Filed 5/2/17 P. v. Quintana CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE ANGEL QUINTANA
et al.,
Defendants and Appellants.
B248542
(Los Angeles County
Super. Ct. No. KA098952)
APPEALS from judgments of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Reversed.
Sara H. Ruddy, under appointment by the Court of Appeal,
for Defendant and Appellant George Angel Quintana.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant Corey Antonio Gardner.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Victoria B. Wilson, David
2
C. Cook, Kathy S. Pomerantz and Scott Taryle, Deputy Attorneys
General, for Plaintiff and Respondent.
___________________________
INTRODUCTION
George Angel Quintana (Quintana) and Corey Antonio
Gardner (Gardner) (collectively defendants) appeal from
judgments of conviction entered after a jury found them guilty of
second degree murder (Pen. Code, § 187, subd. (a)) and found true
the allegation the crime was committed for the benefit of a
criminal street gang (id., § 186.22, subd. (b)). The trial court
sentenced defendants to terms in state prison of 15 years to life.
On appeal, defendants claim instructional error,
insufficient evidence to support their convictions, and that their
convictions were barred by double jeopardy, collateral estoppel
and Penal Code section 654’s prohibition against subsequent
prosecution after an acquittal or conviction based on the same
conduct. We agree with defendants’ claim of instructional error
and reverse on that basis.
FACTS
A. Prosecution
1. The Murder
Early in the morning on January 30, 2011, Rene Pichardo
(Pichardo) was having a gathering in the front yard of his house
on Howellhurst Drive in Baldwin Park. Maria Robles (Robles),
Benjamin Gonzalez (Gonzalez), Athena Scott (Scott), and her
boyfriend, Diego Sparling (Sparling), were present at the house.
3
Scott is Gardner’s cousin. Scott testified at trial she
considered Gardner to be like a brother to her because her
mother had helped raise him when he was a teenager. She also
knew Quintana because he had grown up with Gardner and
because she had lived in a house owned by Quintana’s
grandfather. Scott had previously dated Gardner’s friend,
Andrew Aguilar (Aguilar), but Scott and Aguilar had broken up a
year before. According to Scott, Gardner and Quintana were
members of the Eastside gang; Sparling was a member of the
Northside gang and had a gang tattoo on his head. Scott had
been friends with Pichardo since high school and knew he was
not a gang member. There was no evidence at trial that Pichardo
was a member of any gang.
Late on the night prior to the murder, Aguilar telephoned
Pichardo’s younger brother, Robert, and asked to “hang out” with
him. Robert warned him not to come over to the house because
Scott was there with Sparling, her new boyfriend.
Gonzalez was in Pichardo’s front yard with a group of
friends when he saw Quintana, Gardner, and Aguilar arrive at
the house together. Gonzalez testified the three looked “serious,”
and they were not making eye contact with anyone. The three
men then looked in Sparling’s direction, and one of them yelled,
“Eastside Bolen,” the name of a street gang in Baldwin Park.
According to Gonzalez, the three “rushed” Sparling and began
hitting him. Sparling backed up and tried to defend himself by
swinging back at them. As they fought, Quintana, Gardner,
4
Aguilar and Sparling stumbled through the gate at the head of
the driveway and into the backyard.1
Robles was in the backyard with Scott and other friends
when she heard the sound of a fight breaking out in the front
yard. She walked toward the gate, but it swung open quickly and
hit her in the back as she tried to move away. Robles testified
she turned and saw Quintana, Gardner and Aguilar hitting
Pichardo in the stomach, chest, head, and lower back. Pichardo
was kneeling down, trying to protect his head.2 Robles never saw
a weapon.
According to Robles, at some point Aguilar broke away from
the fight and ran toward the back of the yard. Quintana and
Gardner continued to hit Pichardo. Robles and Scott tried to
break up the fight by throwing beer bottles and shouting at the
group, but they continued to fight. Robles yelled for Gonzalez
and some of the other men to come help.
Gonzalez testified that he followed the fight through the
gate and into the backyard where he saw Pichardo struggling
with someone—Gonzalez could not tell who that person was. The
person was holding on to Pichardo and throwing punches at
Pichardo’s torso. Gonzalez did not see a weapon. Pichardo put
someone in a headlock, and Gonzalez went over and hit that
person to try to break up the fight. The person in the headlock
held on to Pichardo. Other guests then came into the backyard,

1 At the preliminary hearing, Gonzalez testified that he did
not see Quintana, Gardner and Aguilar rush Sparling. He was
unable to explain the discrepancy and stated that he did not
remember his preliminary hearing testimony.
2 Robles did not recall testifying previously that only two
people were attacking Pichardo.
5
and the fight ended with Quintana, Gardner and Aguilar being
chased out to the front yard.
Scott testified that she was standing in the backyard when
the gate swung open to reveal three individuals fighting. She
recognized Quintana and Pichardo, but not the third individual.
She saw Quintana swinging at Pichardo’s face and Pichardo
fighting back, swinging at both men with his fists. Quintana hit
Pichardo in the face, while the other person hit Pichardo in the
face and chest. Even after Pichardo put Quintana in a headlock,
Quintana kept hitting Pichardo in the chest, back and side.3
Scott saw Gonzalez and some of the other men, one of whom she
acknowledged was a “big guy,” come into the backyard and join
the fight. She saw Gonzalez fighting with the person whom
Pichardo did not have in a headlock. These new men were not
trying to stop the fight, she admitted. Scott never saw a weapon
being wielded by anyone that night.
Scott testified she could not see Sparling anywhere. She
and Robles ran to the back of the yard, where they found Aguilar
and Sparling hitting each other. Scott screamed, “Babe,” and
Aguilar and Sparling stopped fighting. Aguilar ran toward the
gate, screamed “stop,” and then ran to the front of the house.
Scott and Robles followed Aguilar to the front of the house.4

3 In a February 14, 2011 interview, Scott told the police that
Pichardo had the other person in a headlock, and she pushed or
pulled Quintana away from Pichardo. Robles testified that it was
Quintana in the headlock, but she previously testified that she
did not know who Pichardo had in a headlock.
4 Scott did not recall testifying previously that she saw
Quintana still fighting with Pichardo when she passed by them.
6
When Aguilar stopped in the middle of the street, Scott yelled at
him and pushed him.
Gardner then drove up in a white car. According to Robles,
Scott yelled at Gardner, “You, I can’t believe it’s you.”5 Gardner
drove the car in reverse toward Robles, Scott and a group of
people who were gathered in the street. People threw bottles at
the car and hit and kicked it; Sparling punched the car window.
Aguilar jumped into the car, and Gardner drove away.
Quintana then got into a truck parked in front of the house.
There was blood on the driver’s side door. Scott told him, “I see
you.” Quintana told her he did not care and drove away.
Pichardo walked to the front of the house, where he
collapsed, bleeding from stab wounds to his chest and below his
neck. The paramedics were called and took Pichardo to Los
Angeles County/USC Medical Center, where he immediately
underwent emergency surgery. Pichardo had been stabbed three
times in the right chest; one of these stab wounds, near his neck,
was superficial, but the other two penetrated his ribcage. He had
been stabbed three times on his sides; one of the wounds was in
the area of his liver and another by his kidney. Five of the
wounds were potentially fatal. Pichardo died 11 days later as a
result of his wounds.
2. The Investigation and Subsequent Events
Detective Gary Breceda of the Baldwin Park Police
Department arrived at Pichardo’s house at about 5:30 a.m. He

5 Scott testified that she did not say anything when she saw
it was Gardner driving the car.
7
spoke to Scott, who told him Quintana, Gardner and Aguilar had
been at the house.
Detective Breceda proceeded to Aguilar’s house on
Vineland Avenue in Baldwin Park. He observed a white Nissan
Altima parked in front of the house. It had sustained damage to
the rear tailgate, parts of which were found in front of Pichardo’s
house. Sparling’s palm print was found on the rear driver’s side
door.
Baldwin Park Police Officer Richard Ogas interviewed
Quintana at Queen of the Valley Hospital on January 30, 2011,
where Quintana was being treated for a stab wound to his hand.
Quintana stated that he and Gardner were at a bar in West
Covina, where they were jumped by assailants in the parking lot.
Quintana told Officer Ogas that they had walked to the hospital
for treatment. Quintana did not say anything about being at
Pichardo’s house.
Detective Breceda interviewed Gardner at Queen of the
Valley Hospital on January 31, 2011. Gardner had received
emergency surgery for a stab wound to his upper torso. He also
suffered multiple fractured ribs. He told Detective Breceda that
he and Quintana were walking near Big Dalton Avenue, about
half a mile from Howellhurst Drive, when they were jumped by a
group of people. After the attack, he walked to the hospital,
which was about two miles away. Gardner said he had never
been to Pichardo’s house and was not injured there.
The police never recovered the knife used to stab Pichardo.
On March 11, 2011, Robles identified Quintana and
Gardner from photographic lineups. Regarding Quintana, she
wrote: “saw punching motion to stomach.” Regarding Gardner,
8
she wrote: “saw him standing by [Pichardo’s] head to the right,
swinging.”
Prior to trial, Scott received two telephone calls from
blocked numbers. During the first call, a man told her not to
testify and then hung up. During the second call, the caller said
Scott was a “snitch.” As a result of these calls, Scott was
concerned about her family’s safety.
3. DNA Evidence
DNA profiles obtained from a bloodstain on Pichardo’s
sweatshirt matched his DNA profile. They did not match the
DNA profiles of Quintana, Gardner or Aguilar.
DNA profiles obtained from bloodstains on Quintana’s
shoes and jeans matched his DNA profile. They did not match
the profiles of Pichardo, Gardner or Aguilar.
DNA profiles from several bloodstains on Gardner’s shoes
and jeans matched Quintana’s DNA profile but not those of any
of the others. DNA profiles from one bloodstain on Gardner’s left
shoe and one on his jeans matched his DNA profile but not those
of any of the others. The DNA profile from a small bloodstain on
the back of Gardner’s jeans showed more than one contributor,
with Pichardo being the major contributor.
4. Gang Evidence
Baldwin Park Police Detective Esteban Mendez testified as
an expert on the Eastside Bolen Park and Northside Bolen Park
gangs. He testified in general regarding gang membership, gang
territories, the importance of respect in gang culture, commission
of crimes by gang members, and gang rivalries.
9
Detective Mendez testified that the Eastside Bolen Park
and Northside Bolen Park gangs were rivals. Pichardo’s house
was in Eastside Bolen Park gang territory.
Detective Mendez identified Quintana and Gardner as good
friends and members of the Eastside Bolen Park gang. Both had
gang tattoos on their bodies. The detective identified Sparling as
a member of the Northside Bolen Park gang, with a gang tattoo
on the top of his head.
Most of Detective Mendez’s contacts with Gardner occurred
prior to 2008. He noted that Gardner had not previously been
arrested in connection with a violent crime, and Gardner was in
protective custody after testifying for the prosecution in an
unrelated gang murder case.
In response to a hypothetical question based on the facts of
this case, Detective Mendez opined that the stabbing of Pichardo
was done for the benefit of, at the direction of, or in association
with a criminal street gang. By aiding a fellow gang member in a
fight and escalating the fight by using a weapon, a gang member
would enhance both his reputation within the gang and the
gang’s reputation for violence. Such conduct aids the gang in
creating an atmosphere of fear and intimidation, which, in turn,
discourages witnesses and victims of gang crimes to cooperate
with the police. The fact that the victim was not a gang member
did not change the detective’s opinion. He explained that
interference or disrespect by a non-rival gang member required a
response, usually a violent one. Even if the victim was “collateral
damage,” it still enhanced the gang’s reputation for violence.
10
B. Defense
1. Quintana
Quintana did not testify but offered the testimony of
Baldwin Park Police Officer Jeffrey Honeycutt, who had arrived
at Pichardo’s house within an hour or two of the incident and
interviewed Gonzalez at that time. According to Gonzalez in that
interview, the three men walked up the driveway, began yelling,
and attacked Pichardo and another man whom Gonzalez did not
know. Pichardo ran into the backyard. Gonzalez ran into the
backyard and saw the same three men hitting Pichardo, whom
they had cornered against a wall. Gonzalez joined in the fight to
try to help his friend. He struck one of the men in the face. The
man he struck was six feet tall, with a mustache and a shaved
head.6 The other two attackers were about five feet, five inches
tall with shaved heads. While this was going on, other people in
the backyard were throwing bottles to try to stop the attackers.
Gonzalez told Officer Honeycutt the three attackers
eventually ran down the driveway to the street. Gonzalez saw
them leave in a white Nissan Altima. After the fight stopped,
Gonzalez saw that Pichardo was bleeding from his chest.
Rose Marie Sauceda worked with Quintana at a toy store
warehouse, where Quintana worked from September 2010 to
April 2011. She described Quintana as a respectable employee on
whom coworkers could depend.

6 At trial, Gonzalez denied telling Officer Honeycutt that the
man he struck was six feet tall and had a mustache; he testified
that he could not see the man’s face. He also testified that he
was very upset at the time he talked to Officer Honeycutt, and he
could not recall who the attackers were or what they looked like.
11
2. Gardner
Gardner testified in his own defense. He admitted he was a
member of the Eastside Bolen Park gang but claimed he did not
engage in any criminal activity as a gang member and never
carried a weapon. He admitted having one misdemeanor
conviction for assault or battery and one for tagging.
Gardner was friends with Sparling when they were
younger, but that changed when he joined the Eastside Bolen
Park gang and Sparling joined the Northside Bolen Park gang.
Gardner had known Quintana since elementary school and
Aguilar since junior high school.
Gardner left the gang life in 2010 and moved his family to
Fontana to get away from the gang. However, he moved back to
Baldwin Park about a year later to help his wife’s mother, who
was having financial problems.
On the night of January 29, 2011, Gardner and Quintana
were at Aguilar’s house, drinking beer. Aguilar spoke to someone
on the telephone and then asked Gardner if he wanted to go see
Scott. Gardner agreed even though he knew Scott was dating
Sparling, a Northside Bolen Park gang member, as Sparling’s
gang membership did not matter to him, and he did not know
Sparling would be at Pichardo’s house. Aguilar did not say
anything about wanting to fight Sparling. Gardner drove to
Pichardo’s house in his wife’s white Nissan Altima. Quintana
and Aguilar drove there in an SUV belonging to Quintana’s
grandfather.
When they arrived at Pichardo’s house, there were people
gathered in the driveway and on the front lawn. Aguilar tripped
over a box of beer on the ground, and someone caught him.
Gardner saw an arm swing at Sparling, but he could not see
12
whose it was. Gardner knew it was not Aguilar who swung at
Sparling, because Aguilar was directly in front of Gardner.
Gardner made eye contact with Sparling. A few seconds later,
there was a loud noise, and Sparling and some other people ran
toward the back of the house.7
Gardner followed the group to the backyard. As he entered
the yard, a much bigger man punched him in the nose, and he
fought back. Gardner testified he and the other man hit each
other in the face for ten seconds. Other people joined the fight,
and he was hit on the back of his head and the side of his face.
Gardner did not see Pichardo or anyone else he recognized in the
backyard. Eventually, Gardner was able to break away from the
fight, and he ran to his car. He did not know he was injured until
he sat down in the car and felt a burning sensation beneath his
ribs. When he reached down, he felt wetness and realized he was
bleeding.
Sparling ran to the car and tried to open the door, but it
was locked. Sparling began to punch the car window, and other
people started to hit the car. Gardner quickly drove away. He
did not see Scott, Aguilar or Quintana in front of the house. He
drove back to Aguilar’s house, where another friend then drove
him to the hospital. He remained hospitalized for four or five
days.
One month after the incidents leading to the death of
Pichardo, Gardner testified against gang members in an
unrelated murder trial where the victim was his wife’s brother.
As a result of his testimony, the gang placed a “green light” on

7 Gardner denied that the three of them yelled “Eastside
Bolen” and rushed Sparling.
13
him, meaning he could be killed. Gardner was concerned that he
and his family might be attacked by gang members.
Gardner acknowledged giving a false statement to the
police at the hospital but said he did so because he did not want
anyone else to get in trouble. At that time, he knew Quintana
had been injured in the fight but did not know about Pichardo’s
injuries.
Gardner’s wife testified that early in 2009, Gardner
changed his life. He stopped spending time with gang members,
although he remained friends with Quintana. After Gardner
testified at the trial of the people who killed her brother, the
family had to move due to concern for their safety.
DISCUSSION
A. Double Jeopardy and Collateral Estoppel
1. Defendants’ Motion
This was the second trial of the defendants. At the prior
trial, a jury found both defendants not guilty of assault by means
of force likely to produce great bodily injury as to Sparling but
the jury was unable to reach a verdict as to Pichardo’s murder.8
The prosecution’s theory in the first trial was that the death of
Pichardo was the “natural and probable consequence[]” of a
simple assault on Sparling.
At the retrial, the prosecution pursued only second degree
murder charges against defendants. Prior to the jury being

8 At the previous trial Aguilar was convicted of assault by
means of force likely to produce great bodily injury on Sparling
but acquitted of the murder of Pichardo.
14
empaneled, defendants moved to preclude the prosecution’s
reliance on the “natural and probable consequences” doctrine9 in
light of their acquittal of the aggravated assault on Sparling.
They claimed the prosecution should be collaterally estopped
from relying on the simple assault on Sparling as the target
offense on which application of the natural and probable
consequences doctrine was based. In the alternative, they
requested that the jury be informed of the acquittal.
The trial court stated it did not “believe the People are
collaterally estopped from relitigating perhaps a theory of
liability that is perhaps inconsistent with the verdicts of the
outcome of the first trial.” The court was also “very reluctant to
allow perhaps evidence of . . . the outcome of the first trial as
evidence in our case. I think that would be very confusing for the
jury, almost misleading.” The court also excluded evidence of
Aguilar’s acquittals. It concluded the finding that defendants
were not guilty of an assault on Sparling did not preclude the
People “from pursuing the same underlying theory of liability for

9 Under the natural and probable consequences doctrine, an
aider and abettor “‘is guilty of not only the intended crime [target
offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable
consequence of the intended crime. The latter question is not
whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, it was reasonably
foreseeable. [Citation.]’ [Citation.] Liability under the natural
and probable consequences doctrine ‘is measured by whether a
reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’
[Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920.)
15
purposes of homicide liability.” The not guilty finding just
precluded the People from pursuing the charge on which
defendants were acquitted.
2. Double Jeopardy
A double jeopardy claim must be raised at trial, or it is
forfeited on appeal. (People v. Holloway (2004) 33 Cal.4th 96,
155, fn. 18; People v. Williams (1999) 21 Cal.4th 335, 343-344;
People v. Sullivan (2013) 217 Cal.App.4th 242, 246.) Defendants
did not raise a double jeopardy claim at trial, nor plead it as an
affirmative defense. They cite no authority to support their
assertion that merely mentioning the prior acquittal of assault on
Sparling in connection with their collateral estoppel argument
was sufficient to raise a double jeopardy claim. We conclude the
claim has been forfeited on appeal.
3. Collateral Estoppel
The doctrine of collateral estoppel “‘bar[s] relitigation of an
issue decided at a previous proceeding “if (1) the issue necessarily
decided at the previous [proceeding] is identical to the one which
is sought to be relitigated; (2) the previous [proceeding] resulted
in a final judgment on the merits; and (3) the party against whom
collateral estoppel is asserted was a party or in privity with a
party at the prior [proceeding].” [¶] It is implicit in this threeprong
test that only issues actually litigated in the initial action
may be precluded from the second proceeding under the collateral
estoppel doctrine. [Citation.] An issue is actually litigated
“[w]hen [it] is properly raised, by the pleadings or otherwise, and
is submitted for determination, and is determined . . . .”’
[Citations.]” (People v. Carter (2005) 36 Cal.4th 1215, 1240.) The
16
purposes of the doctrine are “‘(1) to promote judicial economy by
minimizing repetitive litigation; (2) to prevent inconsistent
judgments which undermine the integrity of the judicial system;
and (3) to provide repose by preventing a person from being
harassed by vexatious litigation.’” (Ibid.)
The People in essence concede that collateral estoppel
barred retrial of the murder charges under the natural and
probable consequences doctrine based on the assault on Sparling.
Their position is that collateral estoppel does not apply because
they tried defendants in the second trial on the theory that
Pichardo’s murder was a natural and probable consequence of an
assault on Pichardo himself.
In a discussion on jury instructions, the following colloquy
took place:
“[The court:] People, do you want to put on the record your
theory of liability for the murder charged in count 1?
“[The prosecutor]: Yes, your honor. The People are
proceeding under the theory that the simple assault, the target
crime, is as to Rene Pichardo.
“The court: The concern as expressed by the defense at
some point in the trial that they felt the target crime, if any, was
Diego Sparling because certainly based on the People’s evidence
that that was the reason . . . the alleged perpetrators, including
Mr. Aguilar, traveled to the Pichardo residence was to confront
perhaps Diego Sparling, certainly not Mr. Pichardo. So how do
you rectify that or explain that away?
[The prosecutor]: Because the testimony, I believe, that
was presented was that Mr. Pichardo came to the aid of Diego
Sparling and he then became the focus of the defendants’ attack.
And as Detective Mendez testified, anyone who helps out a rival
17
gang member . . . or simply a good Samaritan, has to be dealt
with in the same manner and fashion.
“The court: All right. Again, I think that is a plausible
argument given the evidence in the case. Certainly another
plausible argument would be the simple assault upon Diego
Sparling, then perhaps a natural and probable consequence that
anyone who interferes with that attack would also become a
target as well. That is consistent with the expert’s testimony.
The People have elected to take Diego Sparling out of the
equation, just focus on the person that came to the rescue of
Diego Sparling as being then the intended assault target at that
point in time. . . .”
Counsel for Quintana did not wish to be heard on the
matter, stating, “I think the People have a right to pursue their
theory, however ridiculous it is.” Counsel for Gardner argued
that the People should not be allowed to change their theory of
the case after the previous mistrial and claim that the target
crime was the assault on Pichardo, rather than the assault on
Sparling. He additionally argued that the jury instruction
“should identify and define the target offense. And I think that
in this factual situation just identifying the target offense as an
assault is insufficient.” Neither the prosecutor nor counsel for
Quintana objected to modifying the jury instruction in this
manner.
The trial court stated: “Okay. I’m going to overrule like I
previously overruled your collateral estoppel argument with
respect to the People changing their underlying theory of liability
from the first trial to the second trial. I think they can pursue
the same theory of liability but pursue it in a different avenue
under the same doctrine of this accomplice liability instruction.
18
We will modify [CALCRIM No.] 403[,] however, consistent with
what the parties have settled upon and that will be element
No. 1 . . . . It will read the defendant is guilty of simple assault
upon Rene Pichardo. . . .”
The trial court instructed the jury pursuant to CALCRIM
No. 403 as modified: “Before you may decide whether a
defendant is guilty of murder, you must decide whether he is
guilty of simple assault. [¶] To prove that the defendant is guilty
of murder, the People must prove that:
“1. The defendant is guilty of simple assault upon Rene
Pichardo;
“2. During the commission of simple assault a coparticipant
in that simple assault committed the crime of
murder; [¶] AND [¶]
“3. Under all of the circumstances, a reasonable person in
the defendant’s position would have known that the commission
of the murder was a natural and probable consequence of the
commission of the simple assault. . . .”
Defendants claim that despite the prosecutor’s decision to
identify the assault on Pichardo as the target crime, “that is
definitely not the argument the prosecutor made to the jury. He
argued that [defendants’] target offense was the assault on
[Sparling] because he was a rival gang member, and [Pichardo]
was injured as a natural and probable consequence of assaulting
[Sparling].” Defendants cite portions of the prosecutor’s opening
statement and closing argument as supporting their claim.
In his opening statement, the prosecutor told the jury that
defendants arrived at Pichardo’s house with Aguilar, walked up
to Sparling, one of them yelled “Eastside Bolen,” and then “[t]hey
started beating up [Sparling], hitting him several times while in
19
the front yard. At some point [Pichardo] joined in to try to help
[Sparling] and the fight progressed. It went down [the] driveway
. . . and it went into the backyard.” The prosecutor continued
describing what happened, stating that “[w]hile the fight
progressed, all three of them in the backyard were attacking
[Pichardo].” At some point Aguilar left and was fighting with
Sparling, while the other fight with Pichardo continued.
The prosecutor also told the jury about the testimony they
could expect to hear from the gang expert, including “that if
someone disrespects you, that you have to take action. The
evidence will show that’s exactly what the defendants did. They
attacked Rene Pichardo, who was simply helping out someone
who was at his house that evening. . . . He paid the ultimate
price for it. The evidence will . . . show that these two men
directly participated in the reason that he was killed.”
Based on this statement, defendants argue on appeal that
“in [t]rial [t]wo, just as in [t]rial [o]ne, the prosecution’s theory
was (a) [defendants] assaulted [Sparling] and (b) assaulting
[Sparling] caused Rene Pichardo to be killed.” Broadly speaking,
this is correct. However, in trial one the jury was instructed that
it could find defendants guilty of murder if the murder was a
natural and probable consequence of the assault on Sparling. In
trial two, the jury was instructed that it could find them guilty if
they assaulted Pichardo when he came to Sparling’s aid, and the
murder was a natural and probable consequence of their assault
on Pichardo. More importantly, nothing in the prosecutor’s
opening statement told the jury it could find defendants guilty of
murdering Pichardo if the murder was a natural and probable
consequence of their initial assault on Sparling. The opening
20
statement did not contradict the trial court’s explanation of the
applicable law in CALCRIM No. 403.
Defendants contend the prosecution’s closing argument also
impermissibly focused on an assault on Sparling. They highlight
the prosecution’s statement that the jury should consider “what
the defendants did in this case, acting together as gang members,
attacking a rival gang member and then attacking Rene
Pichardo.” Later in the same closing, the prosecutor stated: “As
to [Sparling] being the aggressor, there is no evidence at all that
he was the one who started this fight. . . . [Gonzalez’s] testimony
is that all three of them, including defendants and Andrew
Aguilar, are the ones that rushed, yelled out East[s]ide Bolen . . .
and attacked [Sparling].” Defendants assert the prosecutor
doubled down on these improper references to the assault on
Sparling by stating in final rebuttal closing: “[Sparling] was the
person the defendants started hitting first. Before that attack,
[Eastside] Bolen Park was yelled out. [Pichardo] comes in to help
and then he’s attacked. Ladies and gentlemen, you can consider
all of that because under the theory of natural and probable and
considering the evidence as a whole, you are able to look at
everything that was done beforehand[,] what the defendants
knew, what type of lifestyle they had, what they knew about the
gang, how the gang treats rivals, how the gang deals with their
neighborhood and fear and respect.”
Defendants neglect to mention that immediately prior to
these statements, the prosecutor stated, “We have witnesses who
saw defendant Quintana hitting [Pichardo] repeatedly. Remove
[Sparling] out of the case because the target crime is the assault
on [Pichardo]. So there shouldn’t be any conversation of
[Sparling] at all.” Considering this introductory statement, it is
21
unlikely the jury would have concluded, in contradiction with the
trial court’s instruction pursuant to CALCRIM No. 403, that they
could convict defendants of the murder of Pichardo if they found
that murder to be a natural and probable consequence of the
initial assault on Sparling. Rather, the argument conveyed to the
jury that it consider the initial assault in determining whether
the murder was for the benefit of a criminal street gang.
Moreover, any confusion that may have been caused by the
prosecution’s closing argument’s necessary reference to Sparling’s
involvement in the events leading up to the altercation with
Pichardo was corrected by the jury instruction which expressly
stated that the prosecution had to prove Pichardo was the victim
of the target offense. On this record, there was no collateral
estoppel violation in allowing the prosecution to pursue charges
for murder against the two defendants based on an alternative
aiding and abetting theory from that pursued in the initial trial.
B. Penal Code Section 654
At oral argument, counsel for Quintana requested
permission to file a supplemental brief addressing the question
whether the second prosecution was barred by Penal Code
section 654, subdivision (a) (section 654), which provides: “An act
or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one
bars a prosecution for the same act or omission under any other.”
Quintana acknowledges that he did not specifically object
that the second prosecution for the murder of Pichardo was
22
barred by section 654, but he claims his objection “reiterated the
substance of that provision as well as one of its rationales.” He
cites no authority to suggest that his objection on collateral
estoppel grounds was sufficient to preserve a section 654 issue for
appeal, and the law is to the contrary. (People v. Jones (1998) 17
Cal.4th 279, 313).
In any event, the claim is without merit. Section 654 “bars
multiple prosecutions for the same act or omission where the
defendant has already been tried and acquitted, or convicted and
sentenced. [Citations.] This preclusion is primarily ‘a procedural
safeguard against harassment.’ [Citation.]” (People v. Davis
(2005) 36 Cal.4th 510, 557; see also Kellett v. Superior Court
(1966) 63 Cal.2d 822, 825.) The section “does not bar all
successive prosecutions, only those that follow an acquittal or a
conviction and sentence. [Citations.]” (In re R.L. (2009) 170
Cal.App.4th 1339, 1344; see Kellett, supra, at p. 827.)
Thus, section 654’s “proscription against multiple
prosecution does not apply where there is but one prosecution;
that is, a single criminal action. It prohibits only a subsequent
prosecution for the same act or omission which means the filing
and pressing of a new criminal action.” (Burris v. Superior Court
(1974) 43 Cal.App.3d 530, 539, citing People v. Seiterle (1963) 59
Cal.2d 703, 712 and People v. Tideman (1962) 57 Cal.2d 574, 584-
587; accord, People v. Berutko (1969) 71 Cal.2d 84, 95.)
Quintana cites People v. Witcraft (2011) 201 Cal.App.4th
659 for the principle that section 654 requires “that when ‘the
prosecution is or should be aware of more than one offense in
which the same act or course of conduct plays a significant part,
all such offenses must be prosecuted in a single proceeding unless
joinder is prohibited or severance is permitted for good cause.
23
Failure to unite all such offenses will result in a bar to
subsequent prosecution of any offense omitted if the initial
proceedings culminate in either acquittal or conviction and
sentence.’ [Citation.]” (Id. at p. 666, quoting Kellett v. Superior
Court, supra, 63 Cal.2d at p. 827.) Therefore, “‘if the evidence
needed to prove one offense necessarily supplies proof of the other
. . . the two offenses must be prosecuted together, in the interests
of preventing needless harassment and waste of public funds.’
[Citations.]” (Id. at p. 667.)
Quintana argues that because the basis of the prosecution’s
theory was that the murder of Pichardo was a natural and
probable consequence of the assault on Pichardo, “the
prosecution’s failure to litigate the assault against Pichardo in
the first trial precluded its being litigated in the second trial.”
The prosecution, however, did not charge defendants with a
separate assault on Pichardo in either trial; it retried the murder
charge on which no verdict had been returned. The jury’s
consideration of the assault on Pichardo as the target offense did
not run afoul of section 654. (Cf. People v. Jones, supra, 17
Cal.4th at p. 313 [jury’s consideration of uncharged criminal
activity as an aggravating factor at penalty phase did not violate
double jeopardy, as the defendant “was not tried for the prior
offense at all”].)
Here, defendants were retried for Pichardo’s murder after
the jury was unable to reach a verdict as to that charge. The
prosecution did not file a new criminal action after an acquittal,
and section 654 did not bar the retrial. (Kellett v. Superior Court,
supra, 63 Cal.2d at p. 827; Burris v. Superior Court, supra, 43
Cal.App.3d at p. 539.)
24
Defendants were not retried for the assault on Sparling, of
which they were acquitted. Section 654 therefore did not apply.
(People v. Jones, supra, 17 Cal.4th at p. 313.)
C. Exclusion of Evidence of the Previous Acquittal of
Aggravated Assault on Sparling
Defendants contend the trial court erred in excluding
evidence of their previous acquittal of aggravated assault on
Sparling, “an essential fact required for the prosecution to
present its theory of natural and probable consequences, i.e.[,]
that [Pichardo’s] murder was a natural and probable consequence
of an assault on [Sparling].” Defendants claim the evidence was
relevant and its exclusion violated their right to present a
defense.
Defendants’ contention rests on a faulty premise: that the
prosecution’s theory of the case was that defendants were guilty
of the murder of Pichardo as a natural and probable consequence
of the assault on Sparling. As discussed above, the prosecution’s
theory of the case—and the theory on which the jury was
instructed—was that defendants were guilty of the murder of
Pichardo as a natural and probable consequence of the assault on
Pichardo.
Evidence of defendants’ acquittal of aggravated assault on
Sparling was not relevant to any of the issues here: whether
defendants assaulted Pichardo and whether his murder was a
natural and probable consequence of that assault. Evidence of
the acquittal had no “tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) That a previous jury found
25
defendants not guilty of an aggravated assault on Sparling did
not tend to prove that defendants did not assault Pichardo.
Additionally, it must be recalled that defendants were
acquitted of the charge of assault on Sparling by means of force
likely to produce great bodily injury; the first jury was not asked
to consider whether they were guilty of simple assault.
Presenting evidence of the jury verdict from the first trial would
necessarily have required explaining to the jury the different
elements of simple assault as compared to aggravated assault.
These additional instructions likely would have been distracting
or confusing to the jury.
A criminal defendant’s constitutional right to present
evidence extends to “‘all relevant evidence of significant probative
value in his favor.’” (People v. Homick (2012) 55 Cal.4th 816,
865.) Because the evidence of the prior acquittal was not
relevant and may have been confusing, the trial court did not
abuse its discretion in excluding it, and defendants were not
deprived of their right to present a defense by its exclusion.
(People v. Thornton (2007) 41 Cal.4th 391, 444-445; People v.
Roberts (1992) 2 Cal.4th 271, 300-301 [“the due process clause
does not entirely strip a trial court of its power to exclude
evidence on grounds of irrelevance or potential confusion”].)
D. Instruction as to the Natural and Probable Consequences
Doctrine
Defendants contend the trial court here erred in using the
phrase “could have happened” to explain the natural and
probable consequences doctrine, thereby equating “foreseeable”
with “possible.” We conclude that the trial court’s explanation
was inaccurate, and we cannot conclude that the error was
26
harmless beyond a reasonable doubt, requiring reversal of the
guilty verdicts.
1. Proceedings Below
As previously stated, the trial court instructed the jury
pursuant to CALCRIM No. 403 that before it decided whether the
defendant was guilty of murder, it had to decide if he was guilty
of simple assault upon Pichardo. The prosecution was required
to prove, in addition to the simple assault, that “[d]uring the
commission of simple assault a co-participant in that simple
assault committed the crime of murder; [¶] AND [¶] Under all of
the circumstances, a reasonable person in the defendant’s
position would have known that the commission of the murder
was a natural and probable consequence of the commission of the
simple assault.”
The instruction further stated: “A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence. If the murder was
committed for a reason independent of the common plan to
commit the simple assault, then the commission of murder was
not a natural and probable consequence of simple assault.”
One of the jurors, Juror No. 11, had previously told the
court that he had to leave for a business trip on March 22. On
the morning of Thursday, March 21, in the midst of closing
arguments, Juror No. 11 sent the court a letter concerning his
need to leave for the business trip the following day and the
likelihood the trial would not be completed before then. In a
hearing to consider the juror’s concerns, the trial court
27
acknowledged “that this case did go beyond our original estimate
and certainly mine. And this certainly places you in jeopardy of
having this conflict. What I am willing to do if the parties are
willing is to stipulate that we can excuse you and replace you
with our final alternate.” Counsel were not willing to stipulate,
and Juror No. 11 agreed to participate in deliberations the
following day.
Deliberations commenced mid-afternoon on March 21.
Late on Friday afternoon, March 22, the jury sent a note to the
court stating that they were “at an impasse. [¶] For Angel
Quintana 9 guilty 3 not guilty[,] [¶] [f]or Corey Gardner 7 guilty 5
not guilty.” The court brought the jury in and asked questions to
the foreperson “regarding whether or not there is a reasonable
probability that this jury could reach a unanimous decision on
one or perhaps both of the defendants.”
After noting that the jury had been deliberating for only
one day and had not submitted any questions or requested any
read back of testimony, the court told counsel that “this case is
much too important just to . . . fold at the first impasse that is
communicated to the court. . . . I also am taking into
consideration, even if we replace [Juror] No. 11 with our
remaining alternate, given the numerical breakdown and the
impasse, it’s not going to be of much significance even if there is a
vote obviously rendered by a new alternate juror given the
position of the other jurors. So I don’t think that endangers Mr.
Quintana or Gardner in any way in terms of the court
reconstituting the jury against their interest. I don’t think that’s
a major issue, given what I’ve heard. But, again, one day of
deliberations is simply insufficient for any jury to throw in the
towel and just say we cannot reach a verdict. So that is what I’m
28
going to do and obviously it’s over the objections of both defense
counsel.”
The court decided not to declare a mistrial and to require
the jurors to continue deliberating with a replacement juror after
the weekend. On Monday, March 25, within an hour of the
replacement juror being substituted for Juror No. 11, the jury
sent the court several questions and a request for a read back of
certain testimony. The questions were: “(1) If both defendants
are guilty of aiding & abetting, can we find both defendants
guilty of 2nd degree murder without knowing who dealt the fatal
blows?
“(2) Further explain Natural & Probably [sic] Cause—
implied malice with intent to do fatal harm.
“(3) Please elaborate on [CALCRIM No.] 224
‘Circumstantial Evidence’ as a whole & the specifi[c]ally on the
paragraph that[] starts on 224 line 7.”
As to question number two, the trial court told counsel that
“what I plan on doing, is when they’re referring to a specific
instruction, I’ll reread the instruction, and then take a moment to
try to clarify what it means and do my best. [¶] But what I will
not do is incorporate any of the evidence in my explanation. Just
simply an explanation of the law, without any mention of the
facts before the jury. They have to decide those facts and simply
apply it to the law as I’m going to explain it.” Counsel for
Gardner, who was representing both defendants for purposes of
the response to the jury’s question, agreed with the court’s plan.
The court brought the jury back in and told them, “I think
the best way to approach this communication is to reread the law,
which I know you’ve read probably more than once, and then I’ll
do my best to perhaps clarify what these instructions mean.” The
29
court stated it was “going to go through the [CALCRIM] 400
series, aiding and abetting generally, aiding and abetting the
intended crime, and the natural and probable consequence
theory, which is a hybrid of aiding and abetting, but it still
pertains to people who help the actual perpetrator in committing
a crime.”
After rereading CALCRIM No. 400 on the general
principles involved in aiding and abetting, the trial court
elaborated: “Now, under some circumstances—and this kind of
leads you into natural and probable consequences—if [the]
evidence established that the aiding and abetting of one crime
which is the target crime, that is what I’m helping the
perpetrator commit, that person can only be found guilty of
another crime which was a non-target crime if that crime was
foreseeable, it could have happened under the circumstances,
given all you know about the case. It was foreseeable as
something not intended by the aider and abettor, but could have
happened because the aider and abettor at least intended that
target crime; that something else could have happened, given all
the circumstances of the case. Again, that’s natural and probable
consequence[s].” (Italics added.)
The trial court then discussed CALCRIM No. 401, about
aiding and abetting intended crimes. In connection with a
hypothetical scenario involving an intended liquor store robbery
in which money was also taken from a customer, the trial court
commented, “The question is, can I still be convicted of aiding
and abetting the robbery of the customer which I did not plan on
doing at all? I did not agree to that. I just wanted the loot in the
cash register, and that’s why I took the perpetrator there.
30
“Under the natural and probable consequences theory, a
jury would have to decide whether or not it was foreseeable that
the actual gunman who went into the liquor store might take the
opportunity to perhaps take other property from someone else
other than the liquor store owner just to get even more booty, so
to speak, more valuables, more fruit of that type of crime, if you
find [that] it was a natural and probable consequence that
committing a liquor store robbery might evolve to something even
more.
“It’s foreseeable that could happen, it’s objectively
reasonable that it could happen. Then I, being the getaway
driver, could be convicted of not only what I helped out in doing,
the liquor store robbery, but also the unintended crime, which
was the other robbery of a customer, even though I did not agree
to that, . . . that was not part of my intent.
“If it was possible, foreseeable. If it was a natural and
probable consequence, one that a reasonable person would know
is likely to happen if nothing unusual intervenes.
“In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the
evidence.”
The court continued by contrasting its hypothetical with
one in which the robber who entered the store proceeded to set
fire to the inventory. The court questioned: “could I, being the
wheel man of the liquor store robbery, be convicted of an arson, of
putting a match to the inventory in the back of the store? Well, is
that likely to happen? If you find that it’s not a natural and
probable consequence, then I could, as the getaway driver, . . . be
guilty of the robbery itself, but not of that unintended crime,
because it’s not a natural and probable consequence of my
31
conduct.” The court further explained “that’s just another
hypothetical kind of example to help you distinguish what might
be foreseeable in one situation and what may not be foreseeable
in another situation, given the same set of facts.”
The court then read CALCRIM No. 403, explaining the
terms used in the instruction. It ended with “the final element,
under all the circumstances, a reasonable person, objective, a
reasonable person in the defendant’s position would have known
that the commission of murder was a natural and probable
consequence of the commission of simple assault. By doing the
simple assault, under all the circumstances of the case, a person
in the defendant’s position, knowing everything that he knows, is
it foreseeable that the simple assault could escalate to the
ultimate crime of murder under all the circumstances of the case.
“And again, you have to understand what simple assault is.
Did a perpetrator or someone who aided and abetted the
perpetrator commit the simple assault, and did the simple
assault get out of hand, did it escalate to the crime of murder,
and was it foreseeable that that could have happened. And
again, you have to decide what the facts are of that particular
case.” (Italics added.)
After the questions were answered by the court, and a
witness’s testimony was read back, the jury continued
deliberating. The jury reached its verdicts about 3:30 p.m. that
afternoon.
2. Applicable Law and Analysis
The trial court “is under a general obligation to ‘clear up
any instructional confusion expressed by the jury,’ but ‘[w]here
. . . the original instructions are themselves full and complete, the
32
court has discretion . . . to determine what additional
explanations are sufficient to satisfy the jury’s request for
information.’ [Citations.]” (People v. Dykes (2009) 46 Cal.4th
731, 802.) However, where the trial court does give additional
explanations, those explanations must be legally correct. (See
People v. Giardino (2000) 82 Cal.App.4th 454, 467.) In
elaborating on instructions, “‘[C]omments diverging from the
standard are often risky.’” (Ibid., quoting People v. Beardslee
(1991) 53 Cal.3d 68, 97.)
Under the natural and probable consequences doctrine, an
aider and abettor is liable for any offense which is a reasonably
foreseeable consequence of the target offense. (People v. Smith
(2014) 60 Cal.4th 603, 613-614.) “A nontarget offense is a
‘“natural and probable consequence”’ of the target offense if,
judged objectively, the additional offense was reasonably
foreseeable. [Citation.] The inquiry does not depend on whether
the aider and abettor actually foresaw the nontarget offense.
[Citation.] Rather, liability ‘“is measured by whether a
reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.”’
[Citation.]” (People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
Reasonable foreseeability requires something more than that the
nontarget offense “could have happened.” It requires a finding
that the result was one that “a reasonable person would know is
likely to happen if nothing unusual intervenes.” (CALCRIM
No. 403; People v. Prettyman (2006) 14 Cal.4th 248, 260 [doctrine
is “based on the recognition that ‘aiders and abettors should be
responsible for the criminal harms they have naturally, probably
and foreseeably put in motion’”])
33
The trial court’s repeated instruction that a natural and
probable consequence was one that “could have happened, given
all the circumstances of the case” omitted the requirement that
the consequence must have been reasonably foreseeable, and
likely to have happened, and not merely possible. It thus was
erroneous.
Error in instructing the jury as to the elements of the
natural and probable consequences doctrine is reviewed under
the Chapman10 harmless beyond a reasonable doubt standard.
(See People v. Prettyman, supra, 14 Cal.4th at pp. 271-272; People
v. Riva (2003) 112 Cal.App.4th 981, 997-998 & fn. 58.) Here, we
cannot conclude that the error was harmless beyond a reasonable
doubt.
This was clearly a close case. The jury was deadlocked 9 to
3 and 7 to 5 on Friday afternoon, after more than a day of
deliberations. One juror was replaced on Monday morning, but,
as the trial court observed, that would not be enough to break the
deadlock given the jurors’ respective positions as of Friday
afternoon. One hour after the alternate juror was empaneled, the
jury requested a read back of certain testimony and further
instruction, at which time the trial court provided the erroneous
instruction on natural and probable consequences. The jury was
able to reach its verdicts that afternoon. That the jury was
deadlocked as to both defendants, received the additional
instructions, and was able to reach its verdicts shortly thereafter
suggests that those verdicts were based on the erroneous
instructions. (See People v. Brown (2016) 247 Cal.App.4th 211,

10 Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824,
17 L.Ed.2d 705].
34
226.) Moreover, the evidence was extremely conflicted in this
case, with no eyewitness to the stabbing or retrieval of the
murder weapon, disputed testimony as to whether Pichardo at
some point had the upper hand in the struggle, and
uncontroverted evidence that both defendants were stabbed by an
unknown person. Therefore, instructing the jury in this case that
a natural and probable consequence was one that could have
happened was not harmless beyond a reasonable doubt. (Id. at
p. 227.)11

11 As the People point out, neither defendant objected to the
trial court’s response to the jury’s question. Nevertheless, if the
instruction affected defendants’ substantial rights, we may
review the claim of instructional error even though defendants
did not object to the instruction in the trial court. (Pen. Code,
§ 1259; People v. Rodrigues (1994) 8 Cal.4th 1060, 1142, 1192;
People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1233.) Here,
the instruction clearly affected defendants’ substantial rights.
35
DISPOSITION
The judgments are reversed.
KEENY, J.*
We concur:
PERLUSS, P. J.
ZELON, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.