No. 403, to instruct the jurors specifically that they could not find defendant guilty under that doctrine if they concluded that one of the rival gang members (i.e., one of the Nortenos) shot Christopher Smith. We disagree.
As explained by our state high court, the natural and probable consequences doctrine constitutes a particular kind of aiding and abetting. "[A]n aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime [i.e., the target offense]. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that [objectively] was a "natural and probable consequence" of the crime aided and abetted [i.e., the non-target offense].' " (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), quoting People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman); People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).)
The trial court instructed with CALCRIM No. 403 as relevant:
"Before you may decide whether the defendant is guilty of the charged offense(s) in counts 1 through 4 [i.e., the attempted murder of Christopher Smith; the attempted murder-related firearm assault upon Smith; permitting another to shoot from a vehicle; and street gang participation], which will be referred to in this instruction as the non-target offenses, you must decide whether he is guilty of Disturbing the Peace [by fighting, challenging to fight, or offensive words] and/or Simple Assault which shall be referred to as the target offenses.
"To prove that the defendant is guilty of the charged non-target offenses, the People must prove ...