P. v. Tamez

Filed 10/17/07 P. v. Tamez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendants David Tamez, Ivan Gonzalez, and Ronald Bray were jointly tried and convicted for an attack upon three men that left one man dead and the others seriously injured. Defendants, wearing hooded sweaters and bandanas to conceal their faces, descended upon an apartment where they stabbed Salvador Figueroa to death, stabbed Jose Sanchez a dozen times, and battered Salvador Betancourt Ceja with a nunchaku that broke his nose. Defendants are serving indeterminate life terms in prison for murder, attempted murder, assault with a deadly weapon, burglary, and street gang participation. They separately raise numerous challenges on appeal. We affirm the judgments in all respects but one. We are compelled to strike a sentencing enhancement for personal infliction of great bodily injury because there is insufficient evidence to establish who, among the three defendants, applied direct force to Sanchez. (Pen. Code,  12022.7, subd. (a) (all further section references are to this code, except as noted).)

I. facts[1]

The murder victim, Salvador Figueroa, shared a Cloverdale apartment with his brother and three other men, including one of the surviving victims, Salvador Betancourt Ceja.[2] The other surviving victim, Jose Sanchez, was a friend who often visited the apartment.

A. History of hostilities between the murder victim and defendant Gonzalez

On June 30, 2001, Figueroa and defendant Gonzalez attended a wedding. Animosity arose between Figueroa and Gonzalez. Gonzalez was reportedly looking for a fight: he made several hand gestures at Figueroa, said things, then came up very close and made a stabbing gesture by moving his closed fist with knuckles toward the floor toward Figueroas abdomen as if [Gonzalez] was going to hit [Figueroa] with something in the stomach. Figueroas uncle, Marco Osequera, pushed defendant Gonzalez on the shoulder and said [l]ets step outside. Gonzalez asked why, and everything settled down. No physical fight occurred.

Defendant Gonzalez and Osequera did have a fight a couple months later, on August 19, 2001. Osequera was socializing and drinking beer at the Cloverdale apartment complex with about four people, including his nephew Figueroa. Defendant Gonzalez arrived with a friend to visit an occupant of one of the apartment units. Osequera was angry because Gonzalez had previously brought a drug buyer to Figueroas apartment who turned out to be a police informant. The informant made controlled drug buys that had led to a police search of Figueroas apartment ten days earlier. Osequera, referring to the person responsible for bringing the police informant, asked Gonzalez [w]as it you? and Gonzalez responded yes.

Osequera threw Gonzalez to the ground, and the men started punching each other. Gonzalezs friend separated the men, and Osequera backed away. Gonzalez jumped at Osequera, and the young men in the drinking party, which included Figueroa, chased Gonzalez and threw bottles at him. A bottle struck and cut Gonzalezs head. Gonzalez and his friend escaped in a car driven by Gonzalezs girlfriend. According to his girlfriend, defendant Gonzalez was angry and wanted to go back to the apartment complex. Gonzalez stopped at his friends house, where the friend grabbed a bat and a couple kitchen knives. The friend said the weapons were his idea, and were just for protection against further attack. Neither Gonzalez nor his friend went back to Figueroas apartment that night. Gonzalez and his girlfriend became embroiled in an argument because she wanted him to go to a hospital for his head injury, and Gonzalez took her car and drove off alone.

B. Events leading up to the murder

Defendant Gonzalez was friends with defendants David Tamez and Ronald Bray. Defendants Gonzalez and Bray lived in the same trailer park, as did a mutual friend named James Mahurin. In September 2001, about five days before the murder, Mahurin was talking with the three defendants in defendant Brays trailer home. Defendant Gonzalez, in an angry tone of voice, said that he got jumped by about four men who attacked him because [s]upposedly he brought an informant or something to their place. Gonzalez said he wanted to go back there to fight, in retaliation for being jumped. At trial, Mahurin was asked if Gonzalez told the group that anyone who went back with him to help fight could take any drugs and money they found there. Initially, Mahurin denied the statement but later admitted that Gonzalez possibly made that statement.

On September 18, 2001, the day of the murder, the three defendants dropped by Mahurins trailer to drink beer and talk. Mahurin asked Gonzalez what he was going to do that night, and Gonzalez said [s]ee what shit we can get into. Gonzalez had used that phrase before, and Mahurin understood Gonzalez to mean that he intended to go out and have fun. Defendants left Mahurins trailer together around dusk, and walked toward Brays trailer.

Defendant Brays mother returned home from work in the early evening of September 18, 2001, to find her son drinking with his girlfriend and defendants Gonzalez and Tamez. The group talked for a couple hours, and discussed the then-recent 9-11 terrorist attack on the World Trade Center in New York City. Gonzalez remarked to Brays mother that we need to kill [the terrorist Osama] [b]in Laden. Gonzalez also said, [d]ont worry, [b]in Laden will get his just like Salvador will.[3]

The three defendants left the Bray trailer, and met up at Gonzalezs home. According to Gonzalezs girlfriend, Evangelina Arana, Gonzalez asked to borrow her car, and she said no because he was not insured. Arana offered to take Gonzalez wherever he wanted to go. Gonzalez said he wanted to go to a store. Arana started driving toward the store with the three defendants in the car but Gonzalez redirected her past the store to the victims apartment building.

Two of the victims, Figueroa and Sanchez, had been playing basketball that night with other men and returned to the apartment complex around 8:30 p.m. Sanchez saw a car in the parking lot with four occupants: a female driver and three passengers wearing red bandanas covering their faces and hooded sweaters with the hoods pulled over their heads. The driver Arana testified that defendant Gonzalez was playing with his folding work knife as he sat in the car, opening and closing the knife.

Sanchez testified that the car drove up in front of the victims, and the car occupant sitting in the rear on the passenger side yelled puro norte at the victims and made a hand gesture like a gunwith the thumb up, the first two fingers pointing straight out, and the other two fingers pulled in. According to the driver Arana, defendant Bray was in the rear seat on the passenger side. Arana testified that she saw Bray thr[o]w a four by holding out four fingers but she did not notice any other hand gestures. Arana also testified that defendant Gonzalez taunted the victims, yelling where are your friends? Bray yelled out of the car Whats up, putos? Puto is a derogatory Spanish word that was variously translated at trial.

C. The attack and murder

Defendant Gonzalez told Arana to park the car on a side street, and all three defendants left the car and moved together toward the victims apartment. Arana testified that defendant Tamez picked up a stick while walking toward the apartment. Sanchez saw Gonzalez and two other men approaching, and one of Gonzalezs companions had a small wooden bat or club in his hand, about 14 inches long. Victims Sanchez and Figueroa ran inside the apartment pursued by the three defendants. The victims ran through the living room and into a bedroom. Sanchez tried to shut the bedroom door against the force of all three defendants, who were pushing it open. One of the assailants reached inside and hit Sanchez in the face with the bat. The force of the blow caused Sanchez to release his grip on the door, and two assailants came inside the dark bedroom.

Sanchez testified that one of the two assailants went after him, and the other attacked Figueroa. The third man stood in the bedroom doorway. The man who went after Sanchez stabbed him repeatedly. Sanchez said another man stabbed Figueroa. But it was dark in the bedroom, and Sanchez was against a wall and could not always see what was happening to Figueroa across the room. It was also too dark in the bedroom for Sanchez to see which of the three defendants entered the bedroom, or who stabbed him.[4] Sanchez was stabbed 11 or 12 times. He suffered stab wounds to his neck, back, and arm. Some of the wounds were about five inches in length and penetrated down through the skin and fatty tissue to the muscle. Sanchezs lung was lacerated and chest blood vessels were severed. His injuries were life threatening, required emergency surgery, and necessitated hospitalization for a week.

Figueroa did not survive the attack. He died from multiple stab wounds to his chest and neck. Figueroa was stabbed eight times, including twice in the heart. One of the fatal stab wounds penetrated about six inches. A pathologist testified that there are few ways to determine whether stab wounds are made by one or more instrument, and that it was not possible to say whether Figueroas wounds were inflicted by one knife or more. The pathologist opined that a single-edged blade caused the deeper stab wounds because the wounds are rounded on one side and bluntly squared off on the other side. The deepest wound required a blade length of at least four and one-half inches. The shallower wounds are inconclusive; they could have been made with either a double-edged knife or a single-edged knife with a tapered tip. No wounds were made with a serrated knife. Figueroa also suffered blunt trauma, bruising injuries consistent with being struck by something. Bruising was sustained on Figueroas head, shoulder and rib areas and showed a distinct, repeating ridge pattern in an L shape approximately six inches by one inch.

Figueroas roommate, victim Ceja, was asleep in a different bedroom when the attack began. Ceja awoke to the sound of fighting and escaped through a bedroom window. Once outside, Ceja saw a man leave the apartment and come toward him with a nunchaku, which is a weapon made of two sticks connected with a chain. At trial, defendant Bray was identified as the owner of a nunchaku by several people.

The assailant struck Ceja in the face and on the arm with the nunchaku. The force of the blow to Cejas face was so great that it lacerated his face, broke his nose, and required a physician to scrape the weapons paint off Cejas nasal bone. In addition to the man who attacked Ceja, Ceja also reported seeing two other men leave the apartment.

A neighbor heard noise coming from the victims apartment, and Ceja ran up with a bloody nose and said he had been beaten up with some chukkas. The neighbor saw a man wearing a kerchief over his face fleeing toward the street, and the neighbor threw a lunch pail at the assailant but missed hitting him. The assailant stopped and picked up the lunch pail and the neighbor ran back inside his apartment. The lunch pail broke through the window.

The three defendants returned to Aranas car. Defendant Bray was carrying a nunchaku and defendant Gonzalez had his work knife, with blood on it. Arana drove away, and Gonzalez told Bray that Gonzalez had gotten them back. Bray replied that he had hit somebody in the face with the nunchakas [sic]. Defendant Tamez said that he kicked and hit somebody with a stick.

D. The arrests

Arana drove defendants Tamez and Bray to Brays trailer home, then took Gonzalez to work at the Asti Winery. Gonzalez operated a wine filter, where a cutting tool is useful for opening bags. But Gonzalez did not take his work knife with him that night. Gonzalez told Arana to get rid of his knife, and she drove to Lake Sonoma and dropped the knife in the water. Victim Sanchez identified Gonzalez as one of the assailants, and the police arrested Gonzalez at work. Gonzalez did not have his customary work knife on him when he was arrested.

Gonzalezs home was searched and the police found, in his bedroom, gang-related items including red clothing (Norteno gangs wear red clothes), photographs of people throwing hand signs associated with the Norteno gang, and a videotape entitled Connected by Honor, a video made by and for Norteno gang members that glorifies gang life. The police questioned Gonzalezs girlfriend, Arana, and she identified defendants Bray and Tamez as Gonzalezs accomplices in the attack.

The police went to Brays home with a search warrant, and he refused their demands to come outside. The police kicked in the door. The police noticed abrasions on Brays knuckles. Brays girlfriend made the same observation the night before when Bray returned home with Tamez, and also noticed that Bray had a swollen lip. Bray told his girlfriend that he had been in a fight in Cloverdale.

The police searched Brays bedroom and found a plastic and foam nunchaku; no wooden nunchaku was recovered. The police also discovered shoes with Tamezs blood on them, a red bandana, and two knives. One knife, a survival type serrated knife with a compass on top, was found in a safe in the closet in Brays bedroom. Another knife, found in a dresser drawer, was a single-edged, tapered-blade knife with a multi-colored handle and brown sheath. VHN was carved into the sheath, with X and 4 scratched in between the three letters. VHN is a known designation for the Varrio Healdsburg Norteno gang, and X4 is a gang symbol for 14, a number used by the Norteno gang (because the letter N of Norteno is the 14th letter of the English alphabet). Brays bedroom also contained a compact disk with Norteno rap music, a Norteno cartoon, and photographs of Bray throwing gang signs and socializing with known gang members.

The police also arrested defendant Tamez the morning after the murder, and searched the house where they located him. The police found two wooden dowels tied with a red bandana, and other items of red clothing. There was a wooden sign on the wall with H-Town in red. H-Town is a Norteno gang. The H stands for Healdsburg, a town near Cloverdale. A search of the residence also found photographs depicting known gang members, billy clubs, and a newspaper article reporting a Norteno attack on a rival gang member.

At the time of his arrest, Tamez had several gang tattoos on his body: a joker figure holding a smoking gun (Tamezs gang moniker is Joker); the number 14; WSN (for Westside Windsor, a Norteno gang); and the word Norte in large letters across his upper back. Norte is short for Norteno, meaning Northerner. The police also saw that Tamez had an open, two-inch cut on his left forearm. At trial, the treating physician testified that the most likely cause of the injury was a knife sharp instrument. Tamez told the arresting police officers that he had cut himself the night before while on the living room couch, and pointed the police to a serrated kitchen knife on the floor next to the couch. Tamez said he kept the knife next to the couch for protection, in case someone broke into the house. The knife was photographed but not collected as evidence.

A trail of blood was found at the murder scene that ran from the apartment building to the street. It was Tamezs blood. Tamezs blood and fingerprint were also found on Aranas car.

E. Expert testimony on gangs

Detective James Lane of the Santa Rosa Police Department testified as an expert on criminal street gangs. He described the formation in California of the rival Surenos (Southerners) and Nortenos (Northerners) gangs, and the various symbols they use to identify themselves. Detective Lane explained that a gangs ability to instill fear is the source of its power, so a gang works hard to maintain its reputation for violence. Gang members will retaliate if one of their members loses a fight in order to retain the gangs reputation. Detective Lane described several recent crimes committed by the Norteno gang, including shootings and stabbings in rival gang territory.

The detective opined that defendants were Norteno gang members at the time of the September 2001 attack at the Cloverdale apartment. Detective Lane based his opinion about defendant Tamez on a number of points, including the reports of other police officers that Tamez identified himself to those officers as a Norteno gang member in 1996, 1997, and 1999. The detective also noted that Tamez associated with, and had been previously arrested with, known Norteno gang members. Tamez also had gang tattoos on his body (including the word Norte written in large letters across his back), dressed in red clothing, and was arrested in a house containing gang paraphernalia and billy clubs that could be used as weapons. Detective Lane observed that it was common for gang members to have weapons available inside their houses.

In concluding that defendant Bray was a gang member, the detective relied upon Brays previous police detentions and contacts from 1998 to 2001. On two occasions in 1998, Bray was stopped in vehicles containing known Norteno gang members. On one of those occasions, Bray and a Norteno gang member were seen leaving the area of a reported fight. In 1999, Bray was again stopped by the police, and cited for alcohol violations, while in the company of a Norteno gang member. That same year, Bray was assaulted by Sureno gang members. Bray was arrested in both 2000 and 2001, and each time he was wearing red clothing and armed with a knife. In early 2000, Bray admitted to the police that he was an associate of the H-Town Norteno gang but had not been jumped in, meaning that he was a gang participant but not yet a full-fledged member. The detective further noted that Bray had knives and gang paraphernalia in his bedroom at the time of his arrest.

Detective Lane testified that defendant Gonzalez had numerous police contacts since 1996, and was often in the company of known Norteno gang members. In 1996, Gonzalez painted gang graffiti, including Norte 14. In 1996 and 1999, Gonzalez was with known gang members when arrested for assault. In the latter incident, Gonzalez stabbed a Sureno gang member. In 1999, Gonzalez was with a Norteno gang member who scratched XIV on a car. In 2000, Gonzalez reportedly struck a woman for dating a Sureno, and was arrested in the presence of Norteno gang members. The detective also observed that Gonzalez, like Bray, had gang paraphernalia in his home at the time of his arrest in the present case.

Defendant Bray presented his own expert on criminal street gangs, James Hernandez, a professor of criminal justice. Professor Hernandez opined that defendants were not active participants in a criminal street gang. The professor testified that part of youth is looking for an identity, and being a Norteno is an identity. Some individuals claiming to be Nortenos are hard core guys who are actual gang members committing street crimes but others are just kind of doing their thing and adopting an identity without engaging in criminal activity. Professor Hernandez maintained that the general designation Norteno is not a gang; only specific subsets are gangs. The professor acknowledged that defendant Bray previously claimed association with a specific Norteno subset based in Healdsburg but opined that Bray was not an active gang member and based that opinion on the fact that Bray had since moved away to a different town. The professor cited a statistic that 69 percent of individuals in a gang stay for a year or less. Professor Hernandez also opined that the attack at the Cloverdale apartment was the result of a personal vendetta.

On cross-examination, the professor conceded that the Norteno subset Westside Windsor is a gang and opined that defendant Tamez was a gang member when he was tattooed with that gangs name. However, Professor Hernandez emphasized that people change. On a similar basis, the professor dismissed evidence that Bray had a knife sheath marked with the name of a Norteno subset. Professor Hernandez suggested that it was not clear when the sheath was carved with the gang name. As for defendant Gonzalez, the professor concluded that Gonzalez identifies with the Nortenos but found no structural involvement with a subgroup.

F. Verdict

A jury convicted all three defendants of first degree murder of Figueroa ( 187, subd. (a); count one); attempted premeditated murder of Sanchez ( 187, subd. (a), 664; count two); assault with a deadly weapon upon Ceja ( 245, subd. (a)(1); count four); burglary ( 459; count five); and participation in a criminal street gang ( 186.22, subd. (a); count six). The jury found that each defendant personally inflicted great bodily injury on Sanchez (counts two and five) but found only defendant Bray liable on that enhancement for the assault upon Ceja. ( 12022.7, subd. (a).) The jury rejected allegations that the murder, attempted murder, assault, and burglary were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).) The jury likewise rejected the special circumstance allegation that Figueroas murder was carried out to further the activities of a criminal street gang. ( 190.2, subd. (a)(22).)

G. Sentencing

All defendants are serving life terms. Defendant Tamez received a second strike term of 50 years to life for Figueroas murder (count one); a consecutive sentence of life with possibility of parole for the attempted murder of Sanchez with three additional years for inflicting great bodily injury (count two); a consecutive term of eight years for the assault upon Ceja (count four), and a consecutive 16 month sentence for gang participation (count six).[5] The court stayed the burglary term. ( 654.) Tamezs sentence was further enhanced by five years for a prior conviction and one year for a prior prison term, making a total determinate term of 18 years, four months, in addition to the two indeterminate life terms. ( 667, subd. (a)(1), 667.5, subd. (b).)

The court sentenced defendant Gonzalez to 25 years to life for Figueroas murder (count one); a consecutive sentence of life with possibility of parole for the attempted murder of Sanchez with three additional years for inflicting great bodily injury (count two); a consecutive term of four years for the assault upon Ceja (count four); and a consecutive 8 month sentence for gang participation (count six). The court stayed the burglary term. ( 654.) The aggregate determinate sentence was seven years, eight months, in addition to two indeterminate life terms.

Defendant Bray was sentenced to 25 years to life for Figueroas murder (count one). The court stayed the burglary term and made all other terms concurrent: a concurrent sentence of life with possibility of parole for the attempted murder of Sanchez with three additional years for inflicting great bodily injury (count two); a concurrent term of four years for the assault upon Ceja with three additional years for inflicting great bodily injury (count four); and a concurrent three-year sentence for gang participation (count six).

In selecting concurrent terms, the court explained that it found Bray to be the least culpable of the three defendants. The court referred to Bray as an intoxicated tag-a-long and concluded that [t]here was no evidence that Bray ever had a knife or that he stabbed anybody. However, the court denied a defense motion to strike the great bodily injury enhancement for the attempted murder of Sanchez.

Ii. discussion

Defendants raise multiple claims on appeal: (1) the court erred in admitting evidence that knives were found in the rooms where defendants Tamez and Bray were arrested shortly after the stabbings; (2) the court erred in excluding a pathologists testimony about the character of the wounds inflicted on the surviving victim Sanchez and defendant Tamez; (3) trial counsel was ineffective in failing to request a more specific limiting instruction regarding hearsay relied upon by the gang experts in forming their opinions; (4) the court erred in instructing the jury with CALJIC No. 8.66.1 concerning concurrent intent for attempted murder under a kill zone theory; (5) the court erred in instructing the jury with CALJIC No. 17.20 concerning a group beating that inflicts great bodily injury; (6) the court erred in instructing the jury with CALJIC No. 3.02 on accomplice liability for natural and probable consequences of the crimes committed; (7) the evidence is insufficient to support a conviction for participation in a criminal street gang; and (8) the evidence is insufficient to support the jurys finding that each defendant personally inflicted great bodily injury upon the surviving victim Sanchez.[6]

We reject all but the last claim. We modify the judgments to strike the sentencing enhancement for personally inflicting great bodily injury, but otherwise affirm. We now turn to a discussion of each of these claims in turn.

A. Evidence that defendants Tamez and Bray possessed knives was properly admitted

The police recovered two knives from Brays bedroom when he was arrested the morning after the Cloverdale apartment stabbings, and the knives were admitted in evidence at trial. The police also saw a knife next to Tamezs living room couch when he was arrested that same morning, and a photograph of that knife was likewise admitted in evidence. Defendants Bray and Tamez contend that this evidence was irrelevant and wrongly admitted because the knives could not have been used to stab the victims. The contention is unsupported by the record.

Generally, all relevant evidence is admissible in evidence. (Evid. Code,  351.) Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.  (People v. Farnam (2002) 28 Cal.4th 107, 156, quoting Evid. Code,  210.) A defendants possession of a knife that could have been used in the commission of a recent crime tends to prove that defendant was the perpetrator and is thus relevant, admissible evidence. (Farnam, supra, 28 Cal.4th at pp. 156-157.) The prosecution need not conclusively connect a defendants knife to the crime scene for the knife to be admissible in evidence. (Id. at p. 157.)  If a victims wound could have been caused by a specific type of weapon or instrument, such a weapon or instrument found in defendants possession is admissible in evidence. Such a weapon or instrument is considered relevant on the theory that a trier of fact may reasonably draw an inference from defendants possession of the weapon or instrument to the fact that he used the weapon or instrument to commit the offensea disputed fact of consequence to the action.  (Ibid., italics in original.)

Defendant Tamez maintains that evidence of his knife possession was wrongly admitted because there was no evidence linking the knife with the charged crimes. The knife observed by the police when Tamez was arrested the morning after the stabbings had a serrated blade. The pathologist who studied the murder victim Figueroas injuries testified that there was no indication of a serrated knife being used. Defendant Bray makes the same argument against admission of one of his two knives, which also had a serrated blade. Bray further contends that his second knife was also inconsistent with the murder victims wounds for the separate reason that the single-edged blade on that knife was only four inches long, and the pathologist testified that the knife used to inflict the murder victims six-inch chest wound had to be at least four and one-half inches long. In fact, the record is equivocal on the dimensions of the second knife. A police officer testified that Brays single-edged knife blade was approximately 4 inches long, which is close to the minimum length necessary to inflict the deepest of Figueroas wounds. (Italics added.) More importantly, Figueroa also suffered shallower wounds that could have been caused by a knife with a blade length of four inches or less. In any event, defendants focus upon Figueroas injuries is misdirected because the evidence shows that any of defendants knives could have been used to stab the surviving victim, Sanchez.

Sanchez suffered multiple stab wounds of varying lengths up to five inches, and unmeasured depths that penetrated down through the skin and fatty tissue to the muscle. The knives found in defendants possession hours after Sanchez was stabbed were consistent with such wounds. Defendants argue that general consistency is not enough, and that the prosecution was required to present evidence describing the type of knife used to inflict the victims injuries to match defendants knives to the injuries. Defendants are mistaken.

Evidence of knives belonging to a defendant are properly admitted at trial even though the knives cannot be directly or conclusively connected to the crimes. (People v. Farnam, supra, 28 Cal.4th at p. 157.) It is enough that defendants knives could have caused the victims injuries, even if many other knives could also have been used. (Ibid.) In Farnam, the California Supreme Court upheld admission of a knife found in defendants possession two months after a homicide where the perpetrator cut the telephone cords and screen door at the victims residence. (Id. at pp. 156-158.) The knife was held admissible because the blades length and shape were similar to the slit in the screen door and the knife could have been used to cut the telephone cords, even though there was evidence that any other sharp, single-bladed object, such as a scalpel, a kitchen knife, or part of a scissors blade, could also have cut the items. (Id. at pp. 156-157 & fn. 26.) The court concluded that the fact that many persons may possess a sharp instrument capable of cutting the cords and screen door may diminish the strength of the evidence, but it does not make it irrelevant. (Id. at p. 157.) Likewise, defendants possession of knives that could have inflicted Sanchezs injuries was relevant evidence and properly admitted even though the knives were not conclusively connected to the injuries sustained.

Aside from tending to prove that defendants Tamez and Bray were perpetrators of the attempted murder, the knife evidence was also properly admitted to prove other disputed facts of consequence to the action. Defendants were charged with criminal street gang participation, and the gang expert testified that it was common for gang members to have weapons available inside their houses. The expert relied, in part, upon weapon possession to support his opinion that defendants were active gang participants. Brays possession of the single-edged knife was of special note because the knife sheath was carved with gang insignia. Bray suggests that the sheath should have been offered in evidence without the knife. But the presence of the knife showed that Bray kept a weapon readily available in his home, which the gang expert said was consistent with gang behavior. In any event, Brays defense in a stabbing case would not have been materially advanced by withholding the knife and presenting an empty Norteno-inscribed knife sheath to the jury. The knife evidence was properly admitted.

B. The exclusion of testimony about Sanchezs and Tamezs wounds was not prejudicial

Defendants Tamez and Bray contend that the trial court erred in sustaining their codefendant Gonzalezs objection to the testimony of a pathologist concerning injuries sustained by the surviving victim Sanchez, and Bray further contends that the court erred in excluding similar testimony about Tamezs injury. The trial court excluded prosecution testimony about the nature of Sanchezs and Tamezs injuries because the prosecutor had not notified defense counsel in pretrial discovery that the witness would testify on those subjects. We conclude that the court erred in excluding the evidence but that defendants Tamez and Bray were not prejudiced by the discovery sanction imposed on the prosecution.

At trial, Gregory Reiber, M.D., a pathologist, reviewed a report and photographs from Figueroas autopsy and testified about the nature of the injuries and character of the knives that caused those injuries. When the prosecution asked whether Figueroas stab wounds were consistent with one or more than one instrument, Dr. Reiber said there was no definitive answer. Dr. Reiber explained that the deeper stab wounds showed a pattern of one blunt, squared off side across from a rounded cut that is typical of a single-edged blade but that a couple shallower stab wounds were equivocal and could have been caused by either a single-edged or a double-edged blade. Shallow stab wounds do not penetrate deeply enough to reveal the character of a knife. A shallow wound with two pointed ends could be caused by a weapon with two sharpened edges or a tapered single-edged blade that narrows to a thin tip at the end.

The prosecution then asked Dr. Reiber to review photographs of Sanchezs stab wounds, and asked whether the surviving victims wounds were consistent or inconsistent with the instrument that caused the deceased victims injuries. Dr. Reiber testified that several of the deepest wounds were consistent with a single-edged blade while other punctures had sharp points at both ends of the wound more consistent with a double-edged blade. At this juncture, defendant Gonzalezs counsel objected.

In a hearing outside the jurys presence, Gonzalezs counsel argued that the prosecutor had not provided notice that the witness would testify on the subject of Sanchezs wounds and had not provided discovery relating to that subject of testimony. The prosecutor argued that defendants received all required discovery. She noted that the expert had been named as a prosecution witness months earlier, and that the defense was given the experts curriculum vitae and could have interviewed him. The prosecutor explained that there were no expert reports to disclose. The pathologist reviewed Sanchezs medical records before trial but never rendered a final opinion. The pathologist first revealed his opinions about Sanchezs wounds to the prosecutor just minutes before he testified. The prosecutor offered that the expert would testify that some of the surviving victim Sanchezs injuries appeared to be single-edged, some appeared to be double-edged but in the end, just as in the case of the deceased, [the pathologist] cant say.

The prosecutor said she also wanted to introduce the experts opinion on Tamezs injury. The pathologist had not reviewed the photograph of Tamezs injury until the day of trial. The prosecutor offered that the expert would testify that Tamezs injury appeared to be a single-edged wound that was consistent with the wounds suffered by the victims, although the expert could not say if the same weapon caused all the injuries. Gonzalezs counsel objected to the proffered testimony about Tamezs injury, and defendant Tamezs counsel joined in that objection. Tamez did want the pathologist to testify about Sanchezs wounds, and Bray wanted the expert to testify about both Sanchezs and Tamezs wounds.

The trial court sustained Gonzalezs objections; it struck Dr. Reibers testimony about Sanchezs injuries and precluded the prosecution from presenting its proffered testimony about Tamezs injury. The basis for the courts ruling was the prosecutions failure to designate Dr. Reiber as a witness who would testify on those subjects. The court noted that Figueroas autopsy was the only anticipated topic of Dr. Reibers testimony during in limine motions. The prosecutor protested that the People had no information that they failed to disclose and the court said I understand that. All Im saying is [there should have been] notification to [defense] counsel that you anticipated this witness being called and asked to testify as to these areas.

On appeal, the People continue to protest the trial courts ruling. The People argue that the trial court erred in finding a discovery violation but that the error was harmless. We agree on both points. Discovery in criminal cases is strictly governed by sections 1054 to 1054.10. These provisions are the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys . . . . ( 1054.5, subd. (a).) Courts may not broaden the scope of the discovery mandated by these provisions. (People v. Tillis (1998) 18 Cal.4th 284, 294.) In criminal cases, the prosecutor must disclose, among other information, [t]he names and addresses of persons the prosecutor intends to call as witnesses at trial, and [r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial. ( 1054.1, subds. (a), (f).)

Notably, the criminal discovery statutes do not provide for the extensive pretrial discovery of expert testimony as contained in the Code of Civil Procedure. In civil cases, a party may demand an exchange of expert witness information that includes a statement of the general substance of the testimony that the expert is expected to give. (Code Civ. Proc.,  2034.210, 2034.260, subd. (c)(2).) There is no comparable obligation in criminal cases. ( 1054.1.) The prosecutor was therefore not required to notify defense counsel about the subject matter of the expert witnesss testimony, contrary to the trial courts conclusion. The prosecutor satisfied all mandated discovery obligations by timely providing the defense with the name and address of the witness. ( 1054.1, subd. a).) The prosecutor also gave the defense the witnesss curriculum vitae, which disclosed the witnesss area of expertise. There were no reports or statements to disclose. ( 1054.1, subd. (f).) The expert reached no conclusions about Sanchezs or Tamezs injuries until the day of trial.

Although the criminal discovery statutes have been interpreted as prohibiting counsel from deliberately failing to learn or acquire information to evade disclosure (In re Littlefield (1993) 5 Cal.4th 122, 133), that is not the situation here. There is no indication that the prosecutor waited until trial to ask the expert to study Sanchezs and Tamezs wounds so she could avoid the disclosure of expert statements and sandbag the defense. The trial court accepted the prosecutors claim that the subject did not arise until she consulted with the witness immediately before he testified. There was no violation of the discovery requirements of Penal Code section 1054.1.

Even if Penal Code section 1054.1 were interpreted to require prosecutors to identify the substance of a designated expert witnesss testimony, preclusion of Dr. Reibers testimony was not the proper sanction in this case. Preclusion of a witnesss testimony not disclosed before trial is the ultimate sanction and is justified only where the nondisclosure was willful and for the purpose of gaining a tactical advantage, and where lesser sanctions, such as a continuance, fines, or jury instructions, would be inadequate. ( 1054.5, subds. (b), (c); People v. Gonzales (1994) 22 Cal.App.4th 1744, 1754-1759.) There was no showing either that the prosecutor willfully failed to disclose the substance of Dr. Reibers testimony or that lesser sanctions were inadequate.

The courts ruling, while erroneous, was harmless beyond a reasonable doubt. There was nothing exculpatory in Dr. Reibers proffered testimony. The testimony did not, as defendants Tamez and Bray contend, suggest that there was only one knife and that defendant Gonzalez was the only person who stabbed anyone. At most, Dr. Reibers testimony showed only that the injuries of the victims and Tamez could have been caused by a single-edged, rather than a double-edged, blade. The witnesss proffered testimony cannot be stretched to suggest that the same single-edged blade caused all injuries. The scenario posed by defendants Tamez and Bray, of a lone knife-wielding assailant, finds no support in Dr. Reibers proffered testimony and is plainly contradicted by other trial evidence. The only one present at the stabbings who testified at trial was the surviving victim Sanchez, and he testified that he was stabbed by one person while Figueroa was simultaneously stabbed by another person across the room.

In any event, defendants were not precluded from calling Dr. Reiber in their own case or producing evidence from another source on the nature of Sanchezs and Tamezs injuries. The trial courts ruling limited the evidence presented by the prosecution, not the evidence presented by the defense. The court expressly told defendant Tamezs counsel that, if counsel wanted Dr. Reiber to testify about Sanchezs injuries, you can subpoena him as your own witness and put him on for that as far as Im concerned. Defendants were not harmed by a discovery sanction that limited only prosecution evidence.

C. Defense counsel was not ineffective in agreeing to a hearsay limiting instruction

Defendants argue that their trial attorneys rendered ineffective assistance of counsel by agreeing to a prosecution-drafted jury instruction limiting the use of hearsay relied upon by the expert witnesses on criminal street gangs. Defendants insist that trial counsel should have requested a differently-worded limiting instruction.

The parties agreed to the following instruction, which was read to the jury: Evidence has been introduced through the testimony of Detective Jim Lane and Professor James Hernandez regarding prior contacts between the defendants and law enforcement members; acts committed by the defendants and predicate[] offenses involving other persons. This evidence is not to be used as evidence of bad character or to show a propensity to commit certain crimes. The limited purpose of this evidence is to determine the basis of the opinion of the expert[s] regarding gang affiliation. When the instruction was discussed and adopted, defendant Tamezs trial attorney remarked that the instruction is well worded and I think its a good instruction.

On appeal, defendants argue that their trial attorneys were incompetent for agreeing to the limiting instruction as worded, and should have insisted on a different version previously proposed by the defense. That version consisted of two related instructions. The first proposed defense instruction stated: Evidence has been introduced that the defendants are members of a criminal street gang or gangs. Such evidence, if believed, was not received, and may not be considered by you, to prove that the defendants are persons of bad character, or that they have a disposition to commit crimes. The second defense instruction stated: Evidence has been introduced through the testimony of Det. James Lane about prior contacts of the defendants with law enforcement, prior bad acts committed by the defendants, and predicate offenses committed by other persons. This evidence is to be considered by you only to establish the basis for the Det. Lanes opinions, and not for the truth of the matters stated therein.

Defendant Gonzalez argues (and his codefendants join in the argument) that the instruction read to the jury omitted a crucial element that was contained in the second instruction proposed by the defense, to wit, that the voluminous hearsay evidence that Lane acquired from police reports, interviews with other gang members, and interviews with other law enforcement agents was not admissible for its truth. There was no omission.

The jury was clearly advised that the hearsay evidence was to be used solely to determine the basis of the experts opinions, and for no other purpose. The jury was expressly told that the evidence was not to be used as evidence of bad character or to show a propensity to commit crimes. While the instruction did not use the exact phrase now advocated by defendants, the instruction clearly advised the jury that the evidence was not to be used to show the truth of the matters stated in the evidence, that is, not to be used to show that defendants committed prior crimes. The jury was firmly admonished that the evidence was admitted for the limited purpose of establishing the basis for the experts opinions. Further elucidation was unnecessary. There is no reasonable likelihood that the jury misunderstood the limiting instruction, especially in light of the prosecutors closing argument that [t]he only way you can use the information about defendants prior police contacts is for purposes of looking at the expert opinion of the witness in deciding whether defendants were gang participants. The prosecutor cautioned the jury that [y]ou cant say, well, you know, we heard something about Ivan Gonzalez stabbing a Sureno, therefore, theres this propensity to stab. No. Limited purpose. Only for purposes of the experts opinion.

Moreover, it is not reasonably probable that defendants would have been acquitted had the instruction specifically stated that hearsay used by Detective Lane in formulating his opinions could not be used for the truth of the matters stated. The evidence of defendants guilt was overwhelming. Defendants were placed at the scene of the crime by numerous witnesses and forensic evidence. Defendants also made damning admissions. Defendant Gonzalez threatened that Figueroa would get his and, after the stabbings of Figueroa and Sanchez, bragged that he had gotten them back. Defendants Tamez and Bray likewise bragged about their participation in the attack. A jury instructed in slightly more detail about hearsay evidence would not have rendered a different verdict.

D. The jury was properly instructed with CALJIC No. 8.66.1 on concurrent intent to kill

Defendants were convicted of the murder of Figueroa, who seems to have been their primary target, and the attempted murder of Sanchez, who was with Figueroa and suffered about a dozen stab wounds during the attack. Defendant Gonzalez (in an argument joined by his codefendants) contends that the attempted murder conviction must be reversed because the jury was misinstructed on the element of intent to kill.

Defendants concede that the jury was properly instructed with CALJIC No. 8.66, which provides, in relevant part, that [i]n order to prove attempted murder, each of the following elements must be proved: [] 1. A direct but ineffectual act was done by one person towards killing another human being; and [] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.

Defendants dispute lies with CALJIC No. 8.66.1, which, at the time of trial, provided as follows: A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the kill zone. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. [] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a kill zone is an issue to be decided by you. [7]

CALJIC No. 8.66.1 is a restatement of the California Supreme Courts ruling in People v. Bland (2002) 28 Cal.4th 313, 329 (Bland). In Bland, the court explained that attempted murder is not established unless the defendant specifically intended to kill the alleged victim. (Id. at p. 328.) However, the fact that a defendant wanted to kill a particular target does not preclude finding that he also, concurrently, intended to kill others. (Id. at p. 329.) A concurrent intent to kill may be evidenced by the nature of the attack, such as where the attack creates a  kill zone.  (Ibid.)  The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed.  (Id. at pp. 329-330.) In Bland, the court upheld a conviction for the attempted murder of car passengers struck by a flurry of bullets defendant and a cohort fired at a fleeing car driven by the primary victim. (Id. at pp. 330-331.)

Defendants acknowledge that CALJIC No. 8.66.1 reflects a California Supreme Court ruling but nonetheless challenge the instruction on two grounds: (1) [t]he instruction was unnecessary and argumentative, amounting to an improper prosecution pinpoint instruction; and (2) the instruction misstated the law and was confusing to the jury because it suggested that the jury could infer an intent to kill based merely on an intent to harm.  We conclude that the instruction was properly given, and adequately stated the law.

A jury instruction may pinpoint or amplify general principles of law by relating those principles to a theory of the case at trial. A criminal defendant is entitled, on request, to an instruction pinpointing the theory of his defense. (People v. Wharton (1991) 53 Cal.3d 522, 570.) A prosecutor, too, may present to the court any written charge on the law. . . . ( 1127.) A pinpoint instruction is argumentative, and improper, only if the instruction attempts to relate particular facts to a legal issue, or advocates the effect of certain facts on identified theories. (Wharton, supra, at p. 570.) In a proper instruction, [w]hat is pinpointed is not specific evidence as such, but the theory  of the defendants case. (People v. Wright (1988) 45 Cal.3d 1126, 1137, italics in original.)

Here, CALJIC No. 8.66.1 pinpointed the general principle of law on intent to kill by relating it to a theory of the caseconcurrent intent to kill someone in the kill zone of an attack. The instruction was not argumentative. It stated accepted principles of law plainly and dispassionately, without any mention of the specific evidence in the case or any expression of opinion on the evidence. Nevertheless, defendant Gonzalez argues that the instruction was inappropriate because it was not necessary and misdirected the jurys attention from the central elements of attempted murder. Gonzalez notes that the Bland court commented that the kill zone concurrent intent theory is not a legal doctrine requiring special jury instructions . . . . [I]t is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others. (Bland, supra, 28 Cal.4th at p. 331, fn. 6.) The courts comment means only that a court has no sua sponte duty to instruct on the kill zone concurrent intent theory. Our high court did not preclude instruction on that theory upon request and in an appropriate case.

CALJIC No. 8.66.1 may be of great assistance in the right case, as recently demonstrated in People v. Anzalone (2006) 141 Cal.App.4th 380, 392.) In Anzalone, the prosecutors closing argument to the jury in an attempted murder case invoked the concept of concurrent intent to kill outlined in Bland, supra, 28 Cal.4th 313, but the jury was not instructed with CALJIC No. 8.66.1. (Anzalone, supra, at p. 392.) The court of appeal observed: The danger in the trial court not instructing on a legal concept relied on by the prosecution is that it totally leaves to the prosecutor the defining of that legal concept. In this case the prosecutor got it wrong. (Ibid.) The conviction was reversed. (Id. at p. 397.) The trial court here properly administered CALJIC No. 8.66.1 rather than leaving a legal concept undefined by the court.

Defendants claim that the instruction misstated the law is similarly unavailing. As noted above, CALJIC No. 8.66.1 is a restatement of a California Supreme Court ruling. (Bland, supra, 28 Cal.4th at p. 329.) It is true, of course, that the instruction selects particular language from Bland, and defendant Gonzalez seems to suggest that the chosen language taken out of context does not fairly represent the holding of Bland. According to Gonzalez, the instruction went awry in stating that [t]he intent [to kill] is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. (Italics added.) The instruction, it is argued, allowed the jury to find an intent to kill based on a lesser intent to harm. Gonzalez notes that CALJIC No. 8.66.1 has since been revised to eliminate the reference to harm, and currently provides that [t]he intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. (CALJIC No. 8.66.1 (Spring 2007 ed.))

We agree with Gonzalez that the revised version of CALJIC No. 8.66.1 is a better statement of the kill zone theory. But we disagree with his argument that the former version misled the jury. The instruction given to the jury begins by explaining that [a] person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. (Italics added.) The instruction concludes by informing the jury that it must decide whether defendants actually intended to kill the victim, either as a primary target or as someone within a kill zone.  (Italics added.) The overall thrust of the instruction relates to the defendants intent to kill, not their intent to harm.

Moreover, the suitability of jury instructions is determined by the whole charge given to the jury, not individual instructions or parts of individual instructions. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) When CALJIC No. 8.66.1 is read in the context of other jury instructions, particularly CALJIC No. 8.66, it is not reasonably likely that a jury would think that a lesser intent to harm would suffice to satisfy the requirements of attempted murder. The elements of attempted murder, outlined in CALJIC No. 8.66, clearly demand a specific intent to kill. CALJIC No. 8.66 reinforced the requirement that the jury find defendants intended to kill before it could convict them of attempted murder. It must also be recalled that the jury found defendants guilty of willful, deliberate, and premeditated attempted murder. In so finding, the jury necessarily found that defendants acted with a clear, deliberate intent to kill, as set out in the jury instruction on premeditation.

In any event, any error in the use or wording of CALJIC No. 8.66.1 was harmless. The attack on Sanchez, as defendant Gonzalez acknowledges, was violent and severe. It was also plainly intended to kill Sanchez, and very nearly did. Sanchez was stabbed 11 or 12 times. The wounds penetrated down through the skin and fatty tissue to the muscle, lacerated his lung, and severed blood vessels in his chest. Sanchezs injuries would have been fatal but for swift medical intervention. The severity of the attack shows an unequivocal intent to kill.

E. The jury was properly instructed with CALJIC No. 17.20 on great bodily injury

Defendants were each found guilty of personally inflicting great bodily injury upon Sanchez, the surviving stabbing victim. ( 12022.7, subd. (a).) Defendant Bray was additionally found guilty of personally inflicting great bodily injury upon Ceja, whose nose was broken by a nunchaku strike. Defendants claim the great bodily injury finding as to Sanchez must be reversed because the jury was improperly instructed that participation in a group beating of a victim can satisfy the personal infliction requirement of a great bodily injury sentencing enhancement.

In accordance with CALJIC No. 17.20, the jury was instructed (without objection), as follows: When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if 1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or 2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.

Our Supreme Court recently upheld this instruction as a proper statement of the law. (People v. Modiri (2006) 39 Cal.4th 481, 491-502 (Modiri).) The high court rejected the argument, like defendants make here, that CALJIC No. 17.20 omits or lessens the requirement that a defendant personally inflict the victims injury. (Modiri, supra,at pp. 493-494.) The court observed that nothing in the terms personally or inflicts, when used in conjunction with great bodily injury . . . necessarily implies that the defendant must act