Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072460 Mark C. Kim, Judge.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Jesus Miguel Sedillo appeals the judgment entered following his conviction by jury of criminal offenses arising out of two separate incidents, one on September 23, 2006, and the other on October 31, 2006. With respect to the first incident, Sedillo was convicted of first degree murder committed for the benefit of a criminal street gang in which he personally discharged a firearm causing death. (Pen. Code, §§ 187, 186.22, subd. (b)(1), 12022.53, subd. (d).) With respect to the second incident, Sedillo was convicted of first degree murder and two counts of attempted murder committed for the benefit of the criminal street gang. (§§ 187, 664/187, 186.22, subd. (b)(1).) The jury found Sedillo personally discharged a firearm causing death or great bodily injury as to two of the counts, and that he personally discharged a firearm as to the remaining count. (§ 12022.53, subds. (d), (c).) As to each count of murder, the jury found true the special circumstance allegations that Sedillo committed more than one offense of murder (§ 190.2, subd. (a)(2)) and that he personally discharged a firearm from a motor vehicle at a person outside the vehicle (§ 190.2, subd. (a)(21)).
Subsequent unspecified statutory references are to the Penal Code.
Sedillo contends the trial court erroneously refused to sever the trial of the two incidents, the evidence was insufficient in several respects, defense counsel rendered ineffective assistance, and the trial court committed instructional error with respect to the incident of October 31, 2006. Sedillo also asks this court to review the sealed transcript of the in camera hearing on his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531). (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
We reject Sedillo’s substantive contentions, find no error in the trial court’s handling of the in camera hearing and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The People’s evidence.
a. The September 23, 2006, murder of Manuel Lopez.
On September 18, 2006, Hector Zamora, a member of the West Side Wilmas gang, participated in the murder of Sam Saucedo, aka Dead Eyes, a member of a rival gang, the East Side Wilmas. Zamora pleaded guilty to manslaughter and was sentenced to 21 years in state prison.
On September 23, 2006, members of the East Side Wilmas held a carwash to pay Saucedo’s funeral expenses in Wilmington at L Street and Avalon Boulevard. Josefina Gutierrez attended the carwash. At the time, she was living with Jose Muratalla and she owned a silver four-door Honda Accord.
At about 6:50 p.m. on September 23, 2006, Jose Sanchez was walking north on Neptune Avenue near his home in Wilmington in an area claimed by the West Side Wilmas. Sanchez was aware of the West Side and East Side Wilmas, but was not a gang member. As Sanchez got to F Street, he noticed a silver Honda Accord approaching him. Sanchez thought the Honda was his friend’s vehicle. When the car got closer, Sanchez could see it was not his friend’s car. However, he recognized the person in the passenger seat as Sedillo, with whom Sanchez had attended middle school and Banning High School. In high school, Sedillo associated with members of the East Side Wilmas gang. Sedillo and Sanchez looked at each other. However, Sanchez did not want to stare at Sedillo so he immediately turned, looked straight ahead and kept walking. Sanchez thought it was unusual that Sedillo would be in an area claimed by the West Side Wilmas. The Honda slowed to turn right towards F Street. No more than 20 seconds after Sanchez saw Sedillo, Sanchez heard several gunshots. On his return from the store, Sanchez saw a crime scene at Bay View Avenue and F Street and immediately thought it was related to the gunshots he had heard.
Sanchez identified Sedillo in a photographic lineup and testified he had no doubt it was Sedillo in the passenger seat of the Honda. Sanchez was unsure whether the Honda was a two-door or a four-door car. Sanchez requires glasses for reading but he is able to see people and identify objects. Sanchez last saw Sedillo when Sanchez was in ninth grade, approximately three years prior to the shooting.
On cross examination, Sanchez admitted he told a detective the Honda was a gray two-door vehicle. Sanchez also conceded that, at the preliminary hearing under questioning by defense counsel, Sanchez stated defense counsel was “creating doubt in me now, sir.”
Zamora, the individual who admitted participation in the murder of Saucedo, testified that on September 23, 2006, he and 17-year-old Manuel Lopez were walking in the area of F Street and Bay View Avenue. They were walking separately because both had been served with a gang injunction prohibiting them from associating with other gang members. Although Lopez was not a gang member, the injunction had been served on him. Zamora heard a car, turned and saw the back of the car, then ran. Zamora did not see the inside of the car. He heard approximately six gunshots and jumped over a fence. Zamora ran through an alley, made a left on Bay View Avenue and went back to the corner where he saw Lopez on the ground at the northwest corner.
Alexandra Orozco was in her home near the intersection of F Street and Bayview Avenue on September 23, 2006, at approximately 6:50 p.m. when she heard six or seven gunshots followed by screaming. She looked outside and saw a Honda Accord speeding away. Orozco described the car as white in color but it could have been any light color because the sun was reflecting off it. She saw no other cars moving at that time.
Manuel Lopez suffered six gunshot wounds, four of which would have been fatal.
Detective Louis Paglialonga arrived at the scene of the shooting at approximately 8:10 p.m. He found seven expended nine-millimeter shell casings on the northwest corner of F Street and Bayview Avenue. The location of these casings was consistent with a weapon having been fired from the right side of a vehicle going north.
b. The October 31, 2006 incident.
On October 31, 2006, teenager Edward Villegas and his cousin, Richard Romero, went to a party in Wilmington across the street from Banning High School. They met Richard’s sister, Jessica Romero, at the party. Los Angeles police officers dispersed the teenagers attending the party about 10:20 p.m.
Villegas drove Richard and Jessica Romero from the party in his white Blazer. They were driving toward Long Beach on Pacific Coast Highway when they decided to go to a taco stand in the opposite direction. Villegas turned left on Eubank Avenue, then made a U-turn and drove back toward Pacific Coast Highway. As Villegas drove on Pacific Coast Highway, a silver Nissan pulled right next to Villegas’s Blazer. Villegas looked over and saw the driver was wearing a mask that had hair and bright yellow teeth which made Villegas think it was a wolf mask. The driver bobbed his head up and down and looked at Villegas. Villegas turned his attention toward the road, then saw a flash from the corner of his eye. The driver’s window of the Blazer shattered and Villegas was shot under the chin, on his arm and on his chest. Villegas tried to catch the Nissan until he realized Richard Romero had been shot. Villegas saw a police officer and swerved to attract the officer’s attention. Villegas testified the teeth and the hair of the mask in evidence were similar to the mask worn by the shooter.
Jessica Romero testified she was in the middle of the backseat of the Blazer, her brother was in the front passenger seat and Villegas was driving. None of them had been drinking or smoking at the party. There were no weapons in the car, they had no problems with anyone that night and none of them were gang members. Jessica noticed a car speeding up behind them. The car, which was occupied only by the driver, pulled next to them on their driver’s side. The driver was wearing a mask, similar to the one in evidence, that had hair and teeth and looked like a werewolf mask. Jessica saw the driver raise his arm with something in it and then saw a flash after which the driver’s window of the Blazer shattered. Jessica looked over at her brother, then ducked. When Jessica realized her brother had been shot, they yelled to a police car for help. No one in Jessica’s car flashed gang signs or pointed weapons at the other car. Jessica told the police the shooter’s car looked like a silver Honda.
Richard Romero died of a gunshot wound to the head. Romero had no tattoos and no drugs or alcohol in his system.
c. Arrest and subsequent interviews of Sedillo.
On November 21, 2006, Detective Paglialonga and other officers executed a search warrant at Sedillo’s home in the City of Carson. Paglialonga found.38 caliber rounds, 20 gauge shotgun rounds and miscellaneous papers with gang writing in Sedillo’s bedroom. A Halloween mask which resembled a skull with hair was found in the bedroom of Sedillo’s brother, Raymundo. Shotgun shells and ammunition of various calibers also were recovered in Raymundo’s bedroom.
Sedillo was taken to the Harbor Station and, at approximately 2:00 p.m., Paglialonga and Detective Michael Falvo conducted a tape-recorded interview of Sedillo. With respect to the shooting of September 23, 2006, Sedillo said his cousin, Yvette Vasquez, aka Chika, was Saucedo’s girlfriend and that Sedillo’s family historically is an East Side Wilmas family. Sedillo stated he purchased the ammunition at a yard sale and that he liked to collect bullets. Sedillo initially denied he had even been a passenger in a newer Honda Accord. However, later in the interview, he remembered that he sat in the backseat of a light colored Honda on the day of Saucedo’s carwash. Sedillo refused to state who owned the Honda but said it was driven by that person’s girlfriend and there was a baby in a baby seat in the back.
Paglialonga then questioned Sedillo about the mask found in his home and his whereabouts on the night of October 31, 2006. Sedillo admitted he wore the mask to pick up his girlfriend in his Nissan Maxima and admitted he had read about the shooting on Pacific Coast Highway in the newspaper but denied involvement in the shooting. Detective Falvo advised Sedillo their investigation indicated Sedillo was responsible for the shooting and stated that, if Sedillo had “a reason for doing what you did, we need to know it today.” “[M]aybe your reason is justifiable. Maybe it makes perfect sense why you did what you did” Sedillo again stated he went to his girlfriend’s house and “might have been with my brother and a friend, but... we just chilled for a little bit.”
Although Paglialonga did not testify about this portion of the Harbor Station interview during the People’s case in chief, the audiotape recording of the Harbor Station interview was played for the jury in the defense portion of the case. In the interests of continuity, we supplement Paglialonga’s summary of the Harbor Station interview to include other relevant portions of it.
Falvo again indicated Sedillo had been identified and asked for Sedillo’s side of the story. At that point, Sedillo asked to have his lawyer present. Paglialonga indicated there is always more than one side to a story and “maybe the guy [that] got killed, maybe he’s the one that started it.” Paglialonga suggested someone might have seen Sedillo wearing the mask and “got freaked out about it or whatever and you had to do what you had to do to protect yourself....” “Because that’s, you know, self protection.”
After Sedillo again asked to have his attorney present, Paglialonga indicated Sedillo was going to be arrested on an outstanding misdemeanor bench warrant and would go to court the next day.
Los Angeles Police Officer David Cortez and Detective Falvo transported Sedillo to Parker Center for booking on the misdemeanor warrant. En route to Parker Center, Sedillo initiated conversation during which Cortez explained to Sedillo that self-defense is not a crime. Upon arrival at Parker Center, Detective Falvo and Officer Cortez decided to place Sedillo in a jail cell on the fourth floor that could be monitored to record conversations. While Detective Falvo made the arrangements, Cortez began the booking process. Sedillo told Cortez, “It didn’t happen like they said it happened, referring to Detective Falvo and Detective Paglialonga.” Cortez reminded Sedillo he had asked to speak with a lawyer and asked if he still wanted to talk. Sedillo said he did and then said there were three guys who jumped out of a vehicle and assaulted a friend of his, and he eventually was confronted by those three guys in a white Blazer and he thought they were going to attack him. Sedillo did not want to get shot so he fired at them. At that point, Cortez realized Sedillo was talking about the October 31 incident and not the September 23 incident. Castro went to the fourth floor and told Detective Falvo that Sedillo had just admitted involvement in the October 31 incident. They found a room in which they could video tape an interview. The videotape of the interview was played for the jury.
In the Parker Center interview, Sedillo stated that on Halloween, after kicking it with his brother and his brother’s friends at “one of the homie’s house[s], ” he “ran into” a friend who was “running scared....” The friend tried to wave Sedillo and his companions down but they drove past him. The friend then chirped an individual in the car and Sedillo went around the block to pick him up. The individual said he had been at a party 10 minutes earlier where three males “pulled up, ” “jumped out, ” and started yelling, “Fuck Wilmington.” The individual said a “little regular skater guy... got cracked with a bat.” Sedillo’s friend ran from the scene. Later that evening, Sedillo was driving his Nissan Maxima on Eubank Avenue and “those guys... came up [Sandison Street].” “[T]hey seen me and... kept going behind me.” The individuals were in a white Blazer. There were three males in the car, two in the front and one in the back. After Sedillo made a right on Pacific Coast Highway, the Blazer drove next to Sedillo’s vehicle. The driver looked at Sedillo “funny” and tried to swerve into his car. Sedillo accelerated but the vehicle again pulled up next to Sedillo, causing Sedillo to believe the driver of the Blazer “had something.” Sedillo stated the driver “was acting like he was just going to do something, getting toward his window, coming like out... his window, almost.” Sedillo thought the driver was “going to take [him] out.” “That’s why I reacted and I just laid off a couple.” Sedillo thought he could have been killed and shot at the Blazer with a.38 he carried for protection. Sedillo indicated the passenger also looked at him and he saw the driver’s head turn toward him from behind the tinted window. Sedillo saw the driver “coming out... the window either with a bat, trying to make it look like a gun, or a regular gun.” Sedillo tried to get away but they caught up to him “[s]o I end up popping a couple.” After Sedillo fired the shots, the Blazer slowed down. Sedillo drove around looking for his “homie” to see if he was all right, but was unable to find him and drove home. Sedillo got rid of the gun after he read about the shooting in the newspaper.
When Sedillo recounted the incident, he stated his friend cautioned Sedillo to be careful “because these fools might be around.” Sedillo said he was wearing the mask because it was Halloween and he was going to go to his girlfriend’s house. He left it on after he dropped his friends off because he was “in a rush.” Sedillo wore the mask the entire evening.
When the detectives asked Sedillo whether the September 23 murder also was a case of self-defense, Sedillo said he was not involved in that incident and suggested he must resemble the shooter because a witness had identified him. Sedillo stated he was not around the scene of that shooting but he told the truth about the October 31 incident because he “knew for a fact that” he was responsible for that shooting. When the detectives asked whether the same gun could have been used in both shootings Sedillo responded, “No. For sure it wasn’t.”
When the detectives advised Sedillo there was a female in the backseat of the Blazer, Sedillo responded, “Oh. Wow.” “It was a girl?... No. It must have not been the same Blazer because for sure I saw three guys. For sure.”
After Sedillo was placed in a cell at Parker Center, he made a telephone call which was recorded. Apparently speaking to his brother, Sedillo acknowledged the police might be recording the conversation, then indicated that he needed Carlos and Omar to be witnesses and that he was claiming self-defense “on the other one.” “I need him to bring his homies sayin’ he got busted in his face and shit like that.” Sedillo advised his brother to call Carlos and “tell them I need both of them to go in and tell them the exact same thing that happened.... We were on our way home.... We... seen homie up running... down fucking Avalon.... I went back... and I seen them... and I told them I’ll be back, I’m going to drop you 2 fools off.... And I was coming back down Eubank and that’s when those fools tripped on me. Alright? They tried to hit my car.” “Tell that fool... I need that fool to be my witness.” Sedillo then asked to speak to his father. Thereafter, Sedillo stated, “Yup, hey, they got those 2 on me. 2 murders. They... booked me right now just for 1 of them. I told them the other one I didn’t do....”
d. Testimony of the gang expert.
Los Angeles Police Detective Mark Maldonado testified as a gang expert. He indicated there are two major gangs in the City of Wilmington, the East Side Wilmas and the West Side Wilmas, which have approximately 550 and 530 members, respectively. The primary activity of each gang includes homicide, attempted homicide, robbery, assault with deadly weapons and narcotics sales. The two gangs started as one but became rivals in the late 1970s. In 2005, state prisoners called a truce and attempted to reunify the gang. Hostilities between the gangs resumed on September 18, 2006, when Samuel Saucedo, a member of East Side Wilmas, was killed just inside East Side Wilmas territory. Yvette Vasquez, also known as Chica, was in a relationship with Saucedo at the time of his murder. Yvette Vasquez and Sedillo are cousins. The Vasquez family is a known East Side Wilmas family.
In Maldonaldo’s opinion, Sedillo was a member of the East Side Wilmas gang in September and October of 2006. Maldonaldo bases this opinion on a police report of an incident that occurred on May 13, 2005, in which Sedillo was arrested for a gang fight in which he and three other East Side Wilmas gang members jumped another individual at Banning High School. In that incident, the victim was asked, “Where are you from?” Also, East Side Wilmas’ gang graffiti was recovered from Sedillo’s bedroom and a photograph found on the mantle in the living room of Sedillo’s home depicts a group of nine East Side Wilmas gang members including Yvette Vasquez’s father. A second photograph depicts a large group of East Side Wilmas gang members, including Yvette Vasquez’s father, making gang signs in Banning Park.
The prosecutor posed a hypothetical question to Maldonaldo based on the facts of the shooting of September 23, 2006, specifically, the shooting of a person associated with the West Side Wilmas, five days after Samuel Saucedo was shot and killed, by a suspect who attended Saucedo’s funeral carwash several hours earlier, from a Honda sedan by firing several shots out the window of that vehicle with a semiautomatic handgun. The prosecutor asked Maldonaldo to assume a minimum of seven shots were fired, that the shooter’s vehicle was seen leaving at a high rate of speed, and that the victim was with another West Side Wilmas gang member who later plead guilty to charges arising from the murder of Saucedo. Maldonaldo testified that, in his opinion, the shooting would have been committed for the benefit of, in furtherance of and in association with, the East Side Wilmas.
In a hypothetical based on the facts of the shooting of October 31, 2006, the prosecutor asked Maldonaldo to assume three young people left a Halloween party in a white Blazer and were traveling west on Pacific Coast Highway when another vehicle driven by an East Side Wilmas gang member wearing a mask approached them at a high rate of speed from the left side, pointed a medium caliber weapon at the Blazer and shot several times striking the driver three times and striking the front passenger once through the head and then drove off. The prosecutor asked Maldonaldo to further assume the shooter said that earlier some of his “homies” were jumped by three male Hispanic gang members in a white Blazer and that he saw a similar vehicle containing three male Hispanic gang members approach him driving erratically and threatening him, whereupon he reached under his seat, obtained a weapon, shot a couple of times and then sped away. Maldonaldo opined the shooting had been committed for the benefit of, in furtherance of and in association with the East Side Wilmas.
On cross-examination, Maldonaldo conceded Sedillo was not a self-admitted member of the gang and he has no gang tattoos. Assuming Sedillo is convicted of the current charges, Maldonaldo would characterize Sedillo as an “up and coming” member of the gang.
On redirect examination, Maldonaldo testified the Vasquez and Sedillo families are well respected in the East Side Wilmas community.
2. The defense case.
a. Defense gang expert.
Richard Valdemar, a retired Los Angeles County Sheriff, testified that, in his opinion, Sedillo was an associate of the East Side Wilmas gang. Valdemar could not say Sedillo was a member of the gang because there was no evidence he had been initiated into the gang or that he had participated in any serious crimes other than the charged offenses. Valdemar agreed the shooting of September 23 was gang related. Although the shooting of October 31 bore some indicia of a gang shooting, primarily, the fact it was a car versus car incident, in Valdemar’s opinion, it was not committed for the benefit of a gang. Valdemar indicated a lot of random violence occurs during the Halloween season, much of which is not gang related.
Valdemar testified the October 31 shooting was not the kind of shooting that would be boasted about by gang members and it would not be taken well by the prison gang because it involved non-gang members and a female. Shooting such individuals goes against the edicts of the Mexican Mafia.
b. Testimony of the detectives who interviewed Sedillo.
Detective Paglialonga testified about the Harbor Station interview and an audiotape recording of the interview was played in court.
Detective Falvo testified about the interview of Sedillo and the fact he was shown a false photographic lineup in which Sedillo’s photograph was circled. Falvo also told Sedillo a witness had identified the mask as the one they saw that night.
c. Sedillo’s testimony.
Sedillo testified in his own behalf. He admitted the majority of his family “is from the East Side” but denied he had ever been initiated into the gang and claimed he associated with “people from the West side.” On November 21, 2006, the police arrived at his home at six in the morning. Sedillo only had been asleep for about four hours. Sedillo and his brother, Raymundo, were taken in for questioning. During the Harbor Station interview, Detective Paglialonga told him someone had identified him. The detectives later brought in the mask and Sedillo admitted his mother had purchased it for him for Halloween. When detectives told him the mask had been identified as the one worn by a shooter, Sedillo became concerned because the mask was found in his brother’s room.
After the interview at Harbor Station, Sedillo was placed in a room with his brother. They knew the room was bugged and they whispered to each other. Raymundo said the police told him they found a mask and bullets in his room and they were going to charge him with murder. Sedillo told Raymundo, “Don’t worry, I’ll tell them that it was my mask and I was using it....”
During the drive to Parker Center, Falvo told Sedillo, “If you think that we can’t get you for these murders, you’re wrong. We got too much evidence and we got witnesses pointing you out. And not only that, we are gonna place one of the murders on your brother because we found evidence in his room.” Falvo also stated self-defense was not a crime so, if Sedillo acted in self-defense, his best bet was to plead self-defense rather than face a murder charge. Detective Cortez also spoke at length about self-defense. The detectives repeatedly said they were going to charge his brother with murder because they found bullets and the mask in his room and, if the mask belonged to Sedillo and he acted in self-defense, he was better off saying it was self-defense rather than letting his brother be charged with the crime.
Sedillo testified he falsely admitted in the Parker Center interview that he committed the October 31 shooting. He claimed he knew details of the shooting based on accounts in the newspaper and talk on the street. Sedillo told the detectives he used a.38 caliber handgun in the October 31 shooting but he made that up. He learned there had been three people in a Blazer and that the driver’s side passenger door window of the Blazer was shattered by gunshots from rumors on the street.
Sedillo denied he had anything to do with the either shooting. After the car wash, he picked up his girlfriend and went home.
Regarding the school incident on May 13, 2005, Sedillo testified he was not aware the other individuals involved in the fight were members of the East Side Wilmas gang. Sedillo denied he attacked anyone and indicated that, as a result of that incident, he was convicted only of disturbing the peace.
Sedillo admitted he attended other activities after the carwash on September 23, 2006, and that he was in a car driven by Jose Muratalla’s girlfriend. However, Sedillo denied he was in the car after 6:00 p.m.
While in his cell after the Parker Center interview, Sedillo was recorded stating, “They got a snitch, I seen him in the car.” “So I am fucked. That one I am going to fight. I am going to fight that shit until the snitch comes, hear me.”
Regarding the recorded telephone conversation after the Parker Center interview, Sedillo testified he may have been getting his brother to get two friends to vouch for the false statement he had made.
d. Testimony of Sedillo’s girlfriend.
Sedillo’s girlfriend testified Sedillo picked her up on October 31, 2006, at her mother’s home at 9:00 or 10:00 p.m., and they went to his house. She did not see a mask in the car and Sedillo did not appear to be upset or agitated.
3. Verdicts.
The jury convicted Sedillo as charged.
CONTENTIONS
Sedillo contends the trial court erroneously refused to sever the trial of the September 23 incident from the trial of the October 31 incident, the evidence was insufficient to sustain the conviction of first degree murder or the firearm and special circumstance allegations associated with the incident of September 23, 2006, defense counsel rendered ineffective assistance in failing to present evidence promised during opening statement, the trial court erroneously failed to instruct the jury on self-defense and imperfect self-defense with respect to the incident of October 31, 2006, and the evidence was insufficient to support the criminal street gang enhancement associated with the incident of October 31, 2006. Sedillo also asks this court to review the sealed transcript of the in camera hearing on his Pitchess motion.
DISCUSSION
1. No abuse of discretion in the denial of the motion to sever the trial of the September 23 incident from the trial of the October 31 incident.
a. Background.
In a pretrial motion for severance, Sedillo argued evidence of the two incidents would not be cross admissible at separate trials; the crimes were unusually likely to inflame the jury; a weak case had been joined with a stronger case; and, if Sedillo elected to testify with respect to one incident but not the other, the jury would be left with an unfavorable impression.
The trial court denied the motion finding evidence of the two incidents would be cross admissible to show motive and intent in that the prosecution had alleged a criminal street gang enhancement as to each incident; joinder was not likely to inflame the jury because the charged offenses were of the same class and involved the same enhancement allegations; and, assuming the evidence with respect to the incident of September 23, 2006, was weaker than the evidence relied upon to establish guilt in the incident of October 31, 2006, this factor alone did not justify severance.
b. Sedillo’s arguments on appeal.
Sedillo contends the refusal to grant the motion resulted in the denial of due process. (Williams v. Superior Court (1984) 36 Cal.3d 441, 452 superseded by statute on other grounds as noted in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19.) He argues evidence of the two incidents was not cross admissible to prove any material fact because the shootings took place at different locations and at different times. Also, the trial court’s finding the evidence would be cross admissible to prove the motive and intent elements of the criminal street gang enhancements was erroneous because the evidence did not suggest the October 31 incident was gang related. Further, any beneficial value of joining the charges was substantially outweighed by the prejudice to Sedillo. Finally, Sedillo asserts the People either had joined two weak cases or a weak case and a stronger case, thereby raising the possibility the jury would aggregate the evidence to convict on both cases. (Williams v. Superior Court, supra, 36 Cal.3d at pp. 453-454.) Sedillo claims the evidence of his involvement in the September 23 shooting was weak and, although the evidence of his involvement in the October 31 shooting was somewhat stronger, it nonetheless was fairly weak.
Sedillo concludes the extremely high potential for prejudice stemming from the improper joinder of the cases requires reversal of the convictions.
c. General principles.
An accusatory pleading may charge two or more different offenses if the offenses are “connected together in their commission” or are “of the same class.” (§ 954.) However, even if joinder is proper under section 954, “in the interests of justice and for good cause shown, ” a trial court “may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (§ 954.)
The strong preference is for joinder of charged offenses. (People v. Soper (2009) 45 Cal.4th 759, 772; Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220.) The trial court must balance the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. (People v. Soper, at pp. 772-773.) A joint trial “ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials. [Citations]” (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) “A unitary trial requires a single courtroom, judge, and court attaches. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced.... In addition, the public is served by [the judicial efficiency realized in the prompt] disposition of criminal charges both in trial and through the appellate process.” (People v. Bean (1988) 46 Cal.3d 919, 939-940 ; see also, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 408-409; People v. Mason (1991) 52 Cal.3d 909, 935.)
Because the prosecution has the right to try properly joined charges together, the burden is on the defendant to “clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (People v. Soper, supra, 45 Cal.4th at p. 773.) And, because of the public policy factors favoring joinder, a party seeking severance must make a stronger showing of prejudice than would be necessary to exclude other crimes evidence in a separate trial. (Id. at pp. 772-773.)
On appeal, to demonstrate error in the denial of severance, the defendant must make a clear showing of prejudice. (People v. Manriquez, supra, 37 Cal.4th at p. 574.) A trial court’s denial of a request to sever properly joined charges amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason. (Ibid.) We consider the record before the trial court when it made its ruling. (People v. Soper, supra, 45 Cal.4th at p. 774.) However, even where the trial court’s ruling was correct when made, we must reverse if the defendant shows joinder actually resulted in gross unfairness, amounting to a denial of due process. (Id. at p. 783; People v. Arias (1996) 13 Cal.4th 92, 127.)
Cross-admissiblity of evidence generally dispels any inference of prejudice from joinder. (People v. Soper, supra, 45 Cal.4th at pp. 774-775.) However, joinder is permissible even when cross-admissibility is not present. (Id. at p. 775; § 954.1.) In determining potential prejudice from the joint trial of non-cross-admissible charges, we consider (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; and, (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. (People v. Soper, supra, 45 Cal.4th at p. 775.)
Section 954.1 provides, “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
d. Application.
Here, the two incidents gave rise to charges of the same class. Thus, the threshold for joinder was met. (§ 954.)
Further, based on the record before the trial court at the time of its ruling, the trial court properly could conclude that evidence of both incidents would be admissible at separate trials to prove the criminal street gang enhancement allegations. The People’s gang expert testified Sedillo’s criminal record prior to September of 2006 consisted of a school fight incident and a charge of possession of marijuana. The expert conceded Sedillo had never admitted gang affiliation, had no gang related tattoos and did not have a gang moniker. The expert based his opinion Sedillo was a gang member on Sedillo’s association with gang members, his possession of gang writing and ammunition, and Sedillo’s commission of the charged offenses which demonstrated Sedillo was an “up and coming” member of the gang. Thus, evidence of the charged incidents was critical to proof of the criminal street gang enhancements. Consequently, in order to prove the criminal street gang enhancement allegation at a separate trial, evidence of the other incident would have been admissible. Given this cross-admissibility of evidence, the inference of prejudice is dispelled. (People v. Soper, supra, 45 Cal.4th at pp. 774-775.)
Moreover, even assuming the two incidents were not cross-admissible, consideration of the factors enumerated above consideration reveals the unitary trial did not cause Sedillo undue prejudice.
With respect to the first factor, the homicides at issue were similar in nature and equally egregious. In both incidents, Sedillo was alleged to have been involved in an unprovoked shooting which resulted in a homicide. Thus, the trial court reasonably could conclude the incidents were equally inflammatory. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1245; People v. Mayfield (19978) 14 Cal.4th 668, 721.) Therefore, neither incident, when compared to the other, was likely to unduly inflame a jury against Sedillo.
Nor is this a situation in which either charge was a capital offense, or in which the prosecutor sought joinder in order to convert the matter into a capital case. (Compare Williams v. Superior Court, supra, 36 Cal.3d at p. 454, [“joinder itself [gave] rise to the special circumstances allegation of multiple murder”].) Although the information alleged two special circumstances, one of which was multiple murder, the People did not seek capital punishment. Thus, the joinder of the charges did not result in a capital case.
With respect to Sedillo’s argument the prosecution joined a strong case with a weak case or combined two weak cases, the trial court reasonably could conclude the evidence that demonstrated Sedillo’s guilt in each incident was substantially similar in weight. In the September 23 incident, Sanchez identified Sedillo as the passenger in a Honda driving toward the scene of the shooting, 20 seconds later the fatal shots were fired, a resident heard the shots and saw the Honda drive from the scene, and casings found at the scene indicated the passenger of the Honda had been the shooter. In the October 31 incident, Sedillo admitted he committed the shooting in a videotaped interview. Any difference in the strength of the evidence of the two crimes was insubstantial. (People v. Carter (2005) 36 Cal.4th 1114, 1155; People v. Mayfield (1997) 14 Cal.4th 668, 721.)
In any event, “[a] mere imbalance in the evidence... will not indicate a risk of prejudicial ‘spillover effect, ’ militating against the benefits of joinder and warranting severance of properly joined charges. [Citation]” (People v. Soper, supra, 45 Cal.4th at p. 781.) Citing People v. Ruiz (1988) 44 Cal.3d 589, 607, Soper noted that severance of two properly joined murder charges is not required “even though the evidence underlying one charge was ‘relatively weak’ and was made ‘much stronger’ by the evidence underlying the second charge.” (People v. Soper, at p. 781.)
“Furthermore, the benefits of joinder are not outweighed – and severance is not required – merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried.” (People v. Soper, supra, 45 Cal.4th at p. 781.)
Finally, the denial of severance did not result in actual unfairness so great that it denied Sedillo due process or deprived him of his right to a fair trial. (People v. Soper, supra, 45 Cal.4th at p. 783; People v. Cook (2006) 39 Cal.4th 566, 583.) “[T]he consolidated offenses were factually separable. Thus, there was a minimal risk of confusing the jury or of having the jury consider the commission of one of the joined crimes as evidence of defendant’s commission of another of the joined crimes.” (People v. Mendoza (2000) 24 Cal.4th 130, 163; People v. Soper, at p. 784.) The prosecution did not suggest that evidence of one incident could be used to prove or strengthen the other incident. (Cf. People v. Grant (2003) 113 Cal.App.4th 579, 589-591.)
In sum, the evidence underlying each incident was relatively straightforward and distinct. Further, the evidence related to each incident independently was sufficient to support Sedillo’s conviction of the crimes charged. There was no great disparity in the nature of the two charges and the facts of each crime, compared to the other, were not likely to inflame the jury unduly. The strength of the evidence supporting each offense was relatively similar. We therefore conclude Sedillo has failed to demonstrate either that his trial was grossly unfair or the clear showing of prejudice required to demonstrate error in a trial court’s denial of a motion to sever properly joined charges. (People v. Soper, supra, 45 Cal.4th at p. 784.)
2. Sufficiency of the evidence with respect to the incident of September 23, 2006.
Sedillo contends the evidence was insufficient to sustain the conviction of first degree murder committed on September 23, 2006, or the firearm and special circumstance allegations associated with that offense. Sedillo claims the evidence failed to show that he, and not someone else, fired the shots that killed Lopez. Sedillo argues that where the evidence shows only a 50 percent probability the defendant’s act caused harm, the People have not carried their burden of proof beyond a reasonable doubt. (People v. Allen (1985) 165 Cal.App.3d 616, 626-627.)
Additionally, with respect to the special circumstance allegation that he personally discharged a firearm from a motor vehicle at a person outside the vehicle (§ 190.2, subd. (a)(21)), Sedillo claims there was no evidence the shooter did not alight from the Honda before shooting. Because no one witnessed the shooting, Sedillo also suggests it is possible an individual unrelated to the Honda killed Lopez. Sedillo concludes the evidence is insufficient to support the conviction of first degree murder committed on September 23, 2006, or the special circumstance and personal use of a firearm allegations connected to it.
When assessing a claim of insufficiency of evidence, we review “the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Applying this well settled authority to the facts of this case, it is apparent that Sedillo’s claim lacks merit. Sanchez saw Sedillo in the passenger seat of a Honda headed toward the crime scene. Twenty seconds later, the shots were fired. A resident heard the shots, looked out and saw a Honda speeding from the scene and no other cars moving in the area. Finally, expended shell casings found at the scene were consistent with having been fired from the passenger side of a passing vehicle.
In Allen, the case cited by Sedillo, a single gun was used in a residential shooting and the evidence failed to establish which of two defendants fired the weapon. Allen held it was “purely a matter of conjecture” as to whether the appellant, as opposed to the codefendant, had used the gun. (People v. Allen, supra, 165 Cal.App.3d at p. 626.) Thus, the prosecution failed to establish the personal use of a firearm by either defendant beyond a reasonable doubt. Here, the evidence indicated that Sedillo, as opposed to anyone else, fired the fatal shots and that he personally discharged a firearm from a motor vehicle at a person outside the vehicle. (§ 190.2, subd. (a)(21).)
We therefore reject Sedillo’s claim of insufficiency of the evidence to support the murder conviction or the true findings on the firearm and special circumstance allegations associated with the incident of September 23, 2006.
3. Sedillo fails to demonstrate ineffective assistance of counsel.
In defense counsel’s opening statement, with respect to the murder of Lopez on September 23, 2006, defense counsel told the jury it would hear evidence that indicated “when this homicide happened... [Sedillo] was... not in Wilmington.” Defense counsel apparently based this representation on defense counsel’s belief a representative of the phone company would testify, based on Sedillo’s cell phone records, Sedillo was not in Wilmington at the time of the September 23 shooting. At a pretrial hearing, defense counsel stated that, according to a defense investigator, Sedillo’s cell phone records indicated that “13 minutes before the Lopez killing, Mr. Sedillo was near the Cerritos channel, near the Orange County border.”
However, during the trial, defense counsel indicated the phone company representative was unable to provide “a definitive answer” and would not be called as a witness. Defense counsel did not introduce evidence that indicated Sedillo was in another city at the time of the September 23 shooting. Rather, Sedillo testified he attended the carwash and other events in Wilmington on September 23 and later picked up his girlfriend in Wilmington.
Sedillo contends defense counsel’s failure to present the promised evidence constituted ineffective assistance of counsel. (People v. Corona (1978) 80 Cal.App.3d 684, 726; McAleese v. Mazurkiewicz (3rd Cir. 1993) 1 F.3d 159, 166 [failure to produce evidence promised during opening statement constitutes ineffective assistance]; Harris v. Reed (7th Cir. 1990) 894 F.2d 871, 879.) Sedillo asserts defense counsel’s failure “opened the gate to legitimate, devastating comments on the part of the prosecution.” (People v. Corona, supra, at p. 725.)
Sedillo asserts the prosecutor’s use of defense counsel’s failure to produce the promised evidence “dealt a devastating blow to appellant’s cause.” (People v. Corona, supra, 80 Cal.ApP.3d at p. 726.) Sedillo notes that, on cross-examination, the prosecutor asked if Sedillo were in another city on September 23, and whether Sedillo had heard defense counsel’s opening statement in which defense counsel stated Sedillo was “in another city?” Also, in argument to the jury, the prosecutor referred to defense counsel’s opening statement and stated, “First, the defense was from the opening, well, he wasn’t in the same city on the September 23 shooting. Well, that... theory went out the door when the defendant himself said, after the carwash, he... was somewhere in Wilmington.”
Sedillo claims defense counsel had no valid tactical reason for guaranteeing the jury such important evidence and argues defense counsel should have insured the telephone company representative would provide the necessary testimony before promising the evidence in opening statement. Sedillo concludes defense counsel’s deficient performance undermines confidence in the conviction on count 1 and requires reversal.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674].) “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 93.)
Making promises about defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se. (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) “Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 955.)
Regarding Sedillo’s claim the prosecutor made prejudicial use of defense counsel’s failure on cross-examination and in argument, the record reveals the prosecutor asked if Sedillo had been in another city on September 23. After the trial court overruled defense counsel’s objection, the prosecutor did not elicit an answer from Sedillo but asked whether Sedillo had heard defense counsel’s opening statement in which defense counsel stated Sedillo was “in another city?” The trial court sustained defense counsel’s relevance objection to that question. Given that Sedillo did not have occasion to respond to the prosecutor’s inquiries, these questions cannot be seen as unduly prejudicial.
In argument to the jury, the prosecutor mentioned the failure to produce the evidence only as one of the many changes in Sedillo’s defense to the charges, noting Sedillo’s statements regarding the charged incidents changed “day to day.” In this context, the prosecutor observed that, in the opening statement, Sedillo’s defense was that he was not in the city on September 23. “Well, that... theory went out the door when the defendant himself said, after the car wash, he... was somewhere in Wilmington.” Regarding the October 31 incident, Sedillo first claimed he was protecting his brother. However, the story “quickly shifted to... another version....” In court, “the versions shifted to he just made it up” and, on the last day of trial, Sedillo presented an alibi defense through his girlfriend.
The failure to present the testimony of the telephone company representative was not a substantial factor in the prosecutor’s ability to make this argument. Further, this aspect of the prosecutor’s argument was not relied upon to convict Sedillo. Rather, it was tangential to the evidence that established Sedillo’s guilt, namely, the eyewitness identification of Sedillo as the passenger in the Honda and the incriminating statement regarding the incident of October 31, 2006.
Thus, even if defense counsel’s failure to present the evidence described in the opening statement had no tactical justification and fell below the normal range of professional competence, we do not find it reasonably likely the jury would have reached a different verdict in the absence of the error. (People v. Stanley, supra, 39 Cal.4th at p. 955.)
People v. Corona, cited by Sedillo in support of his contention, is distinguishable in several respects. Defense counsel in Corona promised to introduce alibi testimony, psychiatric evidence, character evidence and other rebuttal testimony. (People v. Corona, supra, 80 Cal.App.3d at p. 726.) Defense counsel subsequently “decided to forego all the defenses promised and submitted the matter upon the evidence introduced by the prosecution, [and, in so doing] opened the gate to legitimate, devastating comments on the part of the prosecution.” (Id. at p. 725.) In this case, defense counsel made a single representation, i.e., that the evidence would show Sedillo was not at the scene of the Lopez shooting. Further, unlike Corona, Sedillo testified he was not at the scene of the Lopez shooting. Thus, there was not a total failure to produce the promised evidence.
Corona is also distinguishable in that defense counsel in that case committed an “outrageous abrogation” of the obligation to defend which “rendered the trial a farce and mockery.” (People v. Corona, supra, 80 Cal.App.3dat pp. 703, 727.) Specifically, defense counsel created a conflict of interest with the defendant by entering into a fee agreement which granted defense counsel exclusive literary rights to the defendant’s life story. Thus, contrary to the interests of the defendant, defense counsel made the trial “lengthy and sensational... at any price....” (Id. at p. 704.) Given these highly unique elements, Corona does not assist Sedillo’s argument.
We therefore conclude any ineffective assistance of counsel was harmless on the facts presented.
4. The trial court committed no reversible instructional error.
a. Background.
During the jury instruction conference, the trial court indicated that, because Sedillo testified he was not present at the scene of the shooting, it would not instruct on voluntary manslaughter based on the actual but unreasonable belief in the need to defend. Defense counsel suggested the jury might reject Sedillo’s testimony that he did not commit the October 31 offenses but, based on the Parker Center statement, find he was involved in a road rage or heat of passion situation, in which case the instruction would be applicable. Defense counsel noted Sedillo stated: “I shot to defend myself and get away.” If the jury did not completely disbelieve the statement, the People had to prove beyond a reasonable doubt the falsity of Sedillo’s claim of imperfect self defense. Therefore, the jury should be instructed on voluntary manslaughter based on the honest but unreasonable belief in the need to defend. Defense counsel suggested Sedillo’s statement was consistent with the testimony of Villegas, the driver of the white Blazer, who testified he looked over at the car next to him.
The trial court ruled voluntary manslaughter was inconsistent with Sedillo’s testimony and the totality of the circumstances, including the testimony of Villegas and Jessica Romero. Therefore, there was insubstantial evidence to support the instruction.
b. Sedillo’s appellate contention.
On appeal, Sedillo contends he not only was entitled to instruction on voluntary manslaughter based on imperfect self-defense, but also that he was entitled to instruction on perfect self-defense. Sedillo argues the trial court had a sua sponte obligation to instruct on each of these theories. He asserts the trial court should have considered the possibility the jury would credit some portions of the prosecutor’s case and some portions of the defense case. (People v. Barton (1995) 12 Cal.4th 186, 202; People v. Villanueva (2008) 169 Cal.App.4th 41, 52-53.)
Sedillo argues the only evidence that connected him to the October 31 shooting was his own statement. However, that statement included evidence which, if believed by the jury, warranted a finding he honestly and reasonably believed he needed to use deadly force to prevent imminent death or great bodily injury. The jury also could have found Sedillo’s belief in the need to defend was unreasonable, in which case his offenses would have been voluntary manslaughter and attempted voluntary manslaughter. (People v. De Leon (1992) 10 Cal.App.4th 815, 824 [where substantial evidence supports instruction on self-defense, it follows that instruction on imperfect self-defense is also appropriate].)
Sedillo asserts the failure to instruct on self-defense and imperfect self-defense violated his constitutional right to due process and a jury determination of the elements of the charged offenses. Thus, both errors should be tested under the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]), which requires reversal unless the People can prove the error was harmless beyond a reasonable doubt.
Alternatively, Sedillo argues the error requires reversal under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836) because his statement gave rise to a right to instructions on self-defense and imperfect self-defense and it is reasonably probable a properly instructed jury would have acquitted or convicted only of the lesser included offenses. Sedillo notes the jury asked to see the videotape of the Parker Center statement during deliberations, thereby indicating the importance of Sedillo’s explanation of the shooting to the jury’s resolution of the case. In light of these circumstances, the failure to instruct on self-defense and the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter must be seen as prejudicial. Sedillo concludes the convictions in counts 2, 3 and 4 must be reversed.
c. No sua sponte obligation to instruct on self-defense.
Self-defense is perfect or imperfect. Perfect self-defense arises when the defendant actually and reasonably believes in the need to defend against imminent bodily injury or death. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) “ ‘The threat of bodily injury must be imminent [citation], and ‘... any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) Although the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant’s position. The jury must consider all the facts and circumstances it might “ ‘expect[] to operate on [the defendant’s] mind....’ [Citation.]” (People v. Humphrey, supra, at p. 1083.) “A killing in self-defense is lawful.” (People v. Anderson (2002) 28 Cal.4th 767, 782.)
A trial court’s duty to instruct sua sponte on a particular defense is “limited, arising ‘only if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Barton, supra, 12 Cal.4th at p. 195; People v. Breverman (1998) 19 Cal.4th 142, 157.)
Here, Sedillo testified he was not present at the scene of the October 31 shooting. Thus, self-defense was inconsistent with Sedillo’s testimony. In apparent recognition of this point, at trial, Sedillo did not request instruction on self-defense. Given that self-defense was inconsistent with Sedillo’s testimony, the trial court had no sua sponte obligation to instruct thereon.
In the reply brief, Sedillo asserts that, even though self-defense was inconsistent with the defense theory of the case, the trial court had an obligation to inquire whether defense counsel wanted instruction on self-defense because there was substantial evidence to support the instruction. (People v. Breverman, supra, 19 Cal.4th at p. 157; People v. Elize (1999) 71 Cal.App.4th 605, 615.)
However, the evidence of perfect self-defense was not sufficient to warrant instruction on that theory. In the Parker Center statement, Sedillo told the detectives a friend waived him down and said “three guys” in a White Blazer had assaulted him and were chasing him. Thereafter, a white Blazer pulled up next Sedillo and the driver of the Blazer looked at Sedillo “funny” and tried to swerve into him. Sedillo stated he thought the driver “ha[d] something, he’s going to take me out. [¶] That’s why I reacted and I just laid off a couple.” Sedillo saw the driver “coming out... the window either with a bat, trying to make it look like a gun, or a regular gun.” Sedillo claimed he thought he was going to be shot and, although he tried to pull away from the Blazer, it was “still on [him.] [¶] So I ended up popping a couple.”
No reasonable juror could conclude, based on this statement, that Sedillo’s use of deadly force was reasonable under the circumstances. Although Sedillo claimed he feared being shot, the factual underpinning of this belief was Sedillo’s assertion the driver had either a bat or a “regular gun.” Sedillo did not state he actually saw a gun. Thus, viewed in the light most favorable to the defense, Sedillo shot at the Blazer because he thought there was a possibility the driver had a gun. Because Sedillo’s reaction to the assertedly perceived threat, producing a handgun and shooting at the occupants of the white Blazer, was unreasonable, evidence of perfect self-defense was insubstantial. Indeed, defense counsel conceded as much by requesting instruction only on imperfect self-defense.
Because there was insubstantial evidence that Sedillo killed in the reasonable belief in the need to defend against imminent great bodily injury, the trial court had no sua sponte obligation to instruct on perfect self-defense.
d. No reversible error in the refusal to instruct on imperfect self-defense.
Sedillo contends the Parker Center statement supported instruction on imperfect self-defense. Sedillo notes evidence that conflicts with the defendant’s testimony may be sufficient to warrant instruction on lesser included offenses. (People v. Barton, supra, 12 Cal.4th at pp. 201-203; People v. Villanueva, supra, 169 Cal.App.4th at pp. 52-53.) Sedillo argues the People relied on this statement to convict him of murder and two counts of attempted murder and there was no evidence of a motive for the shooting other than the one stated by Sedillo in the statement. According to Sedillo, without instruction on imperfect self-defense, the prosecution had no burden to disprove Sedillo’s claim his actions amounted to an offense less than murder. Thus, the failure to instruct on voluntary manslaughter was prejudicial and requires reversal of the convictions in counts 2, 3 and 4.
A defendant in a criminal case has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) Generally, even in the absence of a request, a trial court in a criminal case has a duty to instruct on general principles of law applicable to the case, including lesser included offenses supported by the evidence. (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Valdez (2004) 32 Cal.4th 73, 115; People v. Heard (2003) 31 Cal.4th 946, 980-981; People v. Breverman, supra, 19 Cal.4th at pp. 154, 162.)
A defendant lacks malice and is guilty of voluntary manslaughter when the defendant kills in imperfect self-defense. (People v. Rios (2000) 23 Cal.4th 450, 460-461.) Voluntary manslaughter is a lesser included offense of first degree murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) As a result, a trial court is required to instruct on voluntary manslaughter if there is substantial evidence to support it. (See People v. Breverman, 19 Cal.4th at p. 162.) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (Id. at p. 177.) We independently review the question of whether the trial court erred by failing to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596; People v. Waidla (2000) 22 Cal.4th 690, 733.)
Even if we were to assume, without deciding, the trial court breached a sua sponte obligation to instruct on voluntary manslaughter, the judgment “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (People v. Breverman, supra, 19 Cal.4th at p. 165, citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
We reject Sedillo’s claim the error was one of federal constitutional magnitude, requiring application of the standard announced in Chapman v. California (1967) 386 U.S. 18. It is settled that “in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses... supported by the evidence must be reviewed for prejudice exclusively under Watson.” (People v. Breverman, supra, 19 Cal.4th at p. 178; accord People v. Moye, supra, 47 Cal.4th at pp.555-556.)
In deciding whether evidence is substantial enough to require instruction on a lesser included offense, we examine only its bare sufficiency, not its weight. (People v. Moye (2009) 47 Cal.4th 537, 556.) “ ‘Appellate review under Watson, on the other hand, takes an entirely different view of the evidence. Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result....’ ” (Id. at p. 556.)
Our examination of the record satisfies us there is no reasonable probability that, had instruction on voluntary manslaughter been given, Sedillo would have obtained a more favorable result. (People v. Moye, supra, 47 Cal.4th at pp. 557-558; People v. Prince (2007) 40 Cal.4th 1179, 1267-1268; People v. Breverman, supra, 19 Cal.4th at p. 165.)
Clearly, the detectives tricked Sedillo into claiming self-defense by suggesting he could thereby admit the shooting and avoid criminal consequences. In response to that suggestion, Sedillo told the detectives he shot at the Blazer but did so only after he formed the belief the occupants were rival gang members who had attacked one of his associates earlier that evening. Sedillo claimed the Blazer, which he believed contained three males, swerved at him and its driver pointed a bat or a gun at him. In fact, the occupants included a female and none was a gang member. Realizing the jury was unlikely to believe these individuals would attack him for no reason, Sedillo completely abandoned the story he told the police and testified the entire statement was false and that he made the statement only to protect his brother. It is not reasonably probable the jury saw this statement as anything other than an attempt to admit the shooting but avoid criminal responsibility for its consequences. Even had the trial court instructed on imperfect self-defense, the jury would have considered the fact that at trial, Sedillo disclaimed the Parker Center statement. Given the victims’ lack of gang involvement, Sedillo’s contradictory versions of the incident and his repudiation of the statement at trial, it is not reasonably probable the jury would have found he acted in imperfect self-defense.
Based on these circumstances, we confidently conclude there is no reasonable probability a different jury verdict would have been rendered had the trial court instructed on voluntary manslaughter. Consequently, any error in the trial court’s failure to instruct on voluntary manslaughter was harmless.
5. Sufficiency of the evidence to support the criminal street gang enhancement with respect to the incident of October 31, 2006.
Sedillo contends the criminal street gang enhancements associated with counts 2, 3 and 4 must be stricken because the People failed to show the October 31 shooting was committed for the benefit of Sedillo’s gang. Sedillo notes that, where a gang member commits an offense on his or her own, it presents a close case as to whether the defendant acted to benefit the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Sedillo claims that, apart from the fact Sedillo may have been a gang member, there was no showing the shooting was committed for the benefit of a gang. The victims were not gang members and one was female. Sedillo wore no gang clothing and wore a mask concealing his identity or any gang affiliation he may have had. There was no evidence indicating gang members took credit for the shooting or that Sedillo intended to benefit the gang by committing the shooting. Citing these factors, the defense gang expert testified the October 31 shooting was not gang related but was a random act of violence that frequently occurs on Halloween. Sedillo asserts the prosecutor conceded, in opposing a defense motion for acquittal at the close of the evidence, “No one knows why [Sedillo] did what he did. The fact remains he targeted these three innocent people, for whatever... reason[].”
Although the People’s gang expert, Detective Maldonado, testified the shooting was gang related, Sedillo argues Maldonaldo offered no basis for his opinion. Thus, Maldonado’s testimony was not “coupled with other evidence from which the jury could reasonably infer the crime was gang related.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) Rather, Maldonado’s testimony was mere speculation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.)
Sedillo also claims Maldonaldo’s opinion was flawed because the prosecutor asked the detective to assume that, prior to the incident, “three male Hispanic gang members” attacked the shooter’s “homies.” However, the prosecutor misquoted Sedillo’s Parker Center statement in that Sedillo did not say his fellow gang members had been attacked but that a friend who was a tagger had been attacked. Also, Sedillo did not state the individuals in the white Blazer were gang members.
Sedillo concludes the criminal street gang enhancements associated with counts 2, 3 and 4 must be stricken.
As previously noted, when assessing a claim of insufficiency of evidence, we review “the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) “The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]... ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ ” (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.)
Here, the jury reasonably could have found Sedillo shot at the three youths in the mistaken belief they were rival gang members. The jury may have concluded Sedillo fired either in a random act of gang violence or in retaliation for the earlier attack on his associate. Either scenario supported the jury’s finding Sedillo committed the charged offenses for the benefit of his gang. Sedillo’s assertion the prosecutor misquoted his Parker Center statement is without merit. Although Sedillo initially referred to the attacked individual as a tagger, he later referred to the individual as his “homie.” Thus, the prosecutor’s hypothetical did not misstate the facts of the case.
In sum, the testimony of the People’s gang expert, coupled with Sedillo’s Parker Center statement, provided sufficient evidence to support the criminal street gang enhancements associated with the incident October 31, 2006.
6. The trial court conducted the in camera hearing in accordance with the teaching of People v. Mooc.
The trial court conducted a pretrial hearing on Sedillo’s motion for discovery of the personnel records of Detectives Falvo and Cortez. The trial court granted the motion as to complaints involving “false reporting, false arrests, false testimony, [and] acts of dishonesty within five years of the event, and only as to complainants’ names, addresses and witness identity information.”
In response to Sedillo’s request, we have independently reviewed the sealed reporter’s transcript of the in camera hearing and conclude the trial court’s findings, as reflected in the sealed transcript, are sufficient to permit appellate review of its rulings and that the trial court properly exercised its discretion in ordering there were no qualifying complaints that required disclosure. (People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.