PEOPLE v. RONALD ENRIQUE YBARRA

Filed 4/18/07 Opinion Following Rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEALS from judgments of the Superior Court of Fresno County. Gary S. Austin, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Enrique Ybarra.

Sharon Giannetta Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Hugo Cernas.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

Gang warfare shootings in Fresno one night led to verdicts finding two members of the Floradora Street Bulldogs criminal street gang Hugo Cernas and Ronald Enrique Ybarra guilty, inter alia, of the first degree special circumstances murder of a man who was not a gang member and the willful, deliberate, and premeditated attempted murders of a pregnant woman and another man, neither of whom was a gang member, either. Cernas and Ybarra raise numerous issues on appeal. We will vacate both sentences in toto and remand to the trial court with directions but otherwise will affirm both judgments.

FACTUAL HISTORY

On October 5, 2001,^[1]shortly after 7:00 p.m., someone in a BMW yelled out to Ybarra, Whats up Sur? Ybarra yelled back, Bulldog. From inside the BMW, someone fired several shots at him from a handgun at point blank range but missed him. Sur is short for Sureos, a rival criminal street gang.

Shortly after 9:30 that evening, Ybarra, Cernas, and another male, all armed with guns, stepped out of a large car between a gray and a blue in color, walked toward a house that was a perceived Sureo location where Gilbert Medrano, his pregnant niece Mercedes Lpez, and his friend lvaro Romero were sitting outside talking, and opened fire. Ybarras father owns a sky blue Lincoln Town Car.

Bullets struck Medrano in the face, Lpez in the leg and stomach, and Romero twice in the back and once in the hip. Medrano survived with a bullet lodged between his cervical vertebrae. Lpez, who had a Caesarian section and a hysterectomy, and her daughter, who was born a month prematurely with a scratch mark from a bullet on her back, both survived. Romero died at the scene. A gang expert characterized both shootings as gang warfare between Bulldogs and Sureos.

PROCEDURAL HISTORY

In count 1, a jury found Cernas and Ybarra guilty of the first degree murder ( 187, subd. (a)^[2]) of Medrano, found true as to each the allegations of intentional murder by an active criminal street gang member ( 190.2, subd. (a)(22)), personal use of a firearm ( 12022.5, subd. (a)(1)), and commission of the crime for the benefit of a criminal street gang ( 186.22, subd. (b)), and found true as to Cernas only the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury or death ( 12022.53, subd. (d)).

In counts 2 and 3, the jury found Cernas and Ybarra guilty of the willful, deliberate, and premeditated attempted murders ( 187, subd. (a), 664) of Lpez and Medrano, respectively, and found true as to each the allegations of personal use of a firearm ( 12022.5, subd. (a)(1)) and commission of the crime for the benefit of a criminal street gang ( 186.22, subd. (b)). In count 4, the jury found Cernas and Ybarra guilty of active participation in a criminal street gang. ( 186.22, subd. (a).)

On count 1, the trial court sentenced Cernas to a term of life without possibility of parole (LWOP) for intentional murder by an active criminal street gang member ( 187, subd. (a), 190.2, subd. (a)(22)) and to a consecutive term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury or death ( 12022.53, subd. (d)) and imposed and stayed a consecutive aggravated term of 10 years for personal use of a firearm ( 12022.5, subd. (a)(1)) and a consecutive term of 10 years for commission of a violent felony by a criminal street gang member ( 186.22, subd. (b)(1)(C), 654). On counts 2 and 3, the trial court sentenced him in each count to a consecutive term of life with possibility of parole for willful, deliberate, and premeditated attempted murder ( 187, subd. (a), 664) without parole until after service of a minimum of 15 years ( 186.22, subd. (b)(5)) and to a consecutive aggravated term of 10 years for personal use of a firearm ( 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member ( 186.22, subd. (b)(1)(C), 654). On count 4, the trial court imposed and stayed a consecutive aggravated term of 3 years for active participation in a criminal street gang. ( 186.22, subd. (a), 654.) In addition, the trial court, inter alia, imposed a $10,000 restitution fine ( 1202.4) and a $10,000 parole revocation fine ( 1202.45) with a stay on the latter fine pending parole revocation.

On count 1, the trial court sentenced Ybarra to a term of life without possibility of parole (LWOP) for intentional murder by an active criminal street gang member ( 187, subd. (a), 190.2, subd. (a)(22)) and to a consecutive aggravated term of 10 years for personal use of a firearm ( 654, 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member ( 186.22, subd. (b)(1)(C), 654). On counts 2 and 3, the trial court sentenced him in each count to a consecutive term of life with possibility of parole for willful, deliberate, and premeditated attempted murder ( 187, subd. (a), 664) without parole until after service of a minimum of 15 years ( 186.22, subd. (b)(5)) and to a consecutive aggravated term of 10 years for personal use of a firearm ( 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member ( 186.22, subd. (b)(1)(C), 654). On count 4, the trial court imposed and stayed a consecutive aggravated term of 3 years for active participation in a criminal street gang. ( 186.22, subd. (a), 654.) In addition, the trial court, inter alia, imposed a $10,000 restitution fine ( 1202.4) and a $10,000 parole revocation fine ( 1202.45) with a stay on the latter fine pending parole revocation.

ISSUES ON APPEAL

Cernas and Ybarra argue two evidentiary issues on appeal. (1) The presence within sight of the jury of a section 868.5 support person during the testimony of three prosecution witnesses violated the due process clause. (2) The exclusion of evidence of Lpezs misdemeanor welfare fraud violated the confrontation and due process clauses. Additionally, (3) Ybarra argues, on the premise that the photographic lineups were impermissibly suggestive, that his attorneys failure to object to pretrial identifications and an identification at trial constituted ineffective assistance of counsel.

Ybarra argues two instructional issues on appeal. (4) With reference to the criminal street gang crime, the trial courts failure to instruct sua sponte to view accomplice testimony with caution violated the due process clause. (5) The instruction allowing the jury to find true for an aider and abettor the special circumstance of intentional murder by an active criminal street gang member violated the due process clause. Additionally, (6) Cernas and Ybarra argue that one jurors dissuasion of another from asking the trial court for discharge as a holdout juror constituted prejudicial juror misconduct.

Cernas argues two sentencing issues on appeal. (7) The trial courts lack of awareness of sentencing discretion to impose on the special circumstance first degree murder a youthful offender 25-to-life term instead of an LWOP term requires a remand for resentencing. (8) Since the trial court imposed one firearm enhancement personal and intentional discharge of a firearm proximately causing great bodily injury or death and imposed and stayed another firearm enhancement personal use of a firearm on the first degree murder the latter must be stricken.

Together, Cernas and Ybarra argue three sentencing issues on appeal. (9) On the premise that the criminal street gang crime is a lesser included offense of the functional equivalent of the single greater crime of first degree murder with a criminal street gang enhancement, the sentence on the criminal street gang crime must be stayed. (10) The imposition of aggravated terms without jury findings on circumstances in aggravation and of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt. (11) Since neither has a sentence that includes a period of parole, the $10,000 parole revocation fines must be stricken.

DISCUSSION

1. Witness Support Person

Cernas and Ybarra argue that the presence within sight of the jury of a section 868.5 support person during the testimony of three prosecution witnesses Lpez, Medrano, and Medranos wife Mara (Mara) violated the due process clause.^[3] The Attorney General argues the contrary.

Section 868.5 entitles a prosecuting witness in, inter alia, a murder case to the attendance at trial of one or two support persons of his or her own choosing while testifying. Only one support person may accompany the witness to the witness stand, but two are permitted in the courtroom at the same time. (Ibid.) In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. (Ibid.) Case law uniformly rejects arguments that section 868.5 is inherently prejudicial, erodes the presumption of innocence, and impermissibly encroaches on confrontation clause and due process clause rights. (See, e.g., People v. Johns (1997) 56 Cal.App.4th 550, 553-556; People v. Adams (1993) 19 Cal.App.4th 412, 435-444; People v. Patten (1992) 9 Cal.App.4th 1718, 1725-1733 (Patten).)

So Cernas and Ybarra argue that section 868.5 as applied here violated the due process clause. On the indisputable premise that due process requires affording the accused a fair trial by an impartial jury free from outside influences (Sheppard v. Maxwell (1966) 384 U.S. 333), Cernas and Ybarra analogize the support persons role at trial here to prohibitions of routinely using shackles visible to the jury (Deck v. Missouri (2005) 544 U.S. 622 (Deck)), requiring the accused to stand trial wearing identifiable prison clothing visible to the jury (Estelle v. Williams (1976) 425 U.S. 501 (Williams), allowing spectators to wear buttons visible to the jury with photographs of the deceased at a murder trial (Musladin v. Lamarque (9th Cir. 2005) 427 F.3d 653 (Musladin I)), and allowing women spectators to wear Women Against Rape buttons visible to the jury at a sexual assault trial (Norris v. Risley (9th Cir. 1990) 918 F.2d 828 (Norris)).

Additionally, on the premise that the state may have a compelling interest in protecting the well-being of certain witnesses but that the protections given must be balanced against opposing considerations affecting the defendant (Patten, supra, 9 Cal.App.4th at p. 1726), Cernas and Ybarra argue that important individualized considerations show a due process violation on the record here. As we noted in Patten, a limitless list of possibilities that might generate an improper influence include the relationship of the support person to the victim-witness, the location of the support person in relation to victim-witness, and whether the support person does anything that the jury could see that might interject an influence on the victim-witness or the jury such as crying, nodding the head, hand motions, etc. (Id. at pp. 1731-1732.)

First, two cases on which Cernas and Ybarra rely are no longer good law. After the briefing here was complete, the United States Supreme Court overruled Musladin I and Norris. (Carey v. Musladin (2006) __ U.S. __-__ [166 L.Ed.2d 482, 487-489; 127 S.Ct. 649, 652-654] (Musladin II).) In both cases, the Ninth Circuit had found that the state court rulings at issue were contrary to clear United States Supreme Court precedent, but Musladin II disclaimed federal habeas corpus jurisdiction on the ground that the high court had never established a test for inherent prejudice applicable to spectator courtroom conduct. (Id.; see 28 U.S.C. 2254, subd. (d)(1).)

Second, the record shows that the support person was a victim advocate, not a relative, as in Patten, whose possible influence on the jury by her presence as a support person was minimal since the jury was already well aware of her sympathy for [the victim-witness]. (Patten, supra, 9 Cal.App.4th at p. 1731.) Here, no one identified the support person to the jury as a victim advocate, as a government employee, as a relative, or in any other way. Since two of the three witnesses were husband and wife, the third was a friend, and the support person and all three witnesses were Hispanic, inferences, if any, that the jury might have drawn about her identity and relationship to the witnesses are entirely speculative.

Third, nothing in the record shows, or even intimates, that the support person did anything that the jury could see that might interject an influence on the victim-witness or the jury. (Patten, supra, 9 Cal.App.4th at p. 1732.) To the contrary, the record shows that the trial court admonished the support person, out of the presence of the jury, not to prompt, sway or influence the witness in any way, told her that her presence is only meant to be there for moral support, and cautioned her not to be an aid to the witness in any other way, to which she replied, I understand. Likewise, before Lpez, Medrano, or Mara testified, the record shows that the trial court informed the jury of the limited purpose of her presence:

The law provides that people who wish to provide if a witness wishes a moral support person to be in the courtroom at the time they testify, that is provided for by code. Ms. Lpez has asked for that, and we also, I should tell you, inform and instruct persons who do come in to provide support, moral support, they cannot in any way prompt, influence or sway the witnesss testimony in any way. So thats what that person is there for.

Fourth, the record shows that the support person was somewhere behind Lpez during her testimony, somewhere next to Medrano during his testimony, and with no specificity at all somewhere in court during Maras testimony. In Patten, where the support person wassitting unidentified in the public section of the courtroom, [where] the influence would be minimal, if any, we mused that the closer the support person is located to the victim-witness, the higher the risk the jury might be influenced. (Patten, supra, 9 Cal.App.4th at p. 1732.) Unlike other courtroom practices condemned in the past, such as prison clothing or shackles and gags, however, there is nothing about a [support] person sitting quietly to the side of a witness which is particularly distracting or likely to arouse intense feeling among jurors for a witness or against a defendant. (Id. at p. 1731, quoting Stanger v. State (Ind.Ct.App. 1989) 545 N.E.2d 1105, 1114, overruled on another ground by Smith v. State (Ind. 1997) 689 N.E.2d 1238, 1246, fn. 11.)

As the courtroom practices that Deck and Williams condemned are blatantly dissimilar to the inconsequentiality of the support persons role at trial here, so the congruence of the in-court identifications with the pretrial identifications here lays bare the insignificance of her presence at trial within sight of the jury. On that record, claims by Cernas and Ybarra of hesitancies and inconsistencies in the pretrial identifications go to the weight of the evidence but not to the issue of the support persons presence at trial. One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient. (People v. Johnson (1988) 47 Cal.3d 576, 591, abrogated on another ground by People v. Reyes (1998) 19 Cal.4th 743, 752-754, as stated by People v. Hunter (2006) 140 Cal.App.4th 1147, 1153, fn. 2.) Cernas and Ybarra fall short of discharging that burden.^[4]

2. Impeachment Evidence

Cernas and Ybarra argue that the exclusion of evidence of Lpezs misdemeanor welfare fraud violated the confrontation and due process clauses. The Attorney General argues the contrary.

After Lpez took the stand, Cernas requested that the trial court admit evidence to impeach her testimony with acts of welfare fraud that led to her entering a misdemeanor plea, attending a class, and making restitution and, ultimately, to the trial courts dismissing the charge against her.^[5] Noting that she suffered no conviction, that she had no perception of any benefit for testifying, and that the trial court preferred to generally deny admissibility of Wheeler[^[6]]evidence because it tries a case within a case, the trial court denied the request. By so ruling, Cernas and Ybarra argue, the trial court effectively substituted its judgment for that of the California Supreme Court, which held in [Wheeler, which discusses Evidence Code section 787 at length,] that misdemeanor acts of moral turpitude are admissible for impeachment, subject to a trial courts exercise of discretion under Evidence Code section 352. Cernas and Ybarra argue that the trial court appears to have preferred Evidence Code section 787, which [Wheeler] held no longer precludes the use of relevant misdemeanor conduct for impeachment in criminal proceedings.^[7]

In ruling on an Evidence Code 352 objection, the trial court need neither expressly weigh prejudicial effect against probative value nor expressly announce compliance with the statute. (People v. Mendoza(2000) 24 Cal.4th 130, 178.) The trial courts ruling, which followed hard on the heels of a colloquy among court and counsel about Evidence Code section 352, shows the requisite understanding of and compliance with the statute (see People v. Riel (2000) 22 Cal.4th 1153, 1187-1188):

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352; italics added.)

The trial court retains wide latitude to restrict cross-examination of an adverse witness on Evidence Code section 352 grounds without running afoul of the confrontation clause. (People v. Harris (1989) 47 Cal.3d 1047, 1090-1091, disapproved on another ground in People v. Wheeler, supra, 4 Cal.4th at p. 299, fn. 10; see generally Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) That is consistent with the trial courts statutory duty to exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth as possible. (Evid. Code, 765, subd. (a).) The law entrusts the trial court with the general responsibility to exercise reasonable control over the proceedings:

It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. ( 1044.)

On appeal, an Evidence Code section 352 ruling is subject to the deferential abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Only if the record shows an exercise of discretion in an arbitrary, capricious, or patently absurd manner that caused a manifest miscarriage of justice will an Evidence Code section 352 ruling be overturned. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Here, Medrano and Mara identified Cernas and Ybarra at trial as perpetrators. Lpez identified Cernas, but not Ybarra. On the key issue of identity, on which Cernas and Ybarra focus, Lpezs testimony with reference to Cernas was cumulative to Medranos and Maras and with reference to Ybarra was tangential in comparison with both Medranos and Maras. That record precludes Cernas and Ybarra from making the requisite showing not only for us to overturn the trial courts ruling on the basis of Evidence Code section 352 but also for us to discern the fundamental lack of fairness necessarily implicit in any violation of the due process clause.^[8] (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920.) Since trial courts traditionally retain the intrinsic power in the interests of orderly procedure and avoidance of prejudice to control the admission of evidence through the exercise of discretion, as a general matter the rules of evidence do not impermissibly infringe on an accuseds constitutional rights. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) That is so here.

3. Photographic Lineups

On the premise that the photographic lineups were impermissibly suggestive, Ybarra argues that his attorneys failure to object to pretrial identifications and an identification at trial constituted ineffective assistance of counsel. The Attorney General disputes the premise and argues the contrary.

Hours after he was shot, Medrano looked at a six-pack photographic lineup that a detective showed him at the hospital. He had a tube down his throat, his face was very swollen, and he could not speak, but he was coherent and responsive. Asked if he could identify anyone in the lineup as one of his assailants, he responded affirmatively by moving his head up and down, by writing kinda on a piece of paper, and by pointing to Ybarras photograph in position 2.

At the hospital two days later, the detective showed Medrano a lineup different in two respects from the one before. First, Ybarras photograph, though in the same position as before, was newer than the one in the previous lineup. Second, the newer photograph used to show a Bulldogs gang tattoo on Ybarras forehead, so the detective obliterated with dark ink that portion of his head and the identical portions of the other five heads. Medrano pointed to Ybarras photograph in position 2 again and said that this person looked like the person who was holding the shotgun.

An appellate court will set aside convictions based on eyewitness identification at trial following a pretrial identification by photograph only if the pretrial procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384.) The standard of independent review applies to a trial courts ruling that a pretrial identification procedure was not impermissibly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)

The Attorney General characterizes the photographs in both lineups as showing what appear to be young male Hispanics who were similar in appearance, age, and [the] physical characteristics of shaved heads, heavy builds, and some facial hair. We agree. Where photographs in a lineup are of males of the same ethnicity and of generally of the same age, complexion, and build, and generally resembling each other, and where the accuseds photograph did not stand out, and the identification procedure was sufficiently neutral, the lineup is not impermissibly suggestive. (People v. Johnson(1992) 3 Cal.4th 1183, 1208, 1214, 1217; see People v. Gordon (1990) 50 Cal.3d 1223, 1243, disapproved on another ground by People v. Edwards (1991) 54 Cal.3d 787, 834-835.) The record belies Ybarras argument that showing Medrano a second lineup two days after the first lineup with a different photograph of Ybarra but with all of the same decoys that he had already rejected telegraphed to [him] that Ybarra was the suspect they wanted him to positively identify. Since our independent review of the record persuades us that Ybarra fails to make the requisite showing on appeal that the photographic lineups were impermissibly suggestive (see People v. Kennedy, supra, 36 Cal.4th at p. 608), Ybarras attorney had no duty to object to the photographic lineups or to the in-court identification, so for want of a valid premise we reject his ineffective assistance of counsel argument (see People v. Anderson, supra, 25 Cal.4th at p. 587; Civ. Code, 3532).

4. Accomplice Testimony Instruction

Ybarra argues with reference to the criminal street gang crime that the trial courts failure to instruct sua sponte to view accomplice testimony with caution violated the due process clause. The Attorney General argues the contrary.

Some preliminary comments about statutory construction are in order. The evidence at issue here is not accomplice testimony but prior inconsistent statements of accomplices in the testimony of a homicide detective, so section 1111, on which Ybarra relies, is facially inapplicable:

A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111; italics added.)

Nonetheless, the Supreme Court has invoked the basic principle that legislative intent prevails over literal construction to hold that an accomplices prior inconsistent statement is testimony within the scope of section 1111 (People v. Belton (1979) 23 Cal.3d 516, 526):

When it enacted section 1111 in 1872, the Legislature could not have envisioned the admissibility of evidence of an accomplices out-of-court statement for any purpose other than to attack the credibility of the accomplice as a witness. However, when the Legislature did enlarge the purposes for which such evidence could be admitted with the enactment of Evidence Code section 1235[^[9]], it neglected, through apparent oversight, to substitute a more inclusive word for the term testimony so that section 1111 might clearly be applicable to this new form of accomplice evidence.

So section 1111 applies to an accomplices out-of-court statements when such statements are used as substantive evidence of guilt. (People v. Andrews (1989) 49 Cal.3d 200, 214, disapproved on another ground by People v. Trevino (2001) 26 Cal.4th 237, 243-244.) Since the parties agree, and we concur, that the prosecutor used as substantive evidence of guilt the prior inconsistent statements of two Floradora gang members, Jos Pez and Robert Tunchez, whom Ybarra characterizes as his accomplices, the trial court had a sua sponte to instruct the jury to view those statements with caution if and only if Pez and Tunchez were liable to prosecution for the identical offense charged against [Ybarra]. (People v. Guian (1998) 18 Cal.4th 558, 579, fn. 1; see, e.g., CALJIC No. 3.18.)

The evidentiary foundation of Ybarras argument is clear. His father testified that Ybarra came home sometime after 7:00 p.m. on October 5 and stayed home for the entire evening. Tunchez testified that someone fired shots in his direction from a car one night but that he did not remember if Ybarra was with him. He also testified that he pled guilty to assault with a deadly weapon after a different incident involving gunfire from a car in which he alternately admitted and denied he was present with Cernas and Ybarra.

Pez testified that he and Cernas met at Ral Ortzs house at around 5:00 or 6:00 p.m. on October 5, went out and stole a pickup truck, and drove back to Ortzs house, that when he and Ortz went out to buy marijuana Cernas was at Ortzs house, and that he and Ortz were stopped on foot and Ortz was cited by the police for possession at around 9:50 p.m. Pez also testified that he did not remember telling detectives that Ybarra was at Ortzs house that night.

A homicide detective testified to pretrial statements by both Pez and Tunchez. She testified that Tunchez told her that he was with Ybarra when someone fired shots from a car and that he and Ybarra hung out afterward at Ortzs house with other gang members. She testified that Pez told her that Ybarra was at Ortzs house with him and other gang members at around 9:00 or 10:00 p.m. on October 5.

With reference to the law, Ybarra argues, on the premise that his fellow gang members Pez and Tunchez were accomplices within the meaning of section 1111, that the court had a sua sponte duty to instruct the jury on the rules governing accomplice testimony and statements. The Attorney General counters that there was no evidence to suggest that Pez or Tunchez aided [Ybarra] in the commission of the charged offenses. Ybarra replies that it does not matter that Pez and Tunchez were liable for prosecution based on criminal acts different from those alleged against [him] and cites People v. Felton (2004) 122 Cal.App.4th 260 for the proposition that under section 1111 accomplice is not synonymous with aider and abettor; a perpetrator can be an accomplice. (Id. at p. 269.) On the record here, Ybarras parsing of the statute yields nothing but a distinction without a difference.

By statutory definition, Pez and Tunchez were Ybarras accomplices if and only if they were liable to prosecution for the identical offense charged against [him] in the cause in which the testimony of the accomplice is given. ( 1111.) If they were his accomplices, then the issue whether they were perpetrators or aiders and abettors is irrelevant. (People v. Felton, supra, 122 Cal.App.4th at p. 269.) Although Ybarra argues that the evidence established that both Pez and Tunchez engaged in felonious conduct while gang members, the record nonetheless lacks the evidence of each and every element of either Pezs or Tunchezs active participation in a criminal street gang necessary to characterize the testimony of either as accomplice testimony. (See, e.g., People v. Robles (2000) 23 Cal.4th 1106, 1115; People v. Schoppe-Rio (2006) 140 Cal.App.4th 1370, 1380; 186.22, subd. (a)^[10].) So the trial court had no sua sponte duty to instruct the jury to view their testimony with caution.

5. Special Circumstance for Aider and Abettor

Ybarra argues that the instruction allowing the jury to find true for an aider and abettor the special circumstance of intentional murder by an active criminal street gang member violated the due process clause. The Attorney General argues the contrary.

In the first degree murder count, the jury made some identical findings. The jury found both Cernas and Ybarra guilty of first degree murder and found true as to both the special circumstance allegation of intentional murder by an active criminal street gang member (intentional murder allegation). ( 190.2, subd. (a)(22).) For the intentional murder allegation to apply, the authorizing statute requires that the defendant intentionally killed the victim:

(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [] [] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang. ( 190.2, subd. (a)(22); italics added.)

From the statutes use of the active voice (intentionally killed the victim), not the passive voice (the victim was killed), and use of a form of the verb kill, not a form of the verb murder, Ybarra infers that the intentional murder allegation applies only when the defendant is the actual killer. To the contrary, the authorizing statute authorizes the allegation even if the defendant is not the actual killer:

Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4. ( 190.2, subd. (c); italics added.)

In the first degree murder count, the jury made some dissimilar findings, too. The jury found true as to Cernas, but found not true as to Ybarra, the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury or death (firearm allegation). ( 12022.53, subd. (d).^[11]) From those findings, Ybarra infers that he was not the actual killer and that CALJIC No. 8.80.1 incorrectly allowed the jury to find true as to him the intentional murder allegation. Yet CALJIC No. 8.80.1 informed the jury, inter alia, as follows:

However, if you find that a defendant was not the actual killer of a human being or if you are unable to decide whether the defendant was the actual killer or an aider and a bitter [sic], you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested or assisted any actor during the commission of the murder in the first degree. (CALJIC No. 8.80.1 (italics added.)

In short, by finding both Cernas and Ybarra guilty of first degree murder, by finding true as to Cernas and Ybarra the intentional murder allegation, and by finding true as to Cernas but not true as to Ybarra the firearm allegation, the jury found that both Cernas and Ybarra had the intent to kill, that Cernas was the actor who intentionally killed the victim, and that Ybarra was the aider and abettor who intentionally killed the victim. Since neither the statutes nor the instruction that Ybarra parses are ambiguous, no judicial construction is necessary. (People v. Johnson (2002) 28 Cal.4th 240, 244.) One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient. (People v. Johnson, supra, 47 Cal.3d at p. 591.) Ybarra fails to discharge his burden.

Story continued as Part II .

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^[1]All later references to dates are to 2001 unless otherwise noted.

^[2]All statutory references are to the Penal Code unless otherwise noted.

^[3]For brevity and clarity, we refer to Medranos wife Mara solely by her first name. No disrespect is intended.

^[4]The law neither does nor requires idle acts (Civ. Code, 3532), and an attorney has no duty to make a futile request (People v. Anderson (2001) 25 Cal.4th 543, 587), so we reject out of hand Cernass and Ybarras concomitant ineffective assistance of counsel argument for failure to object.

^[5]Acknowledging he did not join in Cernass request at trial, Ybarra argues he had no duty to do so since the trial courts denial of Cernass request invoked the rule that the law does not require futile rituals to preserve a claim for appeal. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 820.) Without adjudicating his invocation of that rule, we deem our holding equally applicable to him and reject his concomitant ineffective assistance of counsel argument out of hand.

^[6]People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), superseded by statute on another point as stated by People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460.

^[7]With no citation to the record, Cernas and Ybarra complain about the trial courts comments on another day about that ruling. That violates the rule of court that requires [e]ach brief to [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 14(a)(1)(C) (rule 14(a)(1)(C)).) We interpret that casual treatment as reflecting a lack of reliance on that aspect of their argument, which we have no duty to consider. (In re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7; In re David L. (1991) 234 Cal.App.3d 1655, 1661.) Since Cernass and Ybarras violation of rule 14(a)(1)(C) likewise denies the Attorney General the necessary citation to the record, he understandably does not address that aspect of their argument, either.

^[8]So we reject out of hand Cernass and Ybarras concomitant ineffective assistance of counsel argument for failure to object on constitutional grounds. (See People v. Anderson, supra, 25 Cal.4th at p. 587; Civ. Code,  3532.)

^[9]Evidence Code section 1235 provides: Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

^[10]Section 186.22, subdivision (a) provides: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (Italics added.)

^[11]Section 12022.53, subdivision (a)(1) provides: (a) This section applies to the following felonies: [] (1) Section 187 (murder). Section 12022.53, subdivision (d) provides: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.