Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. KA082558 Mike Camacho, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Louis Bachicha.
Allen G. Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant Michael Montano.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Louis Bachicha and Michael Montano appeal from their convictions of murder and attempted murder. They claim the trial court erred in admitting evidence of witness intimidation and in instructing the jury. Appellant Bachicha argues the trial court erred in sentencing him to an indefinite life term for attempted murder. Appellant Montano challenges the sufficiency of the evidence that he aided and abetted appellant Bachicha. He also requests a correction of the abstract of judgment.
We conclude the trial court did not abuse its discretion in admitting evidence of witness intimidation. The instructions on consciousness of guilt based on attempts to suppress evidence and flight were supported by the evidence and were properly given. There was substantial evidence to support Montano’s conviction of murder and attempted murder under both theories of aider and abettor liability advanced by the prosecution. While CALCRIM No. 400 misinstructed the jury that the aider and abettor and perpetrator are equally liable, we find the error harmless beyond a reasonable doubt in light of the necessary jury findings under other instructions given.
The trial court erred in imposing a nine-year-to-life term on Bachicha for attempted murder, a sentence not authorized by Penal Code section 664, subdivision (a). In addition, the abstract of judgment for each appellant erroneously states that he was convicted of first degree attempted murder. We remand to the trial court to correct these sentencing errors, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
On the evening of Easter Sunday 2008, Anne Marie Martinez (who was walking) and her boyfriend, Richard Lopez (who was riding his bike) were going to Lopez’s mother’s home. This was between 9:00 p.m. and 10:00 p.m. A white SUV approached them from behind and stopped. It had two doors, tinted rear windows, and the front windows were lowered. Ms. Martinez later identified appellant Bachicha as the passenger in the SUV and appellant Montano as the driver. She did not know either man. Lopez was between Martinez and the SUV. Bachicha pulled out a semiautomatic handgun, cursed, demanded to know where they were from, said “Fuck Peanuts” and repeated “Big Bassett” and “Big Bassett Grande.” Bachicha hit the gun against the door of the SUV.
Montano got out of the vehicle and said, “Who the fuck are you dogging?” and “What the fuck are you looking at?” as he approached Lopez. Montano hit Lopez in the head. He tried to get around Martinez to hit Lopez again and she pushed him. Montano socked her and pushed her back. Lopez grabbed Martinez and pulled her toward him. Martinez said, “We’re not from nowhere.” At that point Montano walked back toward the passenger door of the SUV. Bachicha opened the passenger door and got partially out. Both Montano and Bachicha got back into the SUV, and Bachicha yelled, “Fuck you, ” “Fuck Peanuts, ” “Big Bassett Grande.” Appellants drove around the corner and Bachicha fired six to eight shots toward Martinez and Lopez. Martinez saw the first shot and ran back toward Lopez to throw him to the ground. She received a grazing wound in the back as she ran. Lopez was shot in the head. The SUV drove away. It was stipulated that Lopez died from the gunshot wound to his head.
After a radio broadcast of the shooting with a description of the SUV, Montano and Bachicha were pulled over in a white Bronco SUV. Bachicha resisted submitting to a gunshot residue test in the field, which was positive. Martinez went with officers to a field identification. She saw a white SUV she was certain was the SUV involved in the shooting. The first suspect she saw was Bachicha, whom she identified immediately as the shooter. She also identified Montano as the second man in the car.
Carmen Martinez (no relationship to Anne Marie Martinez) heard the gunshots fired at Lopez and Anne Marie Martinez. She saw a white “Blazer-type” vehicle “zoom” by her home where she was gathered with family members in the front yard. Like Anne Marie Martinez, Carmen testified that there was an empty tire rack on the back of the vehicle. She thought there were four occupants. Carmen told the detective that the driver and front seat passenger had shaved heads.
Appellants were arrested and were each charged with one count of murder in violation of Penal Code section 187, subdivision (a) and one count of attempted murder in violation of Penal Code sections 664 and 187, subdivision (a). Criminal street gang and firearm allegations were alleged as to both counts. (Pen. Code, §§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d) and (e).) Appellants presented alibi defenses. They were found guilty as charged and the special allegations were found true. Each appellant was sentenced to an aggregate term of 84 years to life in state prison and filed a timely appeal. Each joins in the relevant arguments raised by the other on appeal.
DISCUSSION
I
Appellants argue the trial court erred in admitting testimony of attempts to dissuade Anne Marie Martinez from testifying at trial and to retaliate against her for her testimony. They also claim they were deprived of their federal constitutional right to due process by the erroneous admission of evidence of the intimidation incidents. Respondent contends that the issue is not of constitutional magnitude and that the trial court did not abuse its discretion in admitting the evidence.
A. Procedural Background
The first day of Ms. Martinez’s testimony was March 5, 2009. She described the shooting in detail and identified Bachicha as the shooter and Montano as the driver. At the end of the day, the prosecutor alerted the court that an incident had occurred before court that morning. Detective John Corina said the Martinez family had found “a rat trap with like a toy rat which had been painted red attached to their car on the windshield.” The Martinez family “took it... to be a sign that she’s being a rat and considered a snitch.” The prosecutor also described an incident on the night before Ms. Martinez was originally scheduled to testify at trial the previous week. Someone knocked on the window of the residence, then tried to open the back door. Ms. Martinez called police but sheriff’s officers found no one when they arrived. The trial court’s preliminary observation was that although there was no indication that appellants were connected with the incidents, the intimidation attempts could be relevant to gang conduct and intimidation. The court indicated that the issue might be revisited as the trial progressed.
Ms. Martinez returned to the witness stand the next day, March 6. She did not recant her identification of appellants as the persons involved in the shooting. She testified without hesitation about the circumstances of the shooting and her identification of appellants both in the field and at trial. On Monday March 9, 2009, the court was advised that there had been a shooting at Anne Marie Martinez’s house just after midnight that morning.
For simplicity, at times we refer to the rat incident before Ms. Martinez testified and the shooting afterward collectively as “the intimidation incidents.”
The initial police report of the shooting incident stated that Anne Marie Martinez was in bed shortly after midnight when she heard someone yell “‘Bassett’” and then five or six gunshots were fired. The report indicated that both the residence and a car had been hit by gunshots and that casings were recovered from the scene.
Over the course of the next few days the admissibility of the apparent attempts to intimidate or retaliate against Ms. Martinez was discussed by the court and counsel. Defense counsel addressed the need for evidence to establish the circumstances; the lack of evidence that appellants authorized, directed, or ratified the incidents; and relevance. They argued there already was substantial evidence regarding the street gang enhancement, which made the new intimidation evidence cumulative and thus more prejudicial than probative under Evidence Code section 352.
The prosecution offered an audio tape recording of a telephone conversation between appellant Bachicha and his father in an effort to establish a connection between Bachicha and the intimidation incidents. After listening to the recording and to argument of counsel, the trial court concluded that the relevant passages were subject to two reasonable interpretations as urged by counsel. One was that intimidation of Ms. Martinez was being discussed. The alternative and more benign interpretation was that the discussion concerned Ms. Martinez’s prior testimony in another matter and its impact on defense strategy in this trial. The trial court found the evidence relevant, but excluded it as more prejudicial than probative under Evidence Code section 352, citing in addition the undue delay and consumption of time required if the evidence was admitted. The trial court expressly warned all counsel that the intimidation incidents might be admitted in the prosecution’s rebuttal case, depending on the state of the evidence.
Appellant Bachicha testified in his own defense and denied membership or association with the Bassett gang at the time of the shooting. This testimony occurred near the end of the day. After the jury was excused, the court asked counsel to consider whether evidence of the intimidation incidents should now be admitted in light of Bachicha’s denial of gang membership. The next morning, counsel for Bachicha requested and was granted leave to reopen the defense to put his client on the stand. Bachicha changed his testimony, admitting that while he was not a member of the Bassett gang, he always had been an associate of the gang.
Montano did not testify.
The trial court observed that the circumstances had changed since its earlier ruling excluding the intimidation evidence. It noted that both appellants had presented alibi defenses. The court questioned the motivation of the Bassett gang to intimidate Ms. Martinez if appellants were not in fact the perpetrators of the original shootings. As the court saw it, Ms. Martinez had done the Bassett gang a favor by misdirecting the police investigation away from the actual perpetrators and toward appellants, who claimed they were not members of that gang. The court cited Ms. Martinez’s extensive testimony identifying appellants without recanting. The court questioned why Bassett would retaliate against her by shooting at her house if in fact appellants were not the perpetrators. It concluded that in light of the alibi defenses, the credibility of the witnesses, including Bachicha, had come into play.
The court reversed its prior ruling and ruled that evidence of the intimidation incidents was admissible as more probative than prejudicial. Counsel for Bachicha argued that the defense evidence did not provide a basis for admission of the evidence. He cited evidence of Bachicha’s gang involvement including his client’s tattoos, and photographs of Bachicha associating with Bassett gang members. He explained his defense theory was that the Easter shooting was committed by Bassett gang members, but not the two appellants.
Counsel for Montano pointed out that his client did not testify and did not disclaim membership in the Bassett gang. He argued that because the evidence was that the shooting was committed by Bassett gang members other than appellants, the gang had a motive to retaliate against Ms. Martinez. In addition, he argued that if Ms. Martinez wrongly accused Montano, Bassett gang members would be motivated to protect him even if he was not involved in these crimes. The evidence was more prejudicial than probative, he argued, because there was no evidence connecting Montano with the intimidation incidents. He questioned whether the gang was acting to protect only Bachicha rather than his client, and observed that there was no way to shield Montano from the prejudicial impact of the evidence if admitted. Counsel for Montano asserted his client’s right to confront each witness to the intimidation incidents.
The trial court ruled that evidence of the prowler at Ms. Martinez’s home before her testimony would be excluded as too speculative, but that evidence of the other intimidation incidents would be admitted.
On rebuttal, evidence of the intimidation incidents was admitted. Jesse Trujillo testified that he lived in the same house as Ms. Martinez. At 11:30 p.m. on March 4, 2009, he left the house in a rush to drive to work. He saw an item on the windshield of his car which was a toy rat painted red in a closed trap. He put it in his trunk and called the police to report the incident when he returned home from work. Trujillo also testified that he was at home on the night of Sunday, March 8. Shortly after midnight, on March 9, he was awakened by four to five gunshots being fired near the front of the house. The front living room window had a bullet hole through it and a couch in that room had been hit by a bullet. In addition, there was a bullet hole through the backseat window on the driver’s side of his car. A bullet also broke the driver’s side mirror of a second car which belonged to Trujillo’s daughter and was parked at the house.
Anne Marie Martinez testified that the rat incident caused her to be concerned for her own safety and that of her family because someone would try to kill her for identifying the people involved in the Easter shooting. She also testified about the shooting at the house on the early morning of March 9. She heard someone yell, “‘Bassett’” followed by five to six gunshots. She heard a car outside first. She described the damage to the living room window, couch, and cars.
Los Angeles County Deputy Sheriff James Shull responded to reports of shots fired at Martinez’s house. Six bullet casings were recovered from locations ranging from the middle of the street to the interior of the house. He saw the damage described by Trujillo and Martinez. Gang investigator John Corina testified that he collected the rat and trap Trujillo found. The rat symbolizes being a snitch or ratting someone out. Testifying as a gang expert, Officer Corina testified that being a rat violated the gang code of not snitching on each other. Consequences could range from intimidation to death.
B. Legal Principles
“‘“Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.”’ (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; People v. Sapp (2003) 31 Cal.4th 240, 281; People v. Burgener (2003) 29 Cal.4th 833, 869.)” (People v. Garcia (2008) 168 Cal.App.4th 261, 287-288.)
A court has wide discretion to exclude evidence under Evidence Code section 352 “‘if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116, quoting Evid. Code, § 352.) We will not disturb a trial court’s ruling under section 352 “‘“except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (Ibid.) “‘“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.”’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Falsetta (1999) 21 Cal.4th 903, 913.)
The Supreme Court has examined the meaning of prejudice in the context of the balancing test required by section 352: “‘“Prejudice” as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice.... “‘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. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) [¶] The prejudice that section 352 “‘is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.]” [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 438-439.)
C. Application
1. Admissibility as Relevant to Identity
Bachicha argues that the intimidation evidence was not relevant on the issue of identity, contrary to the trial court’s ruling that it corroborated Ms. Martinez’s identification of appellants. He asserts that there was no question that this was a gang-related first degree murder committed by a member of the Bassett gang. Instead, the issue was whether appellants or some other members of the gang were responsible for shooting Lopez and Martinez. He argues: “Appellant finds no authority for the proposition that intimidation not directed by defendant is admissible as substantive evidence of his identity because it shows the intimidator thinks defendant is guilty. That rationale permits non-party hearsay of speculative reliability on an ultimate issue.” Bachicha argues that admissibility on this theory is dependent on speculation about why the Bassett gang intimidator believed Martinez had correctly identified appellants as perpetrators of the shooting, and that in light of the inflammatory nature of the evidence, the trial court abused its discretion in admitting the evidence under section 352.
Appellant Montano also argues that Bachicha’s testimony did not make the intimidation incidents relevant or probative on the identity of the perpetrators. He contends that evidence of witness intimidation is not admissible unless there is evidence that the defendant authorized the attempt, citing People v. Williams (1997) 16 Cal.4th 153, 200 and People v. Hannon (1977) 19 Cal.3d 588, 597-599.
The general rule is that evidence of an attempt by a third person to suppress evidence is inadmissible against a defendant when the attempt did not occur in the defendant’s presence and the defendant did not authorize the attempt. (People v. Garcia, supra, 168 Cal.App.4th 261, 287, citing People v. Williams, supra, 16 Cal.4th 153, 200-201.) There was no direct evidence linking appellants and the intimidation incidents. Therefore the jury could not properly infer a consciousness of guilt on the part of appellants based on the intimidation incidents. However, evidence that the Bassett gang members took action against Martinez was relevant to establish appellants’ connection to the gang.
Moreover, as we next discuss, the intimidation evidence was probative of Martinez’s credibility, and was admissible on that additional ground.
2. Admissibility as Relevant to Credibility
Appellant Bachicha argues there was no evidence that Ms. Martinez was placed in fear or altered her testimony in response to the intimidation incidents. He cites Martinez’s identification of himself as the gunman and Montano as the driver during the prosecution’s case-in-chief, both before and after the rat incident. Bachicha also cites Martinez’s testimony that the rat incident did not affect her willingness to come to court to testify. The prosecution’s gang expert, John Corina, testified that Ms. Martinez was very courageous and unlike witnesses in other cases who were afraid to testify in gang cases. Bachicha also argues that the shooting incident, which occurred after Martinez testified, could not have had any impact on her testimony. Based on this record, he contends the intimidation and retaliation evidence was not relevant to Ms. Martinez’s credibility.
Unlike many witnesses who are subjected to intimidation, Ms. Martinez was not dissuaded; she identified appellants as involved in the shooting. She testified on rebuttal that when she learned of the toy rat incident she became concerned for her safety or for the safety of others in her family. The redness on the rat meant to her that the person or persons responsible were going to try to kill her because of her identification of the perpetrators of the shooting. She testified that she and the former occupants no longer lived at the home where the retaliation shooting occurred.
The governing principle is that “except as otherwise provided by statute, all relevant evidence is admissible.” ([Evid. Code, ] § 351.) Relevant evidence includes evidence “relevant to the credibility of a witness....” ([Evid. Code, ] § 210.) Most cases involving evidence of witness intimidation involve a witness who is reluctant to testify at trial or who, out of fear, recants information given to the police incriminating the defendant. As appellants point out, this case is unusual because despite her fear, Ms. Martinez repeatedly identified appellants as the persons involved in shooting her and Lopez.
“Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. (People v. Malone (1988) 47 Cal.3d 1, 30; People v. Warren (1988) 45 Cal.3d 471, 481; see generally Evid. Code, § 780.) An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]” (People v. Burgener, supra, 29 Cal.4th at p. 869.)
This rule has been applied even where the witness is not dissuaded from testifying and does not recant statements helpful to the prosecution. People v. Green (1980) 27 Cal.3d 1, overruled on a different ground in People v. Martinez (1999) 20 Cal.4th 225, is instructive. In that case, the defendant was convicted of murdering his wife, who died from a shotgun wound to the head. Don Sheehan, a prosecution witness, testified that he provided a shotgun to defendant the day of the murder. He testified that he had told arresting officers he was afraid to go to prison on a pending parole violation charge because defendant “‘had a lot of friends there.’” (Green, supra, at p. 19.) The Supreme Court held that the testimony was admissible as relevant to Sheehan’s credibility. Sheehan had testified that authorities promised him he would not be sent to prison on his parole violation. The prosecutor correctly anticipated that the defense would attack Sheehan’s credibility by suggesting that this promise was a motive to give testimony favorable to the prosecution. To bolster Sheehan’s credibility the prosecutor sought to show that the promise to Sheehan was solely to allay his fear of retaliation in prison. (Id. at p. 20.) The court also noted that all the principal prosecution witnesses were ex-felons who faced ostracism “or worse” if they gave information to the police. (Ibid.)
The Green court held: “In the circumstances, the fact that Sheehan was willing to testify against a former member of the group despite his fear of retaliation was supportive of the credibility of his testimony.” (People v. Green, supra, 27 Cal.3d at p. 20.) The court concluded the trial court did not abuse its discretion in admitting Sheehan’s testimony about fear of retaliation.
In addition, there were several other instances in Green in which prosecution witnesses spoke of concern for their personal safety and about protective measures taken by authorities. The defendant contended that these threats were not admissible unless linked to him. (People v. Green, supra, 27 Cal.3d at p. 20.) The Supreme Court rejected this argument, characterizing it as “misdirected” because the prosecution never claimed that the witnesses’ fear was the result of any effort on the defendant’s part to procure false testimony. (Ibid.)
People v. Green, supra, 27 Cal.3d 1, was followed in People v. Olguin, supra, 31 Cal.App.4th 1355. In that murder case, the defendants objected to the trial court’s admission of evidence that third parties threatened a witness to the shooting. The Olguin court distinguished between admission of witness intimidation evidence for consciousness of guilt, which requires evidence connecting the defendant to the threat, and admission as relevant to the credibility of the witness, which does not. In Olguin, there was no argument or suggestion that the intimidation evidence reflected consciousness of guilt. It was strictly limited to establishing the witness’s state of mind, and a limiting instruction to that effect was given. (Id. at p. 1368.) Similarly, here the only mention of the intimidation in argument came in the prosecutor’s rebuttal. He emphasized that there was no evidence that either appellant placed the rat on a car at Martinez’s home. The prosecutor used the evidence to emphasize the gang’s protection of its members.
Although counsel for both appellants strenuously objected to admission of evidence of the intimidation incidents, neither requested an instruction similar to that given in Olguin limiting the evidence to Ms. Martinez’s state of mind, attitude, actions, bias, or prejudice. Failure to request such a limiting instruction forfeits the point on appeal. (People v. Davis (2005) 36 Cal.4th 510, 550.)
The prosecutor argued: “Somebody drove by and subsequently fired, I guess, six rounds-I think that’s how many casings they found at the scene-and yelled Bassett.... Mr. Bachicha might not have-Mr. Montano might not have asked anybody to do that on their behalf, but how tight to the gang do you think they are? They step up to the plate for each other. They protect each other. And that’s an illustration-one illustration of it.”
The Olguin court explained why evidence of witness intimidation is admissible where the witness was not dissuaded from testifying. “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.... [T]he fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat.... [¶] Regardless of its source, the jury would be entitled to evaluate the witness’ testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear.” (People v. Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)
In our case, the jury was entitled to consider Ms. Martinez’s willingness to testify despite fear of reprisal because it was relevant to her credibility. The trial court carefully weighed the potential prejudice against this probative value. There was no evidence directly linking appellants with these incidents, a fact emphasized by the prosecutor in closing argument. We find no abuse of the trial court’s discretion in admitting evidence of the intimidation incidents.
Appellants’ counsel did not request an instruction barring the use of this evidence on the issue of identification, but should not be faulted on that account since the court already had ruled that it was admissible for that purpose. The trial court’s basis for this ruling is somewhat difficult to follow, but the jury never heard it. The prosecutor did not argue to the jury that this evidence bore on identification, but only argued it on the issues of Martinez’s credibility and to demonstrate appellants’ gang affiliation. It was admissible on those grounds. On this record we find any error in the court’s reasoning in its discussion outside the presence of the jury was harmless under either state or federal standards. (See People v. Jablonski (2006) 37 Cal.4th 774, 821.)
II
Appellants argue the trial court erred in giving CALCRIM No. 371 over objection. This instruction allows the jury to consider whether efforts by the appellants to suppress evidence against them raised an inference of consciousness of guilt. As given, the instruction read: “If a defendant tried to hide evidence against him, that conduct may show that he was aware of his guilt. If you conclude that a defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If you conclude that a defendant tried to hide evidence, you may consider that conduct only against the defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty.”
Montano, joined by Bachicha, argues the instruction should not have been given because the evidence did not support an inference of consciousness of guilt. He contends: “In directing the jury’s attention to evidence that appellant attempted to hide or suppress evidence by having his fellow members of Bassett intimidate and retaliate against Martinez, CALCRIM 371 acted as an improper factual pinpoint instruction in favor of conviction.” He asserts that this unconstitutionally shifted the balance of the instructions against the defense in violation of the state and federal constitutional guarantees of due process.
The trial court explained why CALCRIM No. 371 was given: “I’ve prepared this instruction in light of the evidence of Mr. Bachicha’s conduct following the traffic stop and his reluctance, if you will, to provide a gunshot residue sample as detailed by Deputy Gallagher. I think an argument could be made that the change in the defendant’s appearance including Mr. Montano has differed from the way Miss Martinez described their appearance at the time of the incident could be construed as an effort to change their appearance for purposes of in-court identification, at least to some degree. In part, it could support this instruction like suppression of evidence....” Counsel for appellants objected to the instruction, arguing the evidentiary basis was insufficient, in part because there were innocent reasons for the changed appearance of appellants at trial. The court acknowledged that alternative explanations were possible. But an innocent explanation did not mean that the instruction does not apply.
The colloquy about the instruction makes it clear that the evidentiary basis for the instruction was not the intimidation incidents. Instead, the evidentiary basis was Bachicha’s resistance to gunshot residue testing and testimony that appellants had changed their appearance between the shooting and trial. There was no argument by the prosecutor that linked CALCRIM No. 371 and the intimidation incidents.
CALCRIM No. 371 is similar to CALJIC No. 2.06 which repeatedly has been found proper when challenged as impermissibly one-sided and argumentative in allowing juries to draw impermissible inferences of guilt. (People v. Tate (2010) 49 Cal.4th 635, 698; see also People v. Wilson (2005) 36 Cal.4th 309, 330 [rejecting claim that CALJIC No. 2.06 lessens prosecutor’s burden of proof].) In Tate, substantial evidence supported the instruction on concealing evidence where the defendant threw away bloody socks and the red leather suit he was wearing on the day of the murder had been washed. (People v. Tate, supra, 49 Cal.4th at p. 698.) Like CALJIC No. 2.06, CALCRIM No. 371 cautions the jury that evidence of an attempt to suppress evidence is not sufficient in itself to prove guilt. We conclude the instruction is not an impermissibly one-sided pinpoint instruction favoring the prosecution.
CALJIC No. 2.06 provides: “If you find that a defendant attempted to suppress evidence against [himself] [herself] in any manner, such as [by the intimidation of a witness] [by an offer to compensate a witness] [by destroying evidence] [by concealing evidence] [by ________], this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
We also conclude there was a sufficient evidentiary basis for the instruction. Anne Marie Martinez identified Bachicha in the courtroom as the passenger who fired the shots and Montano as the driver. She said that at the time of trial, Bachicha had more hair. Montano also had grown out his hair and was wearing eye glasses at trial but had not on the night of the shooting. Carmen Martinez testified that she told the detective that the driver and front seat passenger in the white SUV had shaved heads, but could not identify them.
California courts have held that a defendant’s change of appearance between commission of the crime and trial is evidence from which a trier of fact may infer a consciousness of guilt. (People v. Randle (1992) 8 Cal.App.4th 1023, 1036.)
III
Bachicha, joined by Montano, argues the court’s instruction that consciousness of guilt may be inferred from evidence of flight violated federal due process. They contend it “invited a wholly irrational means to infer guilt” citing United States v. Littlefield (1st Cir. 1988) 840 F.2d 143, because identity was in issue and the jury would have been required to determine he was the perpetrator before it could infer consciousness of guilt from evidence of flight.
Penal Code section 1127c requires an instruction where there is evidence of flight: “In any criminal trial... where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” (See also People v. Mendoza (2000) 24 Cal.4th 130, 179 (Mendoza).)
In People v. Mason (1991) 52 Cal.3d 909, the defendant argued it was error to instruct the jury on flight where identity is a contested issue because he had provided an alibi defense for three of the murders charged. The Supreme Court rejected the argument, reasoning: “If there is evidence identifying the person who fled as the defendant, and if such evidence ‘is relied upon as tending to show guilt, ’ then it is proper to instruct on flight. ([Pen. Code, ] § 1127c.) ‘The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury’s need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.’ [Citation.]” (Id. at p. 943; see also People v. Avila (2009) 46 Cal.4th 680, 710.)
Here, testimony by Anne Marie Martinez identified appellants as the perpetrators of the shooting and as the persons detained by deputies a short distance from the crime scene in a vehicle that matched her description of the SUV used in the shooting. This was sufficient to support the instruction on flight. (People v. Mason, supra, 52 Cal.3d at p. 943) The jury reasonably could find appellants fled to avoid apprehension and that their flight was motivated by a consciousness of guilt. In addition, the jury was instructed “Some of these instructions may not apply, depending on your findings about the facts of the case.... After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” We find no error in giving this instruction.
Nor does the instruction raise an impermissible inference of guilt. The Mendoza court held that the due process clauses of the federal Constitution (5th and 14th amendments) “require a relationship between the permissively inferred fact and the proven fact on which it depends” which had been described as a “‘rational connection’” “‘more likely than not, ’” and “‘reasonable doubt.’” (Mendoza, supra, 24 Cal.4th at p. 180.)
The Supreme Court held that “[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citations.]” (Mendoza, 24 Cal.4th at p. 180.) It explained: “This test permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt. Thus, here the flight instruction does not violate due process.” (Ibid.) As in Mendoza, in light of the evidence of flight, the instruction on flight did not violate due process.
IV
Appellant Montano challenges the sufficiency of the evidence to support his conviction of murder and attempted murder as an aider and abettor on either theory advanced by the prosecutor. His primary argument is that there is no evidence that he and Bachicha intended to commit a random shooting of innocent people who were not gang rivals because such a shooting would not result in additional status within their gang. He contends that once it was established that the victims were not gang rivals, he returned to the vehicle and started to drive away. Bachicha’s shooting of the victims was neither planned nor a natural and probable consequence of the confrontation.
When considering a challenge to the sufficiency of the evidence, we presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina).) We focus on the whole record rather than on isolated bits of evidence. (Ibid.)
The jury was instructed on two aiding and abetting theories. First, that Bachicha intended to commit the charged crimes (murder and attempted murder), that Montano knew of Bachicha’s intent, that Montano intended to aid and abet Bachicha in the commission of these crimes, and that Montano did in fact aid and abet their commission. Alternatively, the jury was instructed on the natural and probable consequences theory of aiding and abetting. The jury was told the prosecution had to prove that Montano aided and abetted Bachicha in committing the target crimes of either brandishing a weapon or assault with a firearm, the natural and probable consequences of which were the murder and attempted murder.
A. The Gang Evidence
Los Angeles Deputy Sheriff Ron Duval testified as a gang expert for the prosecution. He described field identification cards regarding police contact with Montano and Montano’s association with known members of the Bassett gang in locations claimed by that gang. Deputy Duval also relied on a field interview card regarding a contact by deputy sheriffs with Bachicha in 2002 in which Bachicha claimed the Bassett gang although he had not been jumped in. This meant that Bachicha was an associate of the gang. In addition, Bachicha had Bassett tattoos by 2007. Deputy Duval explained that in order to have a gang tattoo, Bachicha would have to have reached full gang membership. Photographs of Bachicha throwing Bassett gang signs and brandishing firearms also were considered by Deputy Duval. According to Deputy Duval, the Planter’s Peanuts Mr. Peanut character is associated with the Puente gang, bitter rivals of Bassett. This explains that when Bachicha yelled “Fuck Peanuts, ” to Lopez and Martinez, he was referring to a gang rival.
Deputy Duval testified that the Puente gang was extremely violent and that the shooting was in Puente territory. Gang members would not initiate a confrontation with rivals unless they were armed. The initial part of the incident in which the victims were challenged by appellants was a direct challenge. Typically, in a gang setting, this confrontation would be followed by a shooting, particularly where one perpetrator had banged his gun against the door of the vehicle. According to Deputy Duval, the circumstances established that appellants were on a mission to shoot someone for the benefit of the Bassett gang when they entered Puente territory. Under these circumstances, the driver would expect the passenger to be armed.
B. Aiding and Abetting Charged Crimes
“To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.’ [Citations.] In addition, except under the natural-and-probable-consequences doctrine [citations] the person must give such aid or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, ’ the crime in question. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623-624, first italics added.) The Supreme Court explained the application of these principles to a defendant charged with aiding and abetting attempted murder: “[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing-which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]” (Id. at p. 624.)
The evidence established that Montano and Bachicha were involved in the Bassett gang and that they entered the territory of the rival Puente gang where the shooting occurred. Montano knew Bachicha was armed with a handgun. He personally engaged in a physical confrontation with the victims and made statements indicating he believed they had disrespected appellants. Montano drove Bachicha to the scene of the shooting and away from the scene after the shooting. Montano was thus an active participant in the confrontation with the victims; he was not simply the driver of the getaway vehicle. The jury could reasonably infer Montano was aware that Bachicha had banged the gun on the door of the vehicle during the confrontation. Deputy Duval testified that when a gang member bangs a gun on a vehicle door, a shooting will follow. The evidence established that Montano took steps to help carry out and cover-up the shootings. Montano’s liability for murder and attempted murder as an aider and abettor is supported by substantial evidence that he knowingly encouraged the murder of Lopez and attempted murder of Martinez. (See People v. Garcia, supra, 168 Cal.App.4th 261, 274.)
C. Natural and Probable Consequences
“‘“[A] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The... question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]” [Citation.] Liability under the natural and probable consequences doctrine “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” [Citation.] [¶]... A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury.’ [Citation.]” (People v. Ayala (2010) 181 Cal.App.4th 1440, 1449.)
For purposes of argument, Montano concedes the sufficiency of the evidence to support a finding that he intentionally encouraged or facilitated a brandishing or assault with a firearm when he and Bachicha initially confronted the victims. But, he argues, the expected confrontation with the victims ended when he confirmed that they were not Puente gang members and returned to the vehicle. He contends that as he drove away, Bachicha unexpectedly fired on the victims and that therefore there was no evidence that the shooting was a natural and probable consequence of the confrontation.
The application of the natural and probable consequences theory of aiding and abetting in the context of a gang assault which leads to a fatal shooting was addressed by the Supreme Court in Medina, supra, 46 Cal.4th 913. In Medina, a verbal challenge by the defendants resulted in a fistfight between three defendants and the victim, who was a member of a rival gang. After the fistfight ended, one of the defendants shot and killed the victim as he was driving away from the scene of the fight with a friend. The gunman was convicted of murder and attempted murder of the victim’s companion. Two other participants in the fistfight were found guilty of the same offenses as aiders and abettors.
The Medina court concluded that a rational trier of fact could have found that the shooting was a reasonably foreseeable consequence of the gang assault. (Medina, supra, 46 Cal.4th at p. 922.) Defendant and his fellow gang members challenged the victim by asking, “‘Where are you from?’” (Ibid.) A lay witness and a gang expert both testified that this query, meaning “what gang are you from, ” could lead to a physical altercation and even death. (Ibid.) In light of evidence that the initial assault on the victim was gang-related, and the ability of the victim to hold his own in the fistfight, the court determined that “the jury could reasonably have found that a person in defendants’ position (i.e. a gang member) would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable....” (Id. at pp. 922-923.)
This conclusion was supported by expert evidence of a gang’s need for retaliatory action in the face of disrespectful behavior and the history of gun offenses committed by the defendants’ gang. Under these circumstances, the court held that the jury could reasonably have inferred that a member of defendants’ gang would have been armed or would have, or should have, known that a fellow gang member was armed during this confrontation. (Medina, supra, 46 Cal.4th at p. 923.) The foreseeability of the shooting was supported by evidence that at least two of the defendants knew a gun was available at the scene. (Id. at p. 924.)
The court in Medina rejected an argument that the fistfight and shooting were two separate incidents, concluding that the shooting resulted directly from the fight. (Medina, supra, 46 Cal.4th at pp. 923-924.) It reasoned: “[I]n the gang context, it was not necessary for there to have been a prior discussion of or agreement to a shooting, or for a gang member to have known a fellow gang member was in fact armed.” (Id. at p. 924.) Evidence that the defendants fled after the shooting was treated as an additional factor suggesting aiding and abetting liability. (Ibid., and p. 927; see also People v. Olguin, supra, 31 Cal.App.4th 1355, 1376 [escalation of gang-related confrontation from shouting to a fistfight to fatal shooting found “much closer to inevitable than it was to unforeseeable”]; People v. Ayala, supra, 181 Cal.App.4th at pp. 1452-1453 [shooting was natural and probable consequence of gang plan to attack gang rivals with fists and bat during an ongoing gang war].)
In our case, the evidence established that the confrontation began when the SUV pulled up next to the victims and Bachicha brandished a handgun and demanded to know “‘Where the fuck you from?’” Bachicha repeated the name of the Bassett gang and said, “Fuck Peanuts” which was a derogatory reference to the rival Puente gang. Bachicha hit the gun against the door of the SUV. The confrontation escalated when Montano got out of the SUV rather than driving away. Montano asked “who the fuck are you dogging?” and “what the fuck are you looking at” as he approached Lopez. Montano then hit Lopez in the head. Martinez intervened and pushed Montano, who hit her. This was evidence of the type of disrespect that was a key to the foreseeability of escalating violence in Medina, supra, 46 Cal.4th 913. Once both appellants were back in the SUV, Bachicha yelled gang slogans and “Fuck you.”
Deputy Duval’s testimony provided additional evidence that in the context of the gang culture in which appellants operated, the shooting was a natural and probable consequence of the confrontation. He opined that this type of confrontation in which Bachicha was brandishing a gun and banging it against the vehicle door would be followed by a shooting. Montano was aware that Bachicha was armed at the outset of the confrontation. Under these circumstances, the shooting was a natural and probable consequence of the armed confrontation of strangers in a rival gang’s territory.
We conclude that Montano’s convictions of murder and attempted murder for aiding and abetting Bachicha is supported by substantial evidence.
V
In a related argument, Montano challenges the instructions on aiding and abetting. The court gave CALCRIM No. 400 which stated: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.”
In response to People v. McCoy (2001) 25 Cal.4th 1111 and People v. Samaniego (2009) 172 Cal.App.4th 1148, the instruction was revised in April 2010. It now reads: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally oraided and abetted the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]”
While his trial counsel failed to object to the instruction as given, Montano argues he may now challenge the instruction because it was misleading. He argues CALCRIM No. 400 is constitutionally defective because it precluded the jury from finding him guilty of a lesser offense than Bachicha on the aiding and abetting theory. He contends this instructional error eliminated the need for the jury to make factual determinations as to his intent, willfulness, deliberation and premeditation before finding him guilty of first degree murder. Respondent argues the point was not preserved. Where an instructional error affects the appellant’s substantial right, no objection is required to preserve the issue. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
Montano argues CALCRIM No. 400 is constitutionally defective because it fails to inform the jury that an aider and abettor can be guilty of a lesser offense than the perpetrator.
Respondent argues that People v. McCoy, supra, 25 Cal.4th 1111 and People v. Samaniego, supra, 172 Cal.App.4th 1148, on which Montano relies, are distinguishable because neither involved the natural and probable consequences theory of aiding and abetting. Alternatively, respondent argues that even if CALCRIM No. 400 was misleading, the error was harmless beyond a reasonable doubt because the jury necessarily resolved the issue of Montano’s mental state against him under the other proper instructions given.
Where an instruction is misleading, we measure the effect of this error under Chapman v. California (1967) 386 U.S. 18, 24, finding the error harmless only if, beyond a reasonable doubt, the jury verdict would have been the same absent the error. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) In People v. McCoy, supra, 25 Cal.4th at page 1120, the court held that an aider and abettor could be guilty of a greater offense than the direct perpetrator, emphasizing that the mens rea of the aider and abettor is personal and may be different from the mens rea of the perpetrator. People v. Nero (2010) 181 Cal.App.4th 504 and People v. Samaniego, supra, 172 Cal.App.4th 1148, applied the reasoning of McCoy, in holding that an aider and abettor may be guilty of a lesser offense than the perpetrator. Both courts found CALCRIM No. 400 to be erroneous because it instructed the jury that the liability of the perpetrator and aider and abettor was equal. (Nero, supra, 181 Cal.App.4th at p. 507; Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165.) Montano argues that under this line of authority, the version of CALCRIM No. 400 given was erroneous and that this instructional error requires reversal.
We agree CALCRIM No. 400 did not inform the jury that the aider and abettor may be guilty of a lesser crime than the perpetrator. But we find any error harmless beyond a reasonable doubt because under other instructions, the jury necessarily found Montano acted with the requisite intent to support the convictions for murder and attempted murder.
The court gave CALCRIM No. 203 on multiple defendants, which told the jury: “Unless I tell you otherwise, all instructions apply to each defendant.” As respondent points out, the court also gave CALCRIM No. 520 which used the term “defendant” without distinguishing between the perpetrator or the aider and abettor. That instruction provided that on the murder count, the prosecutor was required to prove “1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought.” The instruction defines both express and implied malice. Similarly, CALCRIM No. 521 uses the term “defendant” rather than distinguishing between “perpetrator” or “aider and abettor” and informs the jury: “A defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.”
In contrast, the instructions on the personal use of a firearm expressly were limited to defendant Bachicha.
The instruction on attempted murder for count two (CALCRIM No. 600) also required the jury to find that the defendant intended to kill Martinez. It further explained: “In order to convict a defendant of the attempted murder of Anne Marie Martinez, the People must prove that the defendant not only intended to kill Richard Lopez but also either intended to kill Anne Marie Martinez, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Anne Marie Martinez or intended to kill Richard Lopez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Anne Marie Martinez.” (Italics added.) The jury was instructed with CALCRIM No. 200 which directed it to consider the instructions together.
Considering the instructions as a whole, as we must, we find that any confusion caused by CALCRIM No. 400 was rectified by the other instructions we have discussed which required the jury to find that Montano acted with the requisite intent. These instructions made it clear that appellants could not be found guilty of murder or attempted murder without the requisite mental state. The jury found Montano guilty of the willful, deliberate and premeditated murder of Lopez. It also found that Montano unlawfully and with malice aforethought attempted to murder Martinez.
VI
Appellants argue, and respondent concedes, that the trial court made sentencing errors. Bachicha argues the court erred when it imposed an indeterminate term of nine years to life for count two, attempted murder. He points out that the information did not allege a level of attempted murder on count two. Although the court initially imposed the determinate upper term of nine years for the attempted murder conviction, it subsequently issued a nunc pro tunc order that imposed an indeterminate term of nine years to life for count two. Under Penal Code section 664, subdivision (a), nine years is the greatest term authorized for attempted murder where the accusatory pleading does not charge that the attempted murder was willful, deliberate or premeditated. The information here did not include that allegation and the verdict form reveals that the jury was not asked to make that finding.
Respondent concedes that because willful, deliberate or premeditated attempted murder was neither charged nor found true by the trier of fact, the imposition of an indeterminate sentence of nine years to life was improper. Accordingly, we remand to the trial court to vacate the imposition of the nine-year-to-life term on count two and to impose the maximum sentence on that count, nine years. That is the term reflected on the abstract of judgment.
Montano also asks us to correct the abstract of judgment, which erroneously states that he was convicted of first degree attempted murder. The same error appears on Bachicha’s abstract of judgment. Respondent concedes that this was error requiring correction of the abstracts of judgment by striking the term “1st DEG” after attempted murder for count two. We agree that this error requires correction of the abstracts of judgment.
DISPOSITION
The matter is remanded to the trial court to correct the sentence as to appellant Bachicha on count two and to correct the abstract of judgment on count two as to both Bachicha and Montano by deleting any reference to first degree attempted murder. In all other respects, the judgments of conviction are affirmed.
We concur: WILLHITE, J., MANELLA, J.