P. v. Cristobal

Filed 9/28/06 P. v. Cristobal CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

Leonard Chaitin for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

_____________

Enrique Cristobal (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of four counts of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664/187; counts 1, 2, 3 & 4),[1] one count of firing into an occupied motor vehicle (§ 246; count 5), and four counts of assault with a firearm (§ 245, subd. (a)(2); counts 6, 7, 8 & 9). The jury also found true various allegations that a principal had used and discharged a firearm in the commission of the attempted murders and that the offenses were committed in association with or for the benefit of a street gang. (§§ 12022.53, subd. (b) & (c); 186.22, subd. (b)(2) & (e)(1).) The trial court sentenced defendant to concurrent terms of life for counts 1, 2, 3 and 4 and enhanced each base term with a determinate term of 20 years for the discharge of a firearm.

On appeal, he contends that (1) certain of Officer Hernandez’s expert opinion testimony was inadmissible and denied him due process because it addressed the ultimate facts in the case and thus invaded the province of the jury; (2) the prosecution’s use of irrelevant and highly prejudicial evidence that the witnesses were fearful denied him a fair trial; (3) the trial court erred and denied him due process by permitting the parties to engage in further final argument after deliberation inquiries indicating that the jurors were confused about the legal concept of aiding and abetting.

The contentions lack merit, and we will affirm the judgment.

THE FACTS

I. The People’s Case-in-chief

On the evening of June 12, 2003, O.G. drove the family Honda sports utility vehicle (SUV) near his residence in the San Fernando Valley. He drove friends M.L. and R.L. to pick up J.M. at a Burger King on Chase Street. All of these youths lived in a gang neighborhood, but were nonaffiliated. O.G. stopped at the curb to pick up J.M. J.M. got into the SUV and pointed out that defendant, “Troubles,”[2] and three other occupants of a black Acura were driving out of the Burger King’s driveway ahead of them. O.G. testified that J.M. appeared to be “really” scared and told O.G., “We got to get out of here.”

O.G. looked over and saw defendant driving the Acura and Troubles sitting in its front seat. O.G. sped off, running a red light. The Acura pulled out into traffic behind the SUV and also ran the red light. O.G. was driving at a high rate of speed, and the Acura kept up with him. O.G. and J.M. testified that at Reseda Boulevard, defendant and Troubles put their arms out of the windows of the Acura. Both defendant and Troubles had firearms in their hands. The other two youths in the SUV saw Troubles prepare to shoot at them. Thereafter, they heard five to seven shots. O.G. turned left onto Wilbur Avenue, and the Acura turned off in another direction.

O.G. dropped off R.L. and immediately drove to the police station to report the shooting. The police observed two to three bullet holes in the rear of his SUV. On the way home, O.G. and his father observed defendant and Troubles drive by them in the Acura. O.G. telephoned 911. The police detained the Acura’s occupants, and O.G. made a field identification of defendant and Troubles. At the detention, the police found only defendant’s young brother Christopher occupying the rear seat.

After his arrest, defendant told the police that he was a Brown Pride Sureno gang member and that his moniker was “Little ‘G.’” Further evidence was introduced during the trial regarding the victims’ various identifications of defendant and Troubles and that Troubles was a Brown Pride Sureno gang member.

At trial, O.G. explained that the Brown Pride Sureno gang claimed an area up the street from him. R.L. lived there. O.G. had seen Troubles there once months earlier. At that time, Troubles had identified his gang membership and told O.G. that he and R.L. had to “take it somewhere else” as they were not gang members. O.G. had ignored Troubles and continued to frequent the area. At trial, R.L. testified that when the youths encountered the Acura, J.M. had pointed out Troubles to O.G. and said, “Hey, that one, that one guy that you had problems with.” R.L. said that at that point, O.G. had “panicked.” O.G. said, “Get us out of here,” and hit the gas.

Los Angeles Police Officer David Hernandez, a local gang officer, testified to the sociology and psychology of criminal street gangs and provided much of the evidence about the probable motive for the shooting. The officer also testified to the evidence supporting the section 186.22 gang enhancement. In reply to hypothetical questions, the officer opined that the circumstances of the shooting suggested gang activity and that the shooting was committed “to benefit” a criminal street gang.

II. The Defense

In defense, defendant denied the shooting and gang membership and claimed an alibi, i.e., that during the shooting he was at home with his family. His mother and father corroborated his claims. Defendant’s mother was impeached with her earlier statements that during the shooting, defendant was driving the family Acura in the company of his younger brother Christopher, age 13. At the time of trial, Christopher was in Mexico.

Two private investigators, former Los Angeles police officers, testified in defense. Steven Strong, who has had gang expertise, testified hypothetically to facts indicating that defendant was not a gang member. He also testified that he had interviewed defendant and had concluded that defendant was not a gang member. Strong pointed out that during the instant investigation the police had ignored usual investigative practices by failing to test the victims and the arrestees for gunshot residue. He opined that since there was no gang claim yelled out during the shooting, the shooting may well have been committed for personal reasons.

During cross-examination, Strong agreed that the main objective of a gang is to commit crime. He also agreed that the more brazen the crime a gang member commits and the more work he puts in for the gang, the more status he has within a gang. Strong noted that “putting in work“ means committing crime, and one notorious way of gaining status within a gang is to engage in a drive-by shooting. He said in his experience, drive-by shootings almost always involve gang activity.

Adalberto Luper, a former homicide detective, testified to his opinion that the bullets’ trajectory suggested that the bullets were not fired from another vehicle. He also expressed his opinion that the entire object of shooting at a vehicle was to kill its occupants.

Defendant’s employer, Mija Ho, testified that after 2002, defendant had worked for her as a painter at least 40 hours a week, and often longer. She found him to be quiet, honest, compliant, reliable, and hard-working. Ho’s testimony was the primary basis for Strong’s opinion that defendant was not a gang member; Strong gave his opinion that it was highly unusual for a youth to be a gang member and also be working 40 hours or more a week.

DISCUSSION

I. The Expert Gang Testimony

Defendant contends that the trial court abused its discretion by admitting portions of Officer Hernandez’s expert gang opinion testimony because it amounted to the officer’s subjective opinion about whether defendant had the requisite specific intent to commit attempted murder and for the gang enhancement. He also claims that the officer’s testimony that the shooting was committed for the benefit of a gang was inadmissible opinion testimony. He asserts that the opinions were unnecessary as they were of no benefit to the jury, they constituted inadmissible opinions on the ultimate facts, and invaded the province of the jury. He additionally claims that the use of the testimony denied him state and federal due process. We are not persuaded.

A. The Pertinent Facts

1. The Expert Gang Testimony in General

After stating his qualifications, Officer Hernandez testified to the mores, sociology, psychology, and culture of criminal street gangs. He explained the structure of a gang and that gang members persistently commit crime to gain status within their gang. He explained the gang concept of “turf” and that gangs engage in community intimidation to control their neighborhoods. He said that gang members engage in retaliation when other gang members or community members “disrespect” a gang member or disregard the wishes of the gang or a gang member. He said that gang members commit crimes in rival gang member’s areas to demonstrate that a gang member individually or the gang as a whole is “notorious.” Gang members back one another up, regardless of whether their conduct is against the law or immoral. “Putting in work” for the gang is important to a gang, as is committing heinous criminal acts.

Officer Hernandez testified specifically about the criminal street gang known as the Brown Pride Surenos. He described its territory. He said that Troubles was a documented member of that gang but defendant was not. The officer was not acquainted with defendant and had no personal knowledge about defendant’s gang membership. The prosecutor showed the officer a photograph seized of defendant in which defendant used his hands to throw a gang sign. The officer gave his opinion that defendant would not be making that sign absent membership in the Brown Pride Surenos.

2. The Hypothetical Questions in Issue

The prosecutor used several hypothetical questions to elicit motive and gang activity testimony, as well as to inquire into the officer’s opinion as to whether the shooting was committed for the benefit of the gang.

“Q. [By the prosecutor:] I am going to give you a hypothetical question. If an admitted documented Brown Pride gang member, we will call him Trouble, was hanging out with another guy who has not been contacted by gang officers but goes by the moniker of G., or Little G., and admitted to the officers that he was Brown Pride. And Trouble and G. were driving with three other guys in a car, in G.’s car. They see a guy that has disrespected Trouble in the past. We will call him [O.G.] . . . [O.G.] is with two of his friends in a car. . . . He is on his way to pick up another friend. Trouble and G. follow [O.G.] and his friends, driving through a red light, chasing them at high speed. Trouble and G. shoot at [O.G.]’s car driving down the street. Bullets hit [O.G.]’s car, and G. and Trouble speed away. Do you have an opinion as to why this crime was committed?

“A. [By Officer Hernandez:] . . . I would say that [Troubles] and [G.] . . . work in concert to go ahead and to take care of business, basically do some work for the gang, itself, whether it be if the individuals in the other car were rival gang members in a rival area, or to go ahead and commit a carjack and just -- car just happened to take off that they were tying to get to it but they feel it’s gone so I’ll start shooting at it now. I could say it would be a lot of other things. I would say it’s mostly stating that they are here, they are in a rival gang area, and they are bold enough to go ahead and shoot somebody and kill somebody . . . .

“Q. [By the prosecutor:] I want to go back to the hypothetical. I know I went through it once with you. But you are following a car and they believe that the driver of that car --”

Defense counsel objected that “. . . This isn’t being stated as a hypothetical.” The trial court indicated that the inquiry was a hypothetical and overruled the objection.

“Q. [By the prosecutor:] They believe the driver of the car disrespected Trouble. So do you have an opinion as to why this crime was committed?

“A. [By Officer Hernandez:] Well, to go and put this guy back in line or to go ahead and just make sure, you know, showing him, hey, showing everybody else if you disrespect me you are going to get what this guy gets, whether it’s killing him or shooting him. You are putting -- are showing everybody else, I am going to take care of business.

“Q. [By the prosecutor:] Benefit the gang?

“A. [By Officer Hernandez:] Benefits the gang very much so. Obviously their individual personally got disrespected, but he will take it to another level. He will say, you know what, you disrespected me and my gang when he does that. The other gang members look at him, says, you took care of our gang, you took care of our hood.”

B. The Relevant Legal Principles

Evidence Code section 801, subdivision (a), provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; . . .” Contrary to appellant’s argument that expert testimony may not extend to the ultimate issue to be decided by the jury, Evidence Code section 805 states: “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”

“In People v. Olguin (1994) 31 Cal.App.4th 1355, 1371 . . . the court explained that ‘[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. . . .’ On the other hand, ‘[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.’ [Citations.]” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The trial court has wide discretion to admit or exclude expert testimony and we may not interfere unless a clear abuse of discretion is shown. (Ibid.)

C. The Analysis

Among other authorities, defendant cites the decision in People v. Torres (1995) 33 Cal.App.4th 37, 46-47, to support his claim. In Torres, a police officer testified as an expert on gangs. He replied to certain of the prosecutor’s questions, giving the jury the legal definitions of extortion and robbery. He also volunteered during his expert testimony that the charged misconduct in the case constituted robbery. The court held that a witness cannot express his lay or expert opinion concerning the guilt or innocence of the defendant. It concluded that the officer expressing his expert opinion that the crimes were robberies was tantamount to expressing his subjective opinion that defendant was guilty of the robbery and of the first degree felony murder of the victim. (Id. at p. 48.)

Defendant does not cite the decision in People v. Killebrew (2002) 103 Cal.App.4th 644. However, he raises the claim of error found in Killebrew. There, the gang officer gave his expert opinion on what the various occupants of the car involved in the shooting were thinking. On appeal, the court concluded that the relevant authorities do not permit a gang expert to testify that a specific individual has specific knowledge or possesses a specific intent during the incident in question. To be admissible as expert testimony on whether and how a crime was committed to benefit or promote a gang, the officer’s testimony must be framed in terms of how gangs behave in general or in the abstract, not in terms of the specific defendant’s subjective expectations. (Id. at pp. 657-658.)

Defendant also cites the decision in People v. Valdez, supra, 58 Cal.App.4th at page 507. There, the court addressed the issue of whether the expert gang witness can render an expert opinion on whether a crime was committed for the benefit of the gang. The Valdez court concluded that such an issue was an ultimate issue for the jury and explained: “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ [Citations.] ‘”[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved . . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.”’ [Citation.]” (Id. at p. 507.)

The Valdez court concluded that the question of admissibility revolves on whether the opinion is sufficiently beyond common experience that the expert opinion would assist the trier of fact. The Valdez court held that in that instance, there were some unique factors that made the expert’s opinion admissible. But in the ordinary gang case, such expert opinion was inadmissible. It reasoned that in most cases, after hearing the expert’s foundational testimony about gang rivalries, turf, respect, and the forms of violence used by gangs, a jury can determine whether the crime was committed for the benefit of the gang as easily as can the expert, thereby precluding the need for expert opinion. (Valdez, supra, 58 Cal.App.4th at p. 508.)

Here, the officer’s opinion given in reply to the first two of the hypothetical questions was admissible. “A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4, citing People v. Gardeley (1996) 14 Cal.4th 605, 618-619; accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.) The officer responded to the prosecutor’s first two hypothetical questions by essentially describing that the shooting appeared to constitute gang activity, evidence that is relevant to prove motive and intent, as well as to the elements of the gang enhancement. The testimony was not tantamount to an expression of the officer’s subjective opinion on defendant’s guilt or whether defendant or Troubles had the specific intent to commit attempted murder or the specific intent necessary to prove the gang enhancement. The officer was merely expressing his opinion in the abstract that such conduct generally would suggest gang activity.

Defendant complains that in response to the third hypothetical question, the officer gave his opinion on whether the crime was committed to benefit the gang. Defendant did not enter a specific objection on the grounds discussed in Valdez, supra, 58 Cal.App.4th at page 508. Hence, we conclude that the issue is forfeited. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1140; Valdez, supra, at p. 505.) However, even if we address the issue, we will not conclude there is reversible error.

At best, asking the officer for his opinion on the ultimate issue of benefit to the gang was harmless error. O.G. testified that recently, Troubles had told him that he and R.L. should hang out somewhere other than the turf belonging to Brown Pride Sureno. O.G. also testified that he had repeatedly ignored this direction. The officer/expert testified about the concepts of gang turf and disrespect and that ignoring a gang member’s directions would lead to gang retaliation. The officer explained that even in the absence of a classic gang retaliation scenario, the gang members might have been attempting to commit a carjacking or a similar crime. The officer rendered proper expert opinion in response to hypothetical questions that the shooting fit the profile of gang activity. The trial court instructed the jury on how to consider this expert testimony. In these circumstances, it is not reasonably probable that the jury would have reached a different finding on the gang enhancement had this latter opinion been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

In his reply brief, defendant elaborates: (1) he asserts that the prosecutor’s hypothetical questions were a sham allowing the officer to testify to specific intent as if he had personal knowledge of these issues; (2) the officer’s replies to the hypothetical questions were improperly stated in terms of the officer’s personal knowledge; (3) by the testimony, the officer gave his expert opinion on the ultimate facts in the case, i.e., on the specific intent element of attempted murder and on the specific intent necessary for the gang enhancement, as well as on the issue of whether defendant committed the charged offenses for the benefit of the gang; (4) the testimony was unnecessary on these ultimate facts, and thus inadmissible, because the background the officer had already testified to was sufficient to allow the jury to draw knowledgeable conclusions about whether defendant entertained the requisite specific intents. In conformity with the decision in People v. Ward (2005) 36 Cal.4th 186, 209, 212, we find no error in the form of the hypothetical questions. The prosecutor and the court were explicit in describing that the prosecutor’s questions were “hypothetical[s].” The jury was given instructions on how to consider expert opinion and were informed that if it doubted the proof of the factual premises supporting an expert opinion, it was to disregard the opinion and to give it only as much weight as it determined the opinion deserved. The jury would have understood that the officer’s replies to the prosecutor’s hypothetical questions described the actors’ conduct and motives generally, and was not comment on the officer’s subjective opinions on guilt and specific intent. (Ibid.; see also People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947 & fn. 3.)

D. Due Process

Citing several federal authorities, defendant also complains the errors amount to a violation of state and federal due process. The federal cases cited by defendant refer to the federal rule and authorities on the same evidentiary points discussed under state law. We do not decide the admissibility of evidence in California under the federal rules of evidence. Consequently, we deem defendant’s due process claim a mere constitutional “‘gloss’” on his state evidentiary claim. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)

We find his denial of due process contention unpersuasive insofar as we find no evidentiary error. (Boyer, supra, 38 Cal.4th at p. 441, fn. 17.)

With respect to the testimony on whether the shooting was committed for the benefit of the gang, the question is “whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920 (Jammal).) “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’” (Id. at p. 920.) We conclude that the officer’s opinion as to whether the crime was committed for the benefit of the gang was of little consequence to the proof that the shooting was committed in association with or for the benefit of a criminal street gang. Consequently, the use of the testimony did not result in fundamental unfairness.

2. The Victim’s Fear

Defendant contends that the use of evidence of fear and the witnesses’ reluctance to cooperate with the authorities denied him federal due process. The contention lacks merit.

A. The Pertinent Facts

Defendant has set out nine instances of trial testimony to illustrate that there were numerous references to the fear suffered by the victims. As the success of defendant’s claim is dependent upon his conclusion that this entire category of evidence was inadmissible, there is no need for us to set out in detail each item of evidence referenced.

B. The Analysis

Defendant argues that the evidence of witness fear was “unnecessary” and “immaterial,” i.e., irrelevant, to the issues in the case and “clearly put forth to invite the jury to infer the gangs put people in constant fear and terrorize neighborhoods.” Defendant concedes that it is true that gangs may frighten and terrorize the citizens who live in a community. However, he asserts that the issue in the instant case was guilt of the charged offenses. He urges that consequently, a criminal street gang’s instilling of fear in a community was wholly irrelevant to the issues in the case, and thus, the use of this testimony was irrelevant and violated due process with the meaning of Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103 (Windham), and Jammal, supra, 926 F.2d at pages 919-920.

After convictions in state court, the defendants in Windham and Jammal filed petitions for writs of habeas corpus in the Ninth Circuit, claiming denials of due process based on the use of certain evidence used to convict them. The Jammal court explained the legal principles that applied to its evaluation of the claims. “To begin with, we note that failure to comply with the state’s rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief. While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. See Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983) (‘Due process draws a boundary beyond which state rules cannot stray.’), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point. As we explained in Reiger v. Christensen: The . . . issue is not whether introduction of [the evidence] violated state law evidentiary principles, but whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process. [Citations.]” (Jammal, supra, 926 F.2d at pp. 919-920.)

At the outset, we agree with the People’s assertion that the issue is forfeited. Defendant did not raise a specific constitutional objection in the trial court on grounds of a denial of due process. He objected to only one complained-of item of testimony on grounds of relevancy, but the trial court sustained that objection. In no other instance did he object on grounds of relevancy or enter Evidence Code section 352 objections that would permit him to raise this issue on appeal. Consequently, the issue is not cognizable on appeal. (People v. Boyette (2002) 29 Cal.4th 381, 424.)

Moreover, on the merits, the contention also fails.

We conclude the evidence was relevant and its probity outweighed any prejudice involved in the use of the evidence. As the Jammal court explains, improperly admitted evidence “will violate due process only when ‘there are no permissible inferences the jury may draw from the evidence.’” (Accord, Windham, supra, 163 F.3d at p. 1103.) Here, the witnesses’ fear of testifying or their anticipated fear of retaliation was relevant to witness credibility. (People v. Gonzalez, supra, 38 Cal.4th at p. 946.) Also, the gang testimony was relevant to show gang membership as a preliminary issue to establishing identity. It was also relevant to show motive and intent, which was another preliminary issue relevant to proving the mental elements necessary to commit offenses and to establish the elements of the gang enhancement. It is well settled that for these important purposes the evidence of gang membership and motive were admissible, notwithstanding that such testimony about gangs has some tendency to inflame the jury. (People v. Ward, supra, 36 Cal.4th at p. 210; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551.) Defendant’s trial was fundamentally fair.[3]

3. Reopening of Final Argument

Defendant contends that the reopening of final argument for the parties to comment further on the theory of aiding and abetting was an abuse of discretion and denied him his right to due process. We disagree.

A. The Pertinent Facts

The trial court charged the jury with CALJIC Nos. 3.00 and 3.01, concerning aiding and abetting.

1. The Original Closing Argument

During closing argument, the prosecutor argued that appellant directly and actively committed the attempted murders by personally shooting at the youths in O.G.’s SUV. In the alternative, the prosecutor briefly argued that defendant would also be guilty if he aided and abetted another during the shooting. She explained the gist of the legal principles of aiding and abetting. Then she argued that defendant would be equally liable for the crimes as an aider and abettor, even if he merely drove the car during the shooting.

In response, defense counsel urged that the trajectory of the bullets impacting the SUV demonstrated that the bullets could not have been shot from a passing car and that the prosecution witnesses were lying.

2. The Jury Inquiries and the Trial Court’s Ruling

During jury deliberations, the jury sent out the following notes:

“We are having some trouble interpreting the law. If we find the defendant guilty of aiding and abetting, does that mean that we have to find him guilty of counts 1 [through] 4. If you would like, can you meet with us to discuss this.”

“If we find the defendant Not Guilty on counts 1 [through] 4 and 5 [through] 9, can we find him guilty on an aiding and abetting charge? No count specifically states this.”

Out of the presence of the jury, the trial court and counsel conferred on the issues raised by the jury’s notes and it was decided to have further final argument. The court noted that reopening final argument gave counsel the opportunity to “explain to the jury further” as the concept of aiding and abetting was not “explained to them enough” or “at least to [the jury’s] satisfaction.”

Defense counsel objected on state and federal due process grounds. He argued the following: “I believe that reopening argument, once the jury has begun to deliberate [in] an issue such as this, denies the defense their right to a fair trial and, in essence, allows the prosecution two opening arguments to the jury after -- after the case is concluded, or after the case has been submitted to the jury. My particular concern . . . is that the prosecutor is going to discuss with the jury . . . something to be printed out about aiding and abetting.”

Defense counsel went on to object to the prosecutor’s use of a bullet chart during her further argument to the jury, on which was stated the principles of aiding and abetting and the prosecutor’s points for further argument. The trial court overruled the objection.

The trial court then told the jury that its previous jury instructions adequately set forth the principles of aiding and abetting. It was asking the prosecutor and defense counsel to engage in further closing argument on the issue of aiding and abetting to assist the jury’s understanding on that issue.

3. The Further Argument

The prosecutor argued that, “To aid is to assist the efforts of another, and to abet is to know the wrongful purpose of the perpetrator.” She explained that “any person who aids and abets the commission of a crime . . . with knowledge of the unlawful purpose of the perpetrator . . . and has the intent to promote, encourage, facilitate, give advice, instigate, or by any act aid in the commission, is guilty of the crime.” She urged that her theory of the case was still that defendant had personally committed the shooting. However, she would argue the viable alternative aiding and abetting theory just to be “very clear” about how the jury would apply aiding and abetting principles to the evidence.

The prosecutor then discussed the evidence in the light of the principles of aiding and abetting.

In response, defense counsel asked the jury to ignore the legal principles the prosecutor had printed up on her bullet chart; he told the jury that the only legal principles that applied were those contained in the trial court’s instructions. He related the elements of aiding and abetting to the evidence. He urged that there was no evidence that defendant was aware of the actor’s purpose before or during the shooting and that mere knowledge and a failure to prevent the crime was insufficient to constitute aiding and abetting. He also urged that defendant had to “share” the actor’s intent and did not do so here.

After the parties completed the additional argument, defense counsel objected that the prosecutor had urged a theory that she had not argued previously.

The trial court overruled the defense objection and denied a defense motion for a mistrial.

Later that day, the jury returned its guilty verdicts.

B. The Analysis

Initially, defendant cites to this court several civil decisions that he claims stand for the following propositions: (1) the due process clauses of the state and federal Constitutions require that a criminal defendant be given notice of the charges against him and an opportunity to defend; and (2) on appeal, a party cannot change the theory upon which the case was tried and pursue a new and different theory entitling him to a reversal on appeal. Based on these legal principles, defendant argues that the trial court’s ruling constitutes reversible error because “it is manifestly unjust to allow a party to change its theory of trial after the case has been tried for over two weeks and the cause has been argued and submitted to the jury.” He also asserts that reopening oral argument “[did] not comport with the elementary due process requirements . . . above.”

The applicable legal principles are stated in the respondent’s brief.

Section 1138 provides as follows: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

“The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judge’s function to facilitate such an understanding by any available means.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250, second italics added.)

In this instance, the record demonstrates that defendant had notice of the charges and theories against which he would be required to defend. The charging documents in the case, the preliminary hearing testimony, and the trial evidence gave defendant ample notice that he could be found criminally liable as an aider and abettor. Two of the victims testified that defendant was brandishing a gun out his window before they heard the multiple shots. Defendant was also identified as the driver of the Acura. During the discussion of jury instructions, the prosecutor asked for, and obtained, jury instructions on aiding and abetting. During the original final argument, the prosecutor briefly argued aiding and abetting. Thus, defendant’s objection that the prosecutor argued a new theory of which he had no notice was not well taken.

Further, the trial court did not abuse its discretion by giving the parties the further opportunity to comment on aiding and abetting. The trial court had previously charged the jury with CALJIC Nos. 3.00 and 3.01, and the jury presumably had a copy of those instructions available to it during deliberations. There was nothing the trial court could add to these instructions. During their opening arguments, the People and the defense had given short shrift to a theory of aiding and abetting for reasons of trial strategy. The prosecutor wanted the jury to find defendant guilty on her primary theory that defendant was one of two actors; defense counsel did not want to highlight aiding and abetting, hoping that the jury would find the evidence of defendant’s participation in the shooting wanting and acquit defendant without considering aiding and abetting.

The trial court did not abuse its discretion by concluding that further final argument would illustrate for the jury how the concept of aiding and abetting might apply to the trial evidence. The trial court properly concluded that the jury would benefit from having the parties relate the trial evidence to the legal principles in question. Apparently, the jury did benefit from further argument because it made no further inquiries of the trial court and soon thereafter returned its guilty verdicts.

Reopening final argument was a proper exercise of discretion, and the trial court’s use of such a procedure did not result in fundamental unfairness.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________, J.

CHAVEZ

We concur:

__________________, P. J.

BOREN

________________, J.

DOI TODD

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Hector Jovel, the codefendant known as “Troubles,” was tried separately. He is not a party to this appeal.

[3] The People interpret defendant’s contention as raising an issue of prosecutorial misconduct. That claim also fails. Defendant did not object to the testimony and ask the trial court to strike it and give the jury a curative admonition. A curative admonition would have cured any error. Consequently, the issue is forfeited. (People v. Young (2005) 34 Cal.4th 1149, 1185.) Also, the evidence was admissible under state law and so highly relevant that we cannot find that its use infected the trial court with such unfairness as to make the resulting convictions a denial of due process. (Id. at p. 1184.) Further, the prosecutor’s conduct did not amount to the use of deceptive or reprehensive methods to attempt to persuade either the court or the jury of defendant’s guilt. (Ibid.) There is no prosecutorial misconduct under state or federal law.