Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. TA087922 Eleanor J. Hunter, Judge.
Law Offices of John P. Dwyer and John P. Dwyer, under appointment the Court of Appeal, for Defendant and Appellant Jose Phillip Aguirre.
Charlotte E. Costan, under appointment the Court of Appeal, for Defendant and Apellant David Edward Santos.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL BACKGROUND
On June 12, 2008, a second amended information was filed charging appellants David Edward Santos and Jose Aguirre in count 1 with the attempted willful deliberate and premeditated murder of Walter Dominguez (Pen. Code, §§ 187, subd. (a), 664); in count 2 with the attempted extortion of Dominguez (Pen. Code, §§ 520, 664); and in count 3 with the murder of Anthony Gurule (Pen. Code, § 187, subd. (a)). In addition, the information charged Santos in count 4 with arson (§ 451, subd. (c)); in count 5 with conspiracy to commit arson (§ 182, subd. (a)(1)); and in count 6 with dissuading a witness, namely, Dominguez (§136.1, subds. (a), (b), (c)(1)). Accompanying the first three counts were firearm use allegations (§12022.53, subds. (b) - (e)); in addition, accompanying all the counts were gang allegations (§ 186.22, subd. (b)). The information also asserted prior conviction allegations against Santos (§ 667.5, subd. (b)) and Aguirre (§§ 667.5, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory citations are to the Penal Code, unless otherwise indicated.
On June 12, 2008, at the inception of the jury trial against appellants, the trial court denied Santos’s request to bifurcate trial of counts 1 through 3 from counts 4 through 6. On July 21, 2008, the jury found appellants guilty as charged, with the exception of count 1, regarding which the jury found Santos guilty of unpremeditated attempted murder but found Aguirre not guilty. The jury also found true the firearm use and gang allegations asserted against Santos under counts 1 through 6 and against Aguirre under counts 2 and 3. The trial court sentenced Santos to a total term of imprisonment of 37 years, plus 35 years to life, plus life, and Aguirre to a total term of 35 years to life, plus 8.5 years.
Regarding Santos, the trial court imposed a term of 37 years under count 1; a consecutive term of 35 years to life under count 3; and a consecutive life term under count 6. The court also imposed a term of 8.5 years under count 2 and a term of 7 years under count 4, each of which is to be served concurrently with the term imposed under count 1. Punishment for count 5 was stayed (§ 654). Regarding Aguirre, the trial court imposed a term of 35 years to life under count 3 and a consecutive term of 8.5 years under count 2.
FACTS
A. Prosecution Evidence
1. Background
The Mexican Mafia is a violent prison gang that exercises control over gangs in Southern California. The Mexican Mafia issues directives to several gangs, including the Carson 13 gang, whose territory is located in Carson, and the Bell Garden Bratz. At the time of the events in question, Santos was a member of the Carson 13 gang. Aguirre belonged to the Bell Gardens Bratz.
Anthony Gurule was a member of the Mexican Mafia. On behalf of the Mexican Mafia, he collected “taxes” -- that is, sums of money -- from drug dealers such as Matthew Rendon, a member of the Carson 13 gang. Threats of violence backed the demands for “taxes.” Santos and Aguirre worked with Gurule in collecting “taxes” for the Mexican Mafia, as did Michael Franco, a member of the Catarenas gang.
In November 2006, Walter Dominguez lived in Carson and engaged in drug dealing. He was a former member of the Victoria Park gang.
2. Shooting at Dominguez’s House (Counts 1 through 3)
On November 20, 2006, Rendon met with Gurule in Carson, where Rendon paid Gurule $1,000 in “taxes.” Appellants accompanied Gurule. After Gurule and appellants left, Rendon heard gunshots.
On the same date, Dominguez and his wife, Glenda Llamas, ate dinner at a restaurant with a friend, Juan Antimo. Gurule and appellants appeared outside Dominguez’s house and told his daughter that they wanted to talk to him. When she answered that Dominguez would be home soon, they left. She phoned her parents to report the visitors, and they returned to the house with Antimo. Dominguez’s friend Dustin Cabrera also arrived at Dominguez’s house.
Gurule and appellants soon reappeared, parked their vehicle near Dominguez’s house, and told Llamas they were looking for Dominguez. Dominguez left the house to talk to them, while Llamas, Antimo, and Cabrera remained inside.
The prosecution’s key witness regarding the subsequent events was Dominguez, who testified that he owned two firearms, a Glock and a Browning. When Gurule and appellants arrived at Dominguez’s house, he placed his Glock handgun in his pocket before leaving the house. Upon opening the front door, he encountered Gurule, flanked by appellants. Dominguez stepped outside, closed the door, and walked with Gurule to the sidewalk. Aguirre moved to a pillar on the driveway while Santos remained on the house’s porch.
Dominguez provided his testimony pursuant to an immunity agreement that barred the use of his testimony in the prosecution for drug-related charges against him.
Dominguez was unaware that Gurule was affiliated with the Mexican Mafia. When Gurule asked whether Dominguez knew who he was, Dominguez replied in the negative. Gurule became angry and asserted that Dominguez owed him $500 every two weeks. Dominguez responded that he “didn’t have that kind of money.” Gurule told Dominguez to stop lying and demanded money.
While Dominguez and Gurule talked, Dominguez’s friend -- identified only as “Chacho” -- parked his white truck in Dominguez’s driveway. Gurule asked Dominguez, “[W]hy [are you] calling [your] people?” Dominguez denied that he had summoned Chacho, turned toward the truck, and told Chacho to “hold on.” Chacho left the truck and stood near it.
Dominguez looked back at Gurule, who punched him, causing him to fall onto the driveway. Dominguez drew his gun, pointed it at Gurule, and raised his other hand in a gesture intended to say, “Hold up.” Gurule moved toward Dominguez, kicked him, and retreated a few steps. Gurule stood near Aguirre, and both men were in Dominguez’s view.
Dominguez heard a gunshot from the porch area to his left, and then saw gun flashes in front of him. He fired his gun toward Gurule and Aguirre, and ran around the side of the white truck. He heard several gunshots that sounded as if their source was moving away. He also saw gunfire from the location of a parked vehicle, and fired his gun in its direction.
At some point, someone near the parked vehicle yelled out to Dominguez, “You fucked up; you shot a carnale.” Dominguez understood this to mean that he had shot a person affiliated with the Mexican Mafia. He ran into the house, placed his gun in the kitchen, and discovered that he had been shot in the leg. According to Dominguez, he did not see Chacho participate in the shooting.
The jury heard excerpts from recordings of Dominguez’s police interview, during which he made statements in conflict with his trial testimony.
Antimo testified that after Dominguez left the house, he heard several gunshots. Antimo grabbed a gun from the house and opened the front door. When he tried to fire the gun, it jammed. He then threw the gun into a neighbor’s backyard.
Cabrera testified that after Dominguez left the house, he heard a conversation and then gunshots. He opened the front door and saw Dominguez lying on the ground near a white truck parked in the driveway. Dominguez told Cabrera that he had been shot. Cabrera helped Dominguez into the house and placed Dominguez’s gun on a kitchen counter.
Several of Dominguez’s neighbors also testified regarding the shooting. After hearing gunshots, Jane and Thomas Glasser saw an unknown person near the white truck; Thomas also observed that the person held a gun and entered Dominguez’s house. Rudolph Morfin heard gunshots and saw the silhouettes of individuals shooting. Teodocio Garcia, his son Andrew, and Ed Sandoval saw a person running away from Dominguez’s house.
Ruben Martinez was sitting on his porch when he heard several shots. A man carrying a gun ran into the backyard of a nearby house owned by Edward Fuller. Martinez approached the fence on the boundary of the Fuller residence and talked to the man, who said that he was from Carson 13 and that some “Samoans” were shooting. When they talked, Martinez saw that the man no longer had a gun. The man then entered the Fuller residence, and Fuller’s son, Edward, Jr., arrived in a car. The man left the house and entered the car, which drove away. Martinez later identified the man with the gun as Santos in a photographic lineup, but was unable to make an identification at trial.
Edward Fuller, Jr., testified that he could recall none of the events that occurred on November 20, 2006. The jury heard portions of a recorded police interview, during which he stated that he gave Santos a ride on that date.
Investigating officers found Gurule wounded and lying in the street in front of Dominguez’s house. Also lying in the street was Aguirre, who was injured. The officers found a Smith &Wesson firearm near the house’s driveway. Gurule was taken to a nearby hospital, where he was pronounced dead.
In the house, the officers discovered Dominguez, a Glock handgun, and $35,000 to $40,000 in cash; in addition, a Browning firearm was eventually found in the backyard of a residence near Dominguez’s house. The officers also uncovered two to four kilograms of cocaine in the white truck. Numerous bullet casings and undischarged gun rounds were discovered near Dominguez’s house, including thirteen.45 caliber casings. A trained “scented-certified” dog detected Santos’s scent on one of the.45 caliber casings. The weapon that fired the.45 caliber rounds was never recovered.
3. Aguirre’s Remarks to Franco (Counts 1 through 3)
Shortly after the shooting, Franco talked to Aguirre by phone while Aguirre was recuperating in a hospital. Aguirre said that he had been wounded while trying to protect Gurule, and that he had shot the person who killed Gurule. He “felt like a hero” for shooting Dominguez.
Franco provided his testimony pursuant to an immunity agreement.
A week or more later, Franco was detained and encountered Aguirre in a jail hospital. According to Franco, Aguirre then said, “[Santos] F’d up. The guy bitched out and dropped his gun and that started a bunch of drama.” Aguirre offered the following description of the shooting: After Gurule struck Dominguez, Santos tried to draw his gun, but fumbled the gun and dropped it. The gun went off, and Dominguez shot Gurule.
4. Arson and Dissuading a Witness (Counts 4 through 6)
After Gurule’s death, George Bustamante became the Mexican Mafia member responsible for “taxing” what had been Gurule’s territory. Two or three days after the shooting, Santos, accompanied by Franco, met with Bustamante in a sports bar. Franco testified that Bustamante listened to Santos’s account of the shooting, and then directed Franco “to send a message, to burn the house.” When Franco suggested that Santos was the better person to take action because the house was in his neighborhood, Santos said that “he’d take care of it.” Bustamante told Franco to “take care of Walter, ” that is, kill him.
Rendon also testified that after Gurule’s death, the Mexican Mafia directed the Carson 13 gang to burn down Dominguez’s house. According to Rendon, if the Carson 13 gang had failed to carry out this order, the Mexican Mafia would have “green lighted” the gang, that is, subjected its members to violent sanctions.
On November 25, November 29, and December 18, 2006, three incidents of arson damaged parts of Dominguez’s house. On January 18, 2007, while Santos was in jail, he placed a phone call to his brother, Richard Santos, who also belonged to the Carson 13 gang. During the call, Richard told Santos that the “hood” -- or entire gang -- would be “asked out” -- that is, targeted for assaults or murders -- if nothing happened regarding “the house” within a week. Santos responded, “Well, then you guys better take care of that, ” and added, “Well, you gotta, if you gotta, you do it. Whatever.”
Early on January 20, 2007, a fire caused substantial damage to Dominguez’s house. Investigating officers determined that someone had poured a flammable liquid throughout the house’s interior and ignited the liquid. Later that day, Santos again phoned Richard, who said that he had learned from a third party that “they” had gone “over to that pad and torched it.” Santos responded, “Oh, well.”
Several members of the Carson 13 gang were arrested and prosecuted for the final act of arson, including Rendon, Justin Guillen, and Richard Santos. In December 2007, Santos and his brother Richard were placed together in a cell, and their conversation was recorded. Santos told Richard that Franco had become a “snitch, ” and had described the meeting in the sports bar that Santos and Franco had been ordered to attend. In the cell, Santos and Richard also discussed a “green light” imposed on the Victoria Park gang -- Dominguez’s former gang -- that would be lifted only when the gang killed Dominguez.
In May 2008, police officers discovered a list of “green lighted” groups and individuals in the jail cell of an individual known to be a Mexican Mafia “shot caller, ” that is, gang leader. Among the targets of a “green light” were the Victoria Park gang and “Trouble from Bratz.” The jury heard evidence that Aguirre’s gang moniker in the Bell Garden Bratz was “Trouble.”
B. Aguirre’s Defense Evidence
Aguirre testified as follows: He had been a member of the Bell Gardens Bratz since 1990. In 2006, he made music albums and videos, but did not participate in “tax” collecting activities for the Mexican Mafia. In August 2006, he met Gurule, who later expressed an interest in making an investment in one of Aguirre’s albums.
On November 20, 2006, Gurule asked Aguirre for a ride because his car was being repaired. At Gurule’s request, Aguirre stopped his car near an apartment in Carson. Gurule did not explain his reason for making the stop. While Aguirre remained in the car, Gurule left and returned after a few moments, accompanied by another person.
Aguirre then drove Gurule and the other person to Dominguez’s house. Gurule again did not explain the reason for his visit. When they arrived, a crowd of five or six persons stood in front of the house. Aguirre waited in the car when Gurule and the other man left it.
After a few minutes, Aguirre left the car to urge Gurule to leave. As Aguirre walked toward the house, a white truck arrived, and a fight broke out. To protect Gurule, Aguirre joined in the fight. He used his fists, as he had no gun. During the fight, Aguirre observed a gun drop to the ground. He picked up the gun and fired it at the person who shot him. Eventually, several participants in the fight drove away. When the fight subsided, Aguirre saw Gurule nearby, injured. After several minutes, police officers arrived. Aguirre denied that he had engaged in any conversations with Franco about the shooting.
C. Santos’s Defense Evidence
Santos testified as follows: He belonged to the Carson 13 gang and operated as a “small time” drug dealer. On November 20, 2006, Gurule, Aguirre, and Santos drove to Rendon’s apartment to pick up some cash for drug transactions, and then went to Dominguez’s house to buy drugs. Santos expected to buy two kilograms of cocaine from Dominguez for $18,000 in cash.
When the threesome arrived, Gurule told Santos to “hang back.” Santos stood on the driveway while Gurule talked to Dominguez on the house’s porch. After Santos overheard Dominguez say, “[I]t’s on its way, ” an unknown man stepped out of the house onto the porch. When a white truck arrived, Dominguez and Gurule began to argue. Gurule hit Dominguez in the face, causing him to fall, and the unknown man on the porch fired a gun. In an effort to make the man stop shooting, Santos fired his own gun over the man’s head, and then fled. He ran to the Fuller residence, where he asked his girlfriend for help by phone. Edward Fuller, Jr. soon arrived by car and drove him to his house.
The day after the shooting, Franco told Santos by phone that he had to attend a meeting. Franco and Santos went to a sports bar in a vehicle driven by Bustamante. According to Santos, he did not know Franco or Bustamante, and was unaware that Franco might be associated with the Mexican Mafia. The meeting never occurred, because the person whom Franco expected to conduct the meeting did not appear. Santos denied any role in the arson at Dominguez’s house.
The jury heard a recording of Santos’s police interview, during which he made statements in conflict with his trial testimony.
DISCUSSION
Santos contends that the trial court improperly permitted a joint trial of the offenses alleged against him; that there is insufficient evidence to support his conviction on counts 1, 3, 4, 5, and 6; that there was evidentiary error; and that the jury was misinstructed regarding the theory of provocative act murder (count 3). Aguirre contends that there is insufficient evidence to support his conviction for murder (count 3). For the reasons explained below, we reject these contentions.
A. Joinder of Offenses
Santos contends that the trial court improperly permitted a joint trial of murder-related charges (counts 1 through 3) and the arson-related charges (counts 4 through 6). Santos and Aguirre were initially charged with the murder-related offenses in one case, and Santos was charged with the arson-related offenses in a second case. The trial court granted the prosecutor’s motion to consolidate trial of the offenses alleged against Santos in the two cases. Later, at the inception of trial, Santos asked the court to bifurcate trial of the gang allegations and the arson-related offenses. In denying the request, the court declined to sever trial of the murder-related offenses from the arson-related offenses.
The court also declined to bifurcate trial of the gang allegations. Because Santos does not challenge this element of the court’s ruling, he has forfeited any contention of error regarding it.
Generally, rulings on motions for consolidation and severance are subject to the same standards of review. (See People v. Mason (1991) 52 Cal.3d 909, 933-935.) The rulings are reviewed for an abuse of discretion on the basis of the facts known to the trial court at the time of the ruling. (Id. at p. 933.) However, even if the trial court did not abuse its discretion in ordering consolidation, we may reverse the judgment upon determining that the consolidated trial actually resulted in a denial of due process. (Id. at p. 935.)
Santos contends the court abused its discretion in consolidating trial of the charges against him. We disagree. “Because consolidation ordinarily promotes efficiency, the law prefers it[, ]” absent a clear showing of prejudice to the defendant. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) Our analysis regarding the court’s exercise of its discretion involves two stages: first, we assess whether the statutory requirements for joinder were met; second, we assess whether the trial court properly determined that joinder would not prejudice appellant. (People v. Lucky (1988) 45 Cal.3d 259, 276-277; Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 134-135.)
Santos does not dispute that the statutory requirements for joinder were satisfied. Section 954 authorizes joint trial of different offenses “connected together in their commission.” Even offenses committed at different times and places may satisfy this requirement when they are “linked by “‘“a common element of substantial importance.”’” (People v. Lucky, supra, 45 Cal.3d at p. 276, quoting People v. Matson (1974) 13 Cal.3d 35, 39.) Thus, in People v. Valdez (2004) 32 Cal.4th 73, 119, our Supreme Court held that the defendant’s commission of a murder and subsequent escape from jail were “connected... in their commission” (§ 954), as the defendant’s motive for the escape was to avoid prosecution for the murder. Here, in seeking consolidation of the two groups of offenses, the prosecution stated that it planned to present evidence that Santos committed the arson-related offenses against Dominguez at the direction of the Mexican Mafia, which sought to respond to Gurule’s death. The trial court thus properly concluded that the arson-related offenses were appropriately connected to the murder-related offenses.
When, as here, different offenses are properly joined under section 954, a defendant can show that consolidation was error only by making a “‘clear showing of prejudice.’” (People v. Mason, supra, 52 Cal.3d at p. 933, quoting Williams v. Superior Court (1984) 36 Cal.3d 441, 447.) Joinder may be prejudicial “if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible ‘spillover’ effect that might affect the outcome; or [if] one of the charges carries the death penalty.” (People v. Cummings (1993) 4 Cal.4th 1233, 1283.) Here, the prosecution asserted that consolidation was proper because the evidence regarding the two groups of offenses was cross-admissible, and none of the charges was likely to inflame the jury. In addition, the prosecution maintained that the murder and arson cases were equally strong, arguing that Dominguez’s testimony regarding the murder was equivalent in probative value to the recorded conversations of Santos regarding the arson.
In ruling on the motion to consolidate and request for bifurcation, the trial court concluded that joinder was proper because there was a “cross reference” in the evidence regarding the offenses. Generally, “[c]ross-admissibility [of evidence] is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled. [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 531.) The state’s interest in consolidated trials gives the trial court broader discretion in ruling on the joinder of offenses than it has in ruling on the admissibility of evidence. (People v. Cummings, supra, 4 Cal.4th at p. 1284; People v. Bean (1988) 46 Cal.3d 919, 938.) Because of this interest, “complete cross-admissibility is not necessary to justify joinder.” (People v. Cummings, supra, 4 Cal.4th at p. 1284.)
In our view, the trial court correctly ruled that the evidence regarding the murder-related offenses was cross-admissible to establish Santos’s motive and intent with respect to the arson-related offenses. Under Evidence Code section 1101, subdivision (b), evidence that a defendant committed a crime is admissible to show his or her motive or intent in committing a second crime at a different time. Thus, in People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210-1212 , the court concluded that a gang member’s violent confrontation with a rival gang was admissible to show his zeal in pursuing his gang’s policies and his intent in killing a member of a rival gang, which occurred five years after the confrontation.
“Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant ‘when offered to prove his or her conduct on a specified occasion.’ Subdivision (b) of the statute, however, provides that such evidence is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge...).’” (People v. Cole (2004) 33 Cal.4th 1158, 1194.)
Here, the evidence that Santos participated in Gurule’s death was relevant to his motive and intent in engaging in the arson-related offenses. In addition, the trial court below could also reasonably conclude that the murder and arson cases were equal in strength, and that neither was especially likely to inflame the jury, in view of the gravity of the charges in each case. Accordingly, the rulings on the consolidation motion and severance request were proper when made.
Santos also contends that the trial actually resulted in gross unfairness constituting a denial of due process. (See People v. Mason, supra, 52 Cal.3d at p. 935.) He argues that consolidation resulted in the conjunction of a very weak murder case with a weak -- but stronger -- arson case, in which the prosecution was permitted to present highly prejudicial evidence, namely, a video recording of the arson fire, and evidence of three uncharged arson fires.
We reject this contention. As explained below, there is ample evidence to support Santos’s convictions (see pt. B, post), and the video recording and other evidence was properly admitted (see pt. C., post). Regarding the murder- related offenses, the prosecution presented Dominguez’s and Aguirre’s descriptions of the shooting to establish that Santos had provoked the shooting; regarding the arson-related offenses, the prosecution presented Franco’s testimony that the Mexican Mafia ordered Santos to burn Dominguez’s house down, along with evidence that Santos ensured that the order was carried out. We do not discern a significant disparity in the overall strength of the two cases.
Finally, Santos argues that even if severance was properly denied, the trial court was obliged to bifurcate trial of the arson-related offenses from the murder-related offenses. Generally, “‘[b]ifurcation’ of a jury trial... means that different issues in a case will be tried seriatim by the same jury with the jury returning separate verdicts as to the issues bifurcated. There is but one trial. ‘Severance, ’ on the other hand, means that different issues or different defendants in one case have been split off to be tried separately by different juries.” (People v. Wojahn (1984) 150 Cal.App.3d 1024, 1033, overruled on another ground in People v. Saunders (1993) 5 Cal.4th 580, 597.) Santos maintains that under the circumstances of this case, the trial court was required to bifurcate trial so that the jury first resolved the murder case before it heard the arson case. As explained below, he is mistaken.
Although the trial court is authorized to bifurcate trial of certain factual matters to avoid prejudice to the defendant, our research has disclosed no case supporting the proposition that trial may be bifurcated with respect to substantive offenses, and Santos has cited none. As our Supreme Court has explained, “[g]eneral authority to bifurcate trial issues” is found in section 1044, which accords the trial court broad discretion to control over trials. (People v. Calderon (1994) 9 Cal.4th 69, 74.) This discretion is properly exercised when a unitary trial “poses a grave risk of prejudice.” (Id. at p. 75.) It is well established that bifurcation may be ordered regarding the existence of a prior conviction when this fact is an element of a crime (People v. Valentine (1986) 42 Cal.3d 170, 181-182) or an enhancement (People v. Calderon, supra, 9 Cal.4th at p. 79); in addition, bifurcation may be ordered regarding gang allegations (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049). Nonetheless, in People v. Sapp (2003) 31 Cal.4th 240, 262, the Supreme Court held that the trial court lacks the discretion to bifurcate trial of a substantive offense that requires proof of a prior conviction.
It is unnecessary for us to resolve whether the trial court had the discretion to bifurcate trial of the arson-related offenses to avert undue prejudice to Santos. Nothing before us suggests that a unitary trial “pose[d] a grave risk of prejudice” to Santos on the facts known to the trial court when it rejected his request for a bifurcated trial. (People v. Calderon, supra, 9 Cal.4th at p. 79.) Moreover, as explained above, Santos suffered no cognizable prejudice from the unitary trial that actually occurred. In sum, the consolidated trial was proper.
B. Substantial Evidence
Appellants contend that their convictions fail for want of substantial evidence. For the reasons explained below, we disagree.
1. Standard of Review
Our inquiry into appellants’ contentions follow established principles. “In determining whether the evidence is sufficient to support a conviction..., ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] Under this standard, ‘an appellate court in a criminal case... does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Rather, the reviewing 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.’ [Citation].” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
2. Murder of Gurule (Count 3)
Appellants contend that there is insufficient evidence to support their conviction for Gurule’s murder on the theory of provocative act murder, which the prosecution relied upon at trial. With respect to this theory of murder, the prosecution maintained that when Gurule, Santos, and Aguirre attempted to extort funds from Dominguez, Santos provoked a gun battle that resulted in Gurule’s death. As explained below, there is sufficient evidence to support appellants’ convictions for murder.
“The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator’s accomplice or an innocent bystander. [Citations.] (People v. Cervantes (2001) 26 Cal.4th 860, 867.) Under this doctrine, “when the perpetrator of a crime -- with a conscious disregard for life -- intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder. In this situation, the killing is attributable -- not merely to the commission of a felony -- but to the intentional act of the perpetrator committed with conscious disregard for life.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 581 (Briscoe).) The doctrine attaches liability to the defendant who provoked the gun battle regardless of who fired the fatal bullet, unless the victim is “the sole cause of his death.” (People v. Garcia (1999) 69 Cal.App.4th 1324, 1331.) Accomplices of the defendant who provoked the gun battle are also liable for the resulting murder on a theory of vicarious liability. (Id. at p. 1331, fn. 4.)
The central question regarding the application of the doctrine is whether “the defendant committed a provocative act which proximately caused the killing.” (Briscoe, supra, 92 Cal.App.4th at p. 582, italics omitted.) To constitute a provocative act, the defendant’s conduct must exceed “that necessary to commit the underlying crime.” (Id. at pp. 582-583.) In addition, the conduct must demonstrate malice, which is properly implied when “the defendant commits an act with a high probability that it will result in death and does so with a base antisocial motive or a wanton disregard for human life.” (Ibid.) Conduct that initiates a gun battle may constitute a provocative act even though the defendant did not fire the first shot. (People v. Garcia, supra, 69 Cal.App.4th at p. 1330.) However, no conduct has the status of a “provocative act” unless it “was sufficiently provocative of lethal resistance to support a finding of implied malice.” (Briscoe, supra, 92 Cal.App.4th at p. 583.)
The prosecution must also show that the provocative act proximately caused the death. “To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. [Citations.] A defendant’s provocative acts must actually provoke a victim response resulting in an accomplice’s death. [Citation.]” (Briscoe, supra, 92 Cal.App.4th at pp. 583-584, fn. omitted.) Thus, the provocative act must occur before the fatal shot occurs. (Ibid.) The existence of proximate causation is ordinarily a factual question for the jury. (Id. at p. 584.)
Here, Dominguez testified that after Gurule demanded “tax” payments from him, Gurule punched him, thereby knocking him to the ground. Dominguez drew his gun and aimed it at Gurule while raising his free hand to say, “Hold up.” Gurule nonetheless kicked Dominguez before retreating toward Aguirre, who was in Dominguez’s view. Dominguez heard a gunshot from the porch to his left, where Santos had been standing, and next saw gun flashes in front of him, in the vicinity of Gurule and Aguirre. As result, Dominguez fired his gun toward Gurule and Aguirre. The jury also heard Franco’s testimony regarding Aguirre’s description of the shooting. According to Franco, Aguirre said that Gurule tried to collect money from Dominguez and then hit him; after being struck, Dominguez drew a gun; in response to Dominguez’s action, Santos tried to draw his gun, but dropped it; as a result, the gun went off, “start[ing] a bunch of drama.”
Appellants contend that this evidence is insufficient to support their murder convictions, as it relies on testimony from Dominguez and Franco, whom they characterize as unreliable; in addition, they note that Franco’s description of Aguirre’s remarks appeared to change in some respects as he testified. In so arguing, they “misapprehend[] our role as an appellate court. Review for substantial evidence is not trial de novo. [Citation.]” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 866.) On such review, “[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of... [the factfinder] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on another ground in People v. Burton (1961) 55 Cal.2d 328, 352.) A witness’s statements in testimony may be rejected only when “there must exist either a physical impossibility that they are true, or their falsity... [is] apparent without resorting to inferences or deductions.” (People v. Huston, at p. 693.) That is not the case regarding Dominguez’s and Franco’s testimony.
Appellants’ remaining challenges focus on whether Santos is responsible for a provocative act that proximately caused Gurule’s death. They contend that Gurule provoked the gun battle by punching Dominguez, or alternatively, that Dominguez provoked it by drawing his gun. However, as Gurule sought to extract continuing payments from Dominguez and no one had brandished a gun when Gurule hit Dominguez, the jury reasonably found that it was not a provocative act, as it was not “likely to result in death.” (Briscoe, supra, 92 Cal.App.4th at pp. 581, 586-587.)
Nor was Dominguez’s conduct in drawing his gun a provocative act. According to Dominguez, he drew his gun and raised his hand to halt Gurule’s violence. A person may lawfully display a weapon in self-defense(People v. Villaneuva (2008) 169 Cal.App.4th 41, 54 & fn. 12), provided this conduct is reasonable under the circumstances (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065). Here, Gurule arrived at Dominguez’s home with Santos and Aguirre, demanded biweekly payments of $500, and violently punched Dominguez without warning. Under the circumstances, the jury could conclude that Dominguez reasonably drew his gun to deter further physical injury to himself. (See People v. Minifie, supra, 13 Cal.4th at pp. 1064-1069 [prior threats of physical injury to defendant were admissible to support his theory of self-defense, when defendant drew and fired a gun after victim unexpectedly punched him].)
The jury received instructions on self-defense.
Noting that there is no direct evidence that Santos intentionally fired his gun, appellants maintain that the accidental discharge of his gun cannot constitute a provocative act. We disagree. According to Aguirre’s account of the shooting, when Dominguez displayed his gun, Santos drew his own gun but dropped it, causing it to discharge. Santos thus responded to Dominguez’s lawful use of force by intentionally drawing his own gun, which substantially enhanced the likelihood of a shootout through the accidental discharge of his gun.
As our Supreme Court has noted, an intentional act that materially raises the probability of an accidental gun discharge may constitute a provocative act. In In re Joe R. (1980) 27 Cal.3d 496, 501, a minor assisted an adult armed with a gun in a robbery. The victim, fearful that he would be murdered, attempted to seize the adult’s gun, and a struggle ensued. (Id. at pp. 501-502.) During the struggle, the minor punched the victim. (Id. at p. 502.) After the victim gained control of the gun, he fatally shot the adult. (Ibid.) In holding that the minor was not liable for the death on a theory of provocative act murder, our Supreme Court concluded that the minor’s punch, though a provocative act, had not caused the death. (Id. at p. 507.) The court stated: “That ‘rabbit punch’ was certainly a malicious act taken in conscious disregard for life, since foreseeably it could have... caused the gun to discharge accidentally. However, it fails to meet the second requirement of [provocative act] murder liability since it did not provoke [the victim’s] lethal resistance and was not the proximate cause of [the] death. [Citations.]” (Ibid.) In contrast to In re Joe R., here, Santos’s drawing of his gun directly precipitated the shots to which Dominguez responded, thus “provoke[ing] [Dominguez’s] lethal resistance” and constituting “the proximate cause of [Gurule’s] death.” (Id. at pp. 517-518.) In view of In re Joe R., Santos’s drawing of his gun was itself a provocative act.
Finally, appellants contend that Santos’s provocative act did not proximately cause the gun battle, as Dominguez testified that he fired his gun only after he saw gun flashes in front of him, where Gurule and Aguirre stood. They argue that Santos’s conduct was not the proximate cause of Dominguez’s initial shots because Dominguez fired in response to the gun flashes, not the shot from Santos’s gun. However, as explained below, even if the jury found that Dominguez reacted to the gun flashes, rather than Santos’s shot, it could have reasonably concluded that Santos’s provocative act proximately caused Gurule’s death.
At the outset, we note that because Aguirre told Franco that he had fired at Dominguez and only one gun was found near Gurule and Aguirre, the jury could have reasonably determined that Aguirre, rather than Gurule, was responsible for the shots underlying the gun flashes that Dominguez saw. Accordingly, the key issue is whether Santos’s provocative act proximately caused the shots from Aguirre and ultimately, Gurule’s death. We find guidance on this issue from People v. Gardner (1995) 37 Cal.App.4th 473 (Gardner). There, the defendant approached his victim and tried to rob him or to scare him off the defendant’s “turf.” (Id. at p. 475.) When the victim fled, the defendant fired several bullets at him. (Ibid.) A drug dealer who was unaware of these events heard the shots, and fired his own gun in their direction, in an apparent effort to defend himself. (Ibid.) The bullets from the drug dealer’s gun killed the victim. (Ibid.) In affirming the defendant’s murder conviction under the provocative act doctrine, the appellate court reasoned that the defendant’s act of firing shots proximately caused the responsive fire from the drug dealer, regardless of whether the drug dealer’s conduct was instinctive or reasonable. (Id. at p. 482.)
Here, the jury could have reasonably concluded that Aguirre fired in response to the shot from Santos’s gun, either reflexively or in anticipation of defensive fire from Dominguez. Under these circumstances, Santos’s provocative act proximately caused the shots from Aguirre, regardless of whether Aguirre’s conduct was instinctive or calculated. Although here, unlike the situation in Gardner, Gurule -- not Dominguez -- was the ultimate victim of the gun battle, there is an unbroken chain of proximate causation from Santos’s provocative act to Gurule’s death. As noted above, the provocative act doctrine encompasses the complex chain of causation that resulted in Gurule’s death. (See People v. Cervantes, supra, 26 Cal.4th at p. 867.) In sum, there is sufficient evidence to support appellants’ convictions for murder.
3. Attempted Murder of Dominguez (Count 1)
Santos contends that his conviction for the attempted murder of Dominguez fails for want of substantial evidence. Generally, “[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Santos argues there is no evidence he had the specific intent to kill Dominguez. We disagree.
Investigating officers found thirteen.45 caliber casings at Dominguez’s house after the gun battle, including several on the street in front of the house; Santos’s scent was found on one of the casings. The weapon responsible for these casings was never located. Ruben Martinez, Dominguez’s neighbor, saw Santos carrying a gun, and noted that Santos concealed it somewhere. In view of this evidence, the jury reasonably concluded that once Santos provoked the gun battle, he repeatedly fired at Dominguez with the specific intention of killing him, even as Santos fled from Dominguez’s house.
4. Arson and Conspiracy to Commit Arson (Counts 4 and 5)
Santos contends that there is insufficient evidence to support his convictions for arson and conspiracy to commit arson. We disagree. Generally, a person commits arson when “he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, ... or property.” (§ 451.) Furthermore, “‘[a] conviction of conspiracy requires proof 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.’” (People v. Jurado (2006) 38 Cal.4th 72, 120, quoting People v. Morante (1999) 20 Cal.4th 403, 416.)
Regarding the charges of arson and conspiracy to commit arson, Franco testified that shortly after Gurule’s death, Santos met with Bustamante, who ordered the burning down of Dominguez’s house. Santos agreed to do so. Matthew Rendon, a member of Santos’s gang, also testified that after Gurule’s death, the Mexican Mafia directed the Carson 13 gang -- to which Rendon, Santos, and Santos’s brother belonged -- to burn down Dominguez’s house.
In addition, the prosecution presented evidence that after the meeting between Santos and Bustamante, three minor arson fires occurred at Dominguez’s house. One day before the fourth and final arson fire, Santos discussed the problem about “the house” with his brother Richard. Santos said, “Well, then you guys better take care of that, ” and, “Well, you gotta, if you gotta, you do it. Whatever.” Shortly after the final arson fire, Richard reported to Santos that someone had gone “over to that pad and torched it.”
The prosecution also presented evidence that several members of Santos’s gang were arrested and prosecuted for the final arson fire, including Rendon, Richard Santos, and Justin Guillen. Rendon testified that his gang made four attempts to burn down Dominguez’s house, the fourth of which was successful. Guillen testified that he had engaged in arson at Dominguez’s house.
Santos’s principal contention is that Franco, Rendon, and Guillen were not credible witnesses; in addition, he notes that there is no evidence that he directly participated in acts of arson, as he was incarcerated shortly after Gurule’s death. However, as explained above (see pt. B.1, ante), the testimony from Franco, Rendon, and Guillen must be credited on review for substantial evidence. Moreover, there is ample evidence to support Santos’s convictions, despite his incarceration when the incidents of arson occurred. In view of Santos’s conversations with his brother and the other evidence, the jury reasonably concluded that Santos engaged in arson by “counsel[ing], or procur[ing] the burning” of Dominguez’s house (§ 451), and that Santos participated in a conspiracy to achieve this end.
5. Dissuading a Witness (Count 6)
Santos contends there is insufficient evidence to support his conviction for dissuading a witness, namely, Dominguez. At trial, the jury was instructed on the offense of attempting to prevent testimony from Dominguez. We conclude that the jury properly found that Santos committed this offense.
“Section 136.1, subdivision (a)(2), states that any person commits an offense where he or she ‘[k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial....’ The prosecution must prove that ‘the defendant’s acts or statements are intended to affect or influence a potential witness’s or victim’s testimony or acts....’ [Citation.] Where a defendant has this intent and ‘performs an act that “go[es] beyond mere preparation... and... show[s] that the perpetrator is putting his or her plan into action”..., the defendant may be convicted of criminal attempt.’ [Citation.] [¶]... [¶] The statute neither restricts the means a defendant selects to commit the offense, nor does it require that defendant personally deliver the message to the witness. A threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness.” (People v. Foster (2007) 155 Cal.App.4th 331, 335.)
Santos contends that the evidence at trial established that the arson of Dominguez’s house was intended to punish Dominguez for Gurule’s death, rather than to deter Dominguez from testifying. Initially, we note that the two motives are not mutually exclusive. Franco testified that at the meeting in the sports bar, Bustamante initially directed Franco to burn down Dominguez’s house “to send a message.” (Italics added.) When Franco suggested that Santos was the better person to take action, Santos told Bustamante that “he’d take care of it.”
In view of this evidence and the testimony regarding the operation of the Mexican Mafia, including Franco’s testimony that the Mexican Mafia had targeted him for being a “snitch, ” the jury reasonably concluded that the intent of those who committed the arson was to intimidate Dominguez, and to dissuade him from cooperating with the police, testifying against his assailants, or otherwise interfering with the Mexican Mafia in any way. Moreover, it properly found that Santos, in agreeing to burn down Dominguez’s house, understood and endorsed these goals. In sum, there is sufficient evidence to support Santos’s conviction for dissuading a witness.
C. Evidentiary Error
Santos contends that the trial court erred in admitting or excluding several items of evidence. For the reasons explained below, we reject the contentions.
1. Aguirre’s Remarks To Franco
Santos contends the trial court improperly admitted Franco’s testimony regarding Franco’s conversations with Aguirre, during which Aguirre described the shooting at Dominguez’s house. Over Santos’s objections, the trial court ruled that Aguirre’s remarks to Franco were admissible as declarations against penal interest. Santos argues that the remarks were improperly admitted against him. We disagree.
The trial court also concluded that that Franco’s testimony was not inadmissible under Evidence Code section 352. As Santos raises no contention of error regarding this ruling, he has forfeited any such contention.
“Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show ‘that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’” (People v. Lucas (1995) 12 Cal.4th 415, 462, quoting People v. Cudjo (1993)6 Cal.4th 585, 607.)
Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Here, Santos does not dispute that Aguirre was unavailable as a witness. He suggests only that Aguirre’s remarks do not meet the other requirements for an admission against penal interest because the statement inculpated both Aguirre and himself. We find no error.
In People v. Leach (1975) 15 Cal.3d 419, 426 (Leach), several defendants were charged with conspiracy to commit murder. Prior to trial, some of the defendants made statements describing the conspiracy that inculpated themselves and other defendants. (Id. at pp. 438-442.) The court held that the statements were improperly admitted at trial, reasoning that the exception for admissions against penal interest was “inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.” (Id. at pp. 441-442, fn. omitted.)
In People v. Duarte (2000) 24 Cal.4th 603, 613-614 (Duarte), the court explained that the holding in Leach ultimately rests on considerations of reliability: a facially inculpatory statement, when viewed in context, may actually be exculpatory or self-serving, and thus untrustworthy. In Duarte, the defendant and another man were charged with shooting at a dwelling. (Id. at pp. 607-609.) Prior to the defendant’s trial, his accomplice gave police a statement that acknowledged his participation in the crime, but minimized his role. (Id. at pp. 611-614.) A redacted version of the statement was admitted at the defendant’s trial as an admission against penal interest. (Id. at p. 609.)
Following an analysis of case authority, the court in Duarte stated: “Under the rule of Leach, a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.’” (Duarte, supra, 24 Cal.4th at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.) Applying this rule, the court concluded that the redacted statement, viewed in context, was self-serving, and thus improperly admitted. (Id. at pp. 612-613.)
In People v. Samuels (2005) 36 Cal.4th 96, 101-106 (Samuels), our Supreme Court clarified that Leach and Duarte do not exclude a statement that inculpates the declarant and other individuals, provided that the declarant’s facially inculpatory statements are not, in fact, exculpatory, self-serving, or collateral. There, the defendant asked James Bernstein to murder her husband, and once Bernstein had done so, she successfully solicited two other men to murder Bernstein. At the defendant’s trial, a witness testified that Bernstein had said to him, “‘He had done it and Mike [Silva] had helped him. And that [the defendant] had paid him.’” (Id. at p. 120, italics added.)
On appeal, the defendant contended that the italicized portion of these remarks was an attempt to shift blame to her. (Samuels, supra, 36 Cal.4th at p. 120.) The Supreme Court held that the entire statement was properly admitted as a declaration against penal interest, notwithstanding the reference to the defendant: “This admission, volunteered to an acquaintance, was specifically disserving to Bernstein’s interests in that it intimated he had participated in a contract killing -- a particularly heinous type of murder -- and in a conspiracy to commit murder. Under the totality of the circumstances presented here, we do not regard the reference to [the] defendant incorporated within this admission as itself constituting a collateral assertion that should have been purged from [the witness’s] recollection of Bernstein’s precise comments to him. Instead, the reference was inextricably tied to and part of a specific statement against penal interest.” (Id. at pp. 101-106, 121.)
Here, the remarks at issue occurred in two private conversations between Aguirre and his friend, Franco, shortly after the shooting. Aguirre first told Franco that he had been wounded while trying to protect Gurule, that he had shot Dominguez, and that he “felt like a hero” for shooting the man who shot Gurule. Later, Aguirre said that when Dominguez displayed his gun in response to Gurule’s punch, Santos drew his own gun but dropped it, resulting in the gun discharge that “started a bunch of drama.”
In concluding that Aguirre’s remarks were reliable, the trial court noted that Aguirre spoke to Franco, a friend, rather than to a police officer. The court further stated: “[Aguirre] inculpates himself by what he says. He goes over there to tax [] Dominguez. He goes over there with [] Gurule and also [] Santos. [¶]... [H]e doesn’t try to diminish his culpability in all this. In fact, he kind of brags that he was happy... that he was able to shoot the person that killed [] Gurule. So he certainly did not try to minimize his participation in any way, shape or form. [¶] With regard to [] Santos’s conduct of [] shooting first, that’s kind of like a chronology.”
We agree with the trial court that Aguirre’s remarks were sufficiently reliable to be admitted as statements against penal interest. Like the statement in Samuels, Aguirre’s remarks were volunteered to an acquaintance. Moreover, as in Samuels, Aguirre’s remarks identified someone else -- that is, Santos -- as the initiator of the pertinent criminal conduct, but admitted Aguirre’s full participation in it. Viewed in context, Aguirre’s remarks were neither self-serving nor exculpatory. In sum, the remarks were properly admitted.
2. Santos’s Account of the Shooting
Santos contends that the trial court erred in excluding an account of the shooting that Santos provided to Bustamante when they met at the sports bar. As explained below, the contention has been forfeited.
During the cross-examination of Franco, Aguirre’s counsel sought to elicit the account of the shooting that Santos provided to Bustamante during the sports bar meeting. According to the offer of proof, Santos told Bustamante that after Gurule punched Dominguez, one of Dominguez’s accomplices started the gun battle by firing a gun. The prosecutor objected that Santos’s account was not admissible as a statement against Santos’s penal interest, contending that the account was self-serving and untrustworthy. Aguirre’s counsel initially withdrew his request to elicit Santos’s account from Franco.
Later, in cross-examining Franco about his interview with an investigating detective, Aguirre’s counsel again tried to elicit Santos’s remarks to Bustamante, which Franco had related to the detective. Aguirre’s counsel argued that Franco’s discussion of Santos’s account with the detective was relevant to show Franco’s state of mind during his interview with the detective, namely, that he hoped to help his friend, Aguirre. In rejecting the request, the trial court ruled that Franco’s remarks to the detective regarding Santos’s account were inadmissible under Evidence Code section 352, insofar as they were offered to show Franco’s state of mind, but also remarked that the trustworthiness of Santos’s account itself was “certainly suspect.”
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Santos’s sole contention is that fundamental fairness obliged the trial court to admit his account of the shooting, as the trial court admitted the account of the shooting that Aguirre provided to Franco (see pt. C.1., ante). However, this contention has been forfeited because Aguirre, not Santos, sought to introduce the account into evidence, and Aguirre has not challenged the trial court’s rulings on appeal. (People v. Avila (2006) 38 Cal.4th 491, 582.)
Moreover, even if Santos had preserved the contention by joining in Aguirre’s request before the trial court, the contention fails on the merits. To the extent Santos’s account of the shooting was offered for the truth of the matter asserted, Santos cannot invoke the hearsay exception for admissions against penal interest. (People v. Elliot (2005) 37 Cal.4th 453, 483 [defendant who makes out-of-court statement is not “‘unavailable’” for himself under hearsay exception for admissions against penal interest].) Furthermore, to the extent Franco’s interview with the detective regarding Santos’s account was offered to show Franco’s state of mind, the trial court properly excluded the request under Evidence Code section 352. Because Franco had already testified that Aguirre was his friend, the trial court was well within its discretion to conclude that the requested inquiry constituted an excessively time-consuming and potentially confusing attempt to impeach Franco with minimally probative evidence. (See People v. Brown (2003) 31 Cal.4th 518, 545 [trial court properly limited cross-examination of witness under Evidence Code section 352 to avoid time-consuming impeachment of limited value].) As the trial court’s rulings were proper, they created no fundamental unfairness in the trial. (People v. Brown, supra, 31 Cal.4that p. 545. [“This routine application of state evidentiary law does not implicate defendant’s constitutional rights.”].)
3. Uncharged Incidents of Arson
Santos contends that the trial court erred in admitting evidence of the three minor arson fires that occurred at Dominguez’s house before the fourth and final fire, which constituted the sole basis of arson-related charges against him. We disagree.
Early in the trial, the prosecutor presented testimony from Matthew Rendon, a Carson 13 member, who stated that after Gurule’s death, the Mexican Mafia directed his gang to burn down Dominguez’s house. According to Rendon, the gang made three attempts to do so, before achieving success on the fourth try. Santos made no objection to this testimony.
Later, when the prosecutor began to present detailed testimony regarding the first three fires from an arson investigator, Santos’s counsel objected, arguing that the fires were not charged in the information. The trial court asked the prosecutor to explain the link between the three fires and Santos. In response, the prosecutor initially stated that the evidence was intended to show only that before the final fire, Santos was aware that the three fires had not destroyed the house. The prosecutor stated: “I’ll stipulate to the fact that [Santos] is not charged with those crimes [and] that there’s no evidence that he is a perpetrator in those crimes in any way.” The trial court deferred ruling on the admissibility of the evidence until it could review the transcripts of Santos’s conversations with his brother Richard regarding the final fire.
The following day, the prosecutor told the trial court that he had forgotten a key element of the prosecution case, and thus erred in explaining the relevance of the proffered evidence. The prosecutor stated that he intended to present evidence that shortly after Gurule’s death, Santos met with Bustamante and agreed to burn down Dominguez’s house. According to the prosecutor, Santos’s agreement tied him to the three fires, as they occurred shortly after Santos’s meeting with Bustamante. The trial court overruled Santos’s objection to the evidence regarding the three fires.
Santos’s principal contention is that the evidence of the three fires was inadmissible under Evidence Code section 1101, subdivision (b), which bars evidence of uncharged misconduct offered solely to prove a defendant’s criminal disposition. In this regard, he argues that the evidence of “prior crimes committed solely by third parties” may not be offered to “prove the defendant’s guilt of a later crime charged against him.”
This contention fails in light of the offenses alleged against Santos. Santos was charged not only with arson, but with conspiracy to commit arson. As the court explained in People v. Cooks (1983) 141 Cal.App.3d 224, 313-314 (Cooks), “[t]he settled law is... that in a prosecution for conspiracy, evidence of uncharged crimes may be admissible as proof of the common design or plan of the conspiracy. [Citations.] Or, as is also said, evidence of uncharged crimes may be admissible to prove that the charged (substantive) crimes were committed as part of a conspiracy to commit other crimes. [Citations.] In contrast to cases where evidence of uncharged crimes committed by the defendants is offered to prove, by inference, an element of the substantive (charged) crime, such as intent or identity (modus operandi) [citations], in a conspiracy case[, ] uncharged crimes may be direct proof of an essential element of the crime of conspiracy itself, namely, overt acts in furtherance of the conspiracy [citation.]” (Fn. omitted.)
Here, the prosecutor presented evidence that once Santos agreed to burn down Dominguez’s house, Santos and other members of the Carson 13 gang conspired to accomplish this task. As noted above, Franco testified that Santos agreed to destroy the house by fire on orders issued by Bustamante; moreover, Rendon testified that after the Mexican Mafia directed the Carson 13 gang to burn the house down, the gang made three attempts to do so before succeeding. Santos’s participation in the conspiracy was confirmed through his conversations with his brother, Richard. As noted in Cooks, “[o]nce the conspiracy is established it is not necessary to prove that each conspirator personally participated in each of several overt acts.” (Cooks, supra, 141 Cal.App.3d at p. 312.) Accordingly, evidence of the three initial fires was properly admitted, even though Santos did not directly participate in them.
Santos also suggests that evidence of the first three fires was inadmissible under Evidence Code section 352 as more prejudicial than probative. He is mistaken. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (People v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) As explained above, the evidence of the three fires was probative of the existence of a conspiracy in which Santos participated. Accordingly, the trial court did not err in admitting the evidence under Evidence Code section 352.
4. Video Recording of Final Arson Fire
Santos contends that the trial court erred in permitting the jury to view a 20- second video recording of the final arson fire taken from a television news broadcast. Before the trial court, Santos objected to the admission on the video recording on the ground that its potential for prejudice exceeded its relevance. In overruling the objection, the trial court concluded that the video recording was relevant as “demonstrative evidence” of arson, and was not unduly prejudicial.
Generally, established rules of evidence govern the admissibility of photographic images. (People v. Crittenden (1994)9 Cal.4th 83, 132.) Under these rules, images of crime scenes, including photographs of the charred bodies of victims of fatal arson fires, are admissible under Evidence Code section 352 when they have probative value -- for example, a tendency to corroborate witness testimony -- and are not unduly gruesome or prejudicial. (People v. Mendoza (2000) 24 Cal.4th 130, 171.) Here, the brief video recording corroborated witness testimony regarding the location of a portion of the fire in Dominguez’s house, and otherwise contained no gruesome or provocative elements. In sum, the video recording was properly admitted.
D. Instructional Error
Santos contends the trial court erred in instructing the jury regarding the provocative act doctrine. The jury received a modified version of CALCRIM No. 560, which stated in pertinent part: “The People alleged that the defendant committed the following provocative acts: Defendant Santos intentionally pulled out a firearm. Defendant Santos’s gun subsequently discharged. You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts. However, you do not all need to agree on which act.” Santos argues that this portion of the instruction was an improper pinpoint instruction that effectively directed a verdict on the murder count against him. We discern no instructional error.
At the threshold, respondent argues that appellant forfeited this contention by failing to raise it before the trial court. However, a defendant need not assert an objection to preserve a contention of instructional error when the error affects the defendant’s “substantial rights.” (§ 1259.) In this regard, “[t]he cases equate ‘substantial rights’ with reversible error” under the test stated in People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) Here, appellant contends that the purported instructional error implicates his substantial rights. We address his contention on the merits to determine whether there was an impairment of his substantial rights. (See People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
Generally, the adequacy of any instruction given must be judged in the context of all the instructions. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 663, pp. 953-954.) Thus, an instruction is not assessed in isolation, but must be viewed in the context of the overall charge. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) When an instruction is potentially ambiguous or misleading, the instruction is not error unless there is a reasonable likelihood that the jurors misunderstood or misapplied the pertinent instruction. (Ibid.; People v. Avena (1996) 13 Cal.4th 394, 416-417.)
Here, the version of CALCRIM No. 560 informed the jury that a provocative act is one “[w]hose natural and probable consequences are dangerous to human life [] because there is a high probability that the act will provoke a deadly response.” Moreover, in connection with the portion of CALCRIM No. 560 at issue, the prosecutor asserted during closing argument: “Franco tells us that Aguirre said Santos pulled his gun and fumble[d] it and it went off. But we don’t know if Santos fumbled his gun and it went off on accident. We don’t know if he pointed it at [Dominguez] and pulled the trigger. But what we do know is the bottom line, Santos pulled his gun intentionally and it went off. [¶]... [¶] [W]hen Santos pulled that gun and caused it to go off, ... [Santos and Aguirre] committed murder.”
CALCRIM No. 560 and the prosecutor’s argument, viewed in conjunction, informed the jury that the prosecution alleged that Santos had engaged in a course of conduct -- namely, the intentional drawing of his gun, resulting in its discharge -- that potentially constituted a provocative act in two different ways. Under the prosecution’s allegations, Santos engaged in a provocative act either by intentionally drawing and intentionally discharging his gun, or by intentionally drawing the gun in a manner that led to its accidental discharge. CALCRIM No. 560 further instructed the jury that in resolving the allegations regarding Santos’s course of conduct, the jury could not find that the course of conduct constituted a provocative act unless the conduct carried “a high probability” of provoking a deadly response.
In our view, the instruction cannot reasonably be viewed as directing a verdict on a specific factual issue. To begin, the instruction correctly informed the jury that it could find Santos had engaged in provocative act murder only if it determined that he committed at least one provocative act. Under the provocative act doctrine, “[t]here may be more than one act constituting the proximate cause of the killing. (Citation.) [However, if] the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based.” (Briscoe, supra, 92 Cal.App.4th at p. 584.) Furthermore, as explained in Briscoe, when there are two or more candidate provocative acts, the jury need not agree on the act that establishes the defendant’s culpability. (Id. at pp. 590-592.)
Furthermore, the instruction’s specific provocative act allegations did not render it an improper pinpoint instruction. In People v. Neito Benitez (1992) 4 Cal.4th 91, 105, the jury asked the trial court to clarify the term “‘intentional act’” in CALJIC No. 8.31. The trial court responded by stating that “‘the pulling of a handgun in the manner described and/or the shooting of the handgun in the manner described are possible acts for your consideration....’” (People v. Neito Benitez, supra, at p. 105.) In addition, the court admonished the jury not to view its explanation “‘as a comment... on the evidence or a suggestion by the court on what you should find to be the facts.’” (Id. at p. 105, fn. 9.) Our Supreme Court rejected a contention that the explanation constituted an improperly argumentative pinpoint instruction, noting that it “did not imply a conclusion to be drawn from the evidence.” (Ibid.)
The same is true of the instruction before us. The instruction expressly identified the candidate provocative acts as allegations, and informed the jury: “You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts.” Nothing in the instruction directed the jury’s attention to specific items of evidence or encouraged it to draw any particular conclusion from the evidence.
Santos also suggests that the allegation within the instruction that “[d]efendant Santos’[s] gun subsequently discharged” invited the jury to find the existence of a provocative act even if it concluded that his gun accidentlydischarged, without any intentional conduct on his part. We disagree. As explained above, the prosecutor told the jury that Santos’s intentional conduct in drawing his gun was an integral part of any provocative act by Santos. Moreover, CALCRIM No. 560 expressly instructed the jury that in order “[t]o prove that defendant is guilty of murder under the provocative act doctrine, the People must prove that: [¶]... In attempting to commit extortion, the defendant intentionally did a provocative act....” (Italics added.) Accordingly, CALCRIM No. 560, viewed in light of all the instructions, informed the jury that the alleged discharge of Santos’s gun, taken in isolation, could not constitute a provocative act if it was purely accidental, and there is no reasonable likelihood that the jury misunderstood. In sum, there was no instructional error.
DISPOSITION
The judgments are affirmed.
We concur: WILLHITE, Acting P. J.SUZUKAWA, J.